EXHIBIT 4.41
FLOW-THROUGH
SUBSCRIPTION AGREEMENT
To: Xxxxxx Gold Corp. (the "Issuer") of 00000 - 00xx Xxxxxx, Xxxxxx, X.X.
X0X 0X0
The undersigned (the "Subscriber") hereby acknowledges that the Issuer is
proceeding with a private placement of units of the Issuer (the "Units") at a
price of $0.35 per Unit, each Unit being comprised of one flow-through common
share in the capital of the Issuer (a "Share") and one common share purchase
warrant of the Issuer (a "Warrant"), and tenders to the Issuer this subscription
offer which, upon acceptance by the Issuer, will constitute an agreement of the
Subscriber to subscribe for, take up, purchase and pay for and, on the part of
the Issuer, to issue and sell to the Subscriber the number of Units set out
below (the "Purchased Securities") on the terms and subject to the conditions
set out in this Agreement.
Number of Units: -------------------------------
Total Purchase Price at $0.35 per Unit:
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PLEASE MAKE CHEQUES AND BANK DRAFTS PAYABLE TO "XXXXXX GOLD CORP."
DATED at __________________, this ________ day of __________________, 2003.
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(Name of Subscriber - please print) (Subscriber's Address)
by: _________________________________ _______________________________
(Official Capacity or Title - please print)
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Authorized Signature (Telephone Number)
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(Please print name of individual whose (Facsimile Number)
signature appears above if different than
the name of the Subscriber printed above). _______________________________
(Email Address)
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DETAILS OF BENEFICIAL PURCHASER IF NOT SAME AS SUBSCRIBER:
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(Name - please print) (Beneficial Purchaser's Address)
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(if space is inadequate please attach a
schedule containing the necessary
information)
REGISTRATION INSTRUCTIONS: DELIVERY INSTRUCTIONS:
_______________________________________ Instructions:
Name
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Account reference, if applicable Account reference, if applicable
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Address Contact Name
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Address
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Telephone Number
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Facsimile Number
PRESENT OWNERSHIP OF SECURITIES
The Subscriber either [CHECK APPROPRIATE BOX]:
[_] owns directly or indirectly, or exercises control or direction over, no
common shares in the capital of the Issuer or securities convertible
into common shares in the capital of the Issuer; or
[_] owns directly or indirectly, or exercises control or direction over,
__________ common shares in the capital of the Issuer and convertible
securities entitling the Subscriber to acquire an additional __________
common shares in the capital of the Issuer.
INSIDER STATUS
The Subscriber either [CHECK APPROPRIATE BOX]:
[_] is an "Insider" of the Issuer as defined in the SECURITIES ACT (British
Columbia); or
[_] is not an Insider of the Issuer.
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MEMBER OF "PRO GROUP"
The Subscriber either [CHECK APPROPRIATE BOX]:
[_] is a Member of the "Pro Group" as defined in the Rules of the TSX
Venture Exchange; or
[_] is not a member of the Pro Group.
This subscription is accepted by Xxxxxx Gold Corp. on the 21st day of November,
2003.
XXXXXX GOLD CORP.
Per:
S/S XXXXXX X. XXXXXXX
Xxxxxx X. Xxxxxxx, President
1. INTERPRETATION
1.1. In this Agreement, unless the context otherwise requires:
(a) "1933 Act" means the United States SECURITIES ACT of 1933, as
amended;
(b) "Acts" means the Alberta Act, the B.C. Act and the Ontario
Act, collectively;
(c) "Alberta Act" means the SECURITIES ACT (Alberta), the
regulations and rules made thereunder and all instruments,
policy statements, blanket orders, notices, directions and
rulings issued by the Alberta Securities Commission, all as
amended;
(h) "B.C. Act" means the SECURITIES ACT (British Columbia), the
regulations and rules made thereunder and all instruments,
policy statements, blanket orders, notices, directions and
rulings issued by the British Columbia Securities Commission,
all as amended;
(i) "BI 72-503" means BC Instrument 72-503 of the British Columbia
Securities Commission entitled "Distribution of Securities
Outside of British Columbia";
(j) "CEE" means Canadian Exploration Expenses, as defined in
subsection 66.1(6) of the ITA;
(k) "Closing" means the day the Purchased Securities are issued to
the Subscriber;
(l) "Commissions" means the Alberta Securities Commission, the
British Columbia Securities Commission and the Ontario
Securities Commission;
(m) "Directed Selling Efforts" has the meaning ascribed to it in
Regulation S;
(n) "Eligible Investor" means:
(i) a person or Corporation whose:
(A) net assets, alone or with a spouse, exceed
$400,000;
(B) net income before taxes exceeded $75,000 in
each of the two most recent years and who
reasonably expects to exceed that income
level in the current year; or
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(C) net income before taxes combined with that
of a spouse exceeded $125,000 in each of the
two most recent years and who reasonably
expects to exceed that income level in the
current year;
(ii) a person or Corporation of which a majority of the
voting securities are beneficially owned by eligible
investors or a majority of the directors are eligible
investors;
(iii) a general partnership in which all of the partners
are eligible investors;
(iv) a limited partnership in which the majority of the
general partners are eligible investors;
(v) a trust or estate in which all of the beneficiaries
or a majority of the trustees are eligible investors;
(vi) an accredited investor as defined in Multilateral
Instrument 45-103; or
(vii) a person or Corporation that has obtained advice
regarding the suitability of the investment and if
the person or Corporation is in a jurisdiction of
Canada that advice has been obtained from an
investment dealer, securities dealer or their
equivalent, registered under the securities
legislation of the jurisdiction;
(o) "Exchange" means the TSX Venture Exchange;
(p) "Exemptions" means the exemptions from the prospectus
requirements of the Acts which are outlined in Part 4 of
Multilateral Instrument 45-103, BI 72-503 and Section 2.3 of
Rule 45-501;
(q) "Exploration Expenditures" means expenditures which qualify
for CEE;
(r) "Exploration Fund" means the exploration fund created from
100% of the proceeds from the sale of the FT Shares, to be
expended on the Exploration Program which will qualify as CEE
under the ITA;
(s) "Exploration Program" means the exploration program which the
Issuer intends to undertake with respect to its properties;
(t) "Flow-Through Subscription Funds" means the subscription
proceeds paid by the Subscriber for FT Shares as provided in
subsection 2.3;
(u) "Foreign Issuer" has that meaning ascribed to it in Regulation
S;
(v) "FT Shares" means the previously unissued common shares in the
capital of the Issuer offered by the Issuer pursuant to the
Private Placement comprising part of the Units;
(w) "ITA" means Income Tax Act (Canada) and the regulations
thereunder, both as amended;
(x) "Multilateral Instrument 45-102" means Multilateral Instrument
45-102 "Resale of Securities" published by the Canadian
Securities Administrators;
(y) "Multilateral Instrument 45-103" means Multilateral Instrument
45-103 "Capital Raising Exemptions" adopted by the Alberta and
British Columbia Securities Commissions;
(z) "Offering Memorandum" means the offering memorandum dated o,
2003, including all documents incorporated by reference
therein and any amendments or supplements thereto, which has
been by the Issuer in connection with the Private Placement;
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(aa) "Ontario Act" means the SECURITIES ACT (Ontario), the
regulations and rules made thereunder and all instruments,
policy statements, blanket orders, notices, directions and
rulings issued by the Ontario Securities Commission, all as
amended;
(bb) "Parties" or "Party" means the Subscriber, the Issuer or both,
as the context requires;
(cc) "Private Placement" means the offering of the Units on the
terms and conditions contained in this Agreement;
(dd) "Purchased Securities" means those Units which the Subscriber
has agreed to purchase under this Agreement;
(ee) "Regulation "S" means Regulation S promulgated under the 1933
Act;
(ff) "Regulatory Authorities" means the Commissions and the
Exchange;
(gg) "Rule 45-501" means Ontario Securities Commission Rule 45-501;
(hh) "Securities" means the Units, the FT Shares, the Warrants and
the Warrant Shares forming part of or issuable on exercise of
the Purchased Securities;
(ii) "Subscription Agreement" means this agreement made between the
Subscriber and the Issuer;
(jj) "Substantial U.S. Market Interest" has that meaning ascribed
to it in Regulation S;
(kk) "United States" has that meaning ascribed to it in Regulation
S;
(ll) "Units" means the units of the Issuer offered by the Issuer
pursuant to the Private Placement, each comprised of one FT
Share and one Warrant;
(mm) "U.S. Person" has that meaning ascribed to it in Regulation S
(which includes, but is not limited to, an individual resident
in the United States and an estate or trust of which any
executor or administrator or trustee, respectively, is a U.S.
Person and any partnership or corporation organized or
incorporated under the laws of the United States);
(nn) "Warrants" means share purchase warrants of the Issuer which
will be issued as part of the Units; and
(oo) "Warrant Shares" means the previously unissued non
flow-through common shares in the capital of the Issuer which
will be issued upon the exercise of the Warrants.
1.2 Time is of the essence of this Agreement and will be calculated in
accordance with the provisions of the INTERPRETATION ACT (British
Columbia).
1.3 This Agreement is to be read with all changes in gender or number as
required by the context.
1.4 The headings in this Agreement are for convenience of reference only
and do not affect the interpretation of this Agreement.
1.5 All references to currency refer to Canadian dollars.
1.6 This Agreement is governed by, subject to and interpreted in accordance
with the laws prevailing in the Province of British Columbia and the
courts of the Province of British Columbia will have the exclusive
jurisdiction over any dispute arising in connection with this
Agreement.
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2. THE UNITS
2.1 Each Unit will be comprised of one FT Share and one Warrant.
2.2 The FT Shares and Warrants will be issued and registered in the name of
the Subscriber or its nominee.
2.3 The aggregate subscription price for the Units will be allocated to the
FT Shares, as to $0.3499 per share and to the Warrants as to $0.0001
per Warrant.
3. THE WARRANTS
3.1 Each whole Warrant will entitle the holder, on exercise, to purchase
one Warrant Share at a price of $0.35 for a two year period following
the Closing.
3.2 The certificates representing the Warrants will, among other things,
include provisions for the appropriate adjustment in the class, number
and price of the Warrant Shares issued on exercise of the Warrants upon
the occurrence of certain events, including any subdivision,
consolidation or reclassification of the Issuer's common shares, the
payment of stock dividends and the amalgamation of the Issuer.
3.3 The issue of the Warrants will not restrict or prevent the Issuer from
obtaining any other financing, or from issuing additional securities or
rights, during the period within which the Warrants may be exercised.
4. REPRESENTATIONS AND WARRANTIES OF THE SUBSCRIBER
4.1 The Subscriber acknowledges, represents, warrants and covenants to and
with the Issuer that, as at the date given above and at the Closing:
(a) no prospectus has been filed by the Issuer with any of the
Commissions in connection with the issuance of the Securities,
such issuance is exempted from the prospectus requirements of
the Acts and that:
(i) the Subscriber is restricted from using most of the
civil remedies available under the Acts;
(ii) the Subscriber may not receive information that would
otherwise be required to be provided to him under the
Acts; and
(iii) the Issuer is relieved from certain obligations that
would otherwise apply under the Acts;
(b) the Subscriber certifies that it is resident in British
Columbia, Alberta or Ontario or resident outside of Canada and
the United States;
(c) the Subscriber:
(i) is purchasing the Purchased Securities as principal
for its own account and not for the benefit of any
other person or is deemed under the Acts to be
purchasing the Purchased Securities as principal, and
in either case is purchasing the Purchased Securities
for investment only and not with a view to the resale
or distribution of all or any of the Purchased
Securities; or
(ii) is purchasing as agent for a disclosed principal and
is not deemed under the Acts to be purchasing the
Purchased Securities as principal, and it is duly
authorized to enter into this Agreement and to
execute and deliver all documentation in connection
with the purchase on behalf of such disclosed
principal, who is purchasing as principal for its own
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account and not for the benefit of any other person
and for investment only and not with a view to the
resale or distribution of all or any of the Purchased
Securities;
(d) the Subscriber has received a copy of the Offering Memorandum
and has duly completed, signed and delivered to the Issuer two
Form 45-103.F3 Risk Acknowledgements in the form attached as
Appendix II hereto;
(e) the Subscriber, if not a resident of British Columbia,
certifies that it is not resident in British Columbia and
acknowledges that:
(i) no securities commission or similar regulatory
authority has reviewed or passed on the merits of the
Securities;
(ii) there is no government or other insurance covering
the Securities;
(iii) there are risks associated with the purchase of the
Securities;
(iv) there are restrictions on the Subscriber's ability to
resell the Securities and it is the responsibility of
the Subscriber to find out what those restrictions
are and to comply with them before selling the
Securities; and
(v) the Issuer has advised the Subscriber that the Issuer
is relying on an exemption from the requirements to
provide the Subscriber with a prospectus and to sell
the Securities through a person registered to sell
securities under the Acts and, as a consequence of
acquiring the Securities pursuant to this exemption,
certain protections, rights and remedies provided by
the Act, including statutory rights of rescission or
damages, will not be available to the Subscriber;
(f) if the Subscriber is a resident of Alberta, the Subscriber is
either:
(i) an Eligible Investor under Multilateral Instrument
45-103 and the Subscriber has completed an Eligible
Investor Status Certificate in the form set out in
Appendix IV and an Accredited Investor Certificate in
the form set out in Appendix V (if applicable); or
(ii) purchasing Purchased Securities having an aggregate
acquisition cost which does not exceed $10,000;
(g) if the Subscriber is a resident of Ontario or is otherwise
subject to the Ontario Act, the Subscriber is an "accredited
investor" as defined in Rule 45-501, by virtue of the fact
that the Subscriber falls within one or more of the
sub-paragraphs of the definition of "accredited investor" set
out in Appendix III hereto (the Subscriber having initialled
the applicable sub-paragraph(s);
(h) if the Subscriber is resident outside of Canada and the United
States, the Subscriber:
(i) is knowledgeable of, or has been independently
advised as to the applicable securities laws of the
securities regulatory authorities (the "Authorities")
having application in the jurisdiction in which the
Subscriber is resident (the "International
Jurisdiction") which would apply to the acquisition
of the Securities, if any;
(ii) is purchasing the Purchased Securities pursuant to
exemptions from the prospectus and registration
requirements under the applicable securities laws of
the Authorities in the International Jurisdiction or,
if such is not applicable, the Subscriber is
permitted to purchase the Purchased Securities under
the applicable securities laws of the Authorities in
the International Jurisdiction without the need to
rely on any exemption; and
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(iii) the applicable securities laws of the Authorities in
the International Jurisdiction do not require the
Issuer to make any filings or seek any approvals of
any nature whatsoever from any Authority of any kind
whatsoever in the International Jurisdiction in
connection with the issue and sale or resale of the
Purchased Securities;
(i) to the best of the Subscriber's knowledge, the Units were not
advertised;
(j) no person has made to the Subscriber any written or oral
representations:
(i) that any person will resell or repurchase any of the
Securities;
(ii) that any person will refund the purchase price of any
of the Securities;
(iii) as to the future price or value of any of the
Securities; or
(iv) that any of the Securities will be listed and posted
for trading on a stock exchange or that application
has been made to list and post the any of the
Securities for trading on a stock exchange, other
than the listing of the FT Shares and the Warrant
Shares on the Exchange;
(k) the Subscriber is not a "control person" of the Issuer as
defined in the Acts, will not become a "control person" by
virtue of the purchase of the Purchased Securities, and does
not intend to act in concert with any other person to form a
control group of the Issuer;
(l) this subscription has not been solicited in any other manner
contrary to the Acts or the 1933 Act;
(m) the Subscriber acknowledges that the Securities have not been
registered under the 1933 Act or the securities laws of any
state of the United States, and such securities must be held
indefinitely and may not be offered or sold unless registered
under the 1933 Act and the securities laws of all applicable
states of the United States or an exemption from such
registration requirements is available, and that the Issuer
has no obligation or present intention of filing a
registration statement under the 1933 Act in respect of the
any of the Securities;
(n) the Purchased Securities are not being acquired directly or
indirectly, for the account or benefit of a U.S. Person or a
person in the United States and the Subscriber does not have
any agreement or understanding (either written or oral) with
any U.S. Person of a person in the United States respecting:
(i) the transfer or assignment of any rights or interest
in any of the Securities;
(ii) the division of profits, losses, fees, commissions,
or any financial stake in connection with this
subscription; or
(iii) the voting of the FT Shares or the Warrant Shares;
(o) the current structure of this transaction and all transactions
and activities contemplated hereunder is not a scheme to avoid
the registration requirements of the 1993 Act;
(p) it has no intention to distribute either directly or
indirectly any of the Securities in the United States or to
U.S. Persons;
(q) the Subscriber acknowledges and agrees that the offer to
purchase the Purchased Securities was not made to the
Subscriber when the Subscriber was in the United States and
that:
(i) the Subscriber is not a U.S. Person;
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(ii) the Subscriber is not and will not be purchasing the
Purchased Securities for the account or benefit of
any U.S. Person;
(iii) the Subscriber will not engage in any Directed
Selling Efforts in respect of the Securities;
(iv) the Subscriber agrees not to engage in hedging
transactions with regard to the Securities except in
compliance with the 1933 Act; and
(v) the Issuer shall refuse to register any transfer of
the Securities not made in accordance with the
provisions of Regulation S, pursuant to registration
under the 1933 Act, or pursuant to an available
exemption from registration under the 1933 Act;
(r) the Subscriber has no knowledge of a "material fact" or
"material change" (as those terms are defined in the Acts) in
the affairs of the Issuer that has not been generally
disclosed to the public, save knowledge of this particular
transaction;
(s) the Subscriber's decision to tender this offer and purchase
the Purchased Securities has not been made as a result of any
verbal or written representation as to fact or otherwise made
by or on behalf of the Issuer, or any other person and is
based entirely upon currently available public information
concerning the Issuer and the information contained in this
Agreement and the Offering Memorandum;
(t) the offer made by this subscription is irrevocable and
requires acceptance by the Issuer and approval of the
Exchange;
(u) the Issuer will have the right to accept this subscription
offer in whole or in part and the acceptance of this
subscription offer will be conditional upon the sale of the
Purchased Securities to the Subscriber being exempt from the
prospectus requirements of the relevant securities
legislation;
(v) the Subscriber has the legal capacity and competence to enter
into and execute this Agreement and to take all actions
required pursuant hereto and, if an individual is of full age
of majority, and if the Subscriber is a corporation it is duly
incorporated and validly subsisting under the laws of its
jurisdiction of incorporation, and all necessary approvals by
its directors, shareholders and others have been given to
authorize the execution of this Agreement on behalf of the
Subscriber;
(w) the entering into of this Agreement and the transactions
contemplated hereby will not result in the violation of any of
the terms and provisions of any law applicable to, or the
constating documents of, the Subscriber or of any agreement,
written or oral, to which the Subscriber may be a part or by
which he is or may be bound;
(x) this Agreement has been duly executed and delivered by the
Subscriber and constitutes a legal, valid and binding
obligation of the Subscriber enforceable against the
Subscriber;
(y) the Subscriber has been independently advised as to the
applicable hold periods imposed in respect of the Securities
by applicable securities legislation and regulatory policies
and confirms that no representations by the Issuer have been
made respecting the hold periods applicable to the Securities
and is aware of the risks and other characteristics of the
Securities and of the fact that the Subscriber may not be able
to resell the Securities purchased by it except in accordance
with the applicable securities legislation and regulatory
policies and that the Securities may be subject to resale
restrictions and may bear a legend to this effect;
(z) the Subscriber, and any beneficial purchaser for whom the
Subscriber is acting, is resident in the province or
jurisdiction set out on the cover page of this Agreement;
(aa) if required by applicable securities legislation, policy or
order or by any securities commission, stock exchange or other
regulatory authority, the Subscriber will execute, deliver,
file and
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otherwise assist the Issuer in filing such reports,
undertakings and other documents with respect to the issue of
the Securities as may be required;
(bb) the Subscriber has not purchased the Purchased Securities as a
result of any form of general solicitation or general
advertising, including advertisements, articles, notices or
other communication published in any newspaper, magazine or
similar media or broadcast over radio, television or internet
or any seminar or meeting whose attendees have been invited by
general solicitation or general advertising;
(cc) the Subscriber has been advised to consult its own legal
advisors with respect to resale restrictions applicable to the
Securities and the Subscriber is solely responsible (and the
Issuer is not responsible) for compliance with applicable
resale restrictions;
(dd) this Subscription Agreement has been duly and validly
authorized, executed and delivered by and constitutes a legal,
valid, binding and enforceable obligation of the Subscriber;
(ee) the Subscriber, or, where it is not purchasing as principal,
each beneficial purchaser, has such knowledge in financial and
business affairs as to be capable of evaluating the merits and
risks of its investment and is able to bear the economic risk
of loss of its investment;
(ff) the Subscriber, if a corporation, has previously filed with
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 of this
Agreement, or will deliver a completed Form 4C, Corporate
Placee Registration Form in the form attached hereto as
Appendix I to the Issuer for filing with the Exchange in
accordance with Section 6.2 hereof; and
(gg) the Subscriber agrees that the above representations,
warranties and covenants in this subsection will be true and
correct both as of the execution of this subscription and as
of the day of Closing.
4.2 The foregoing representations, warranties and covenants will survive
the Closing and are made by the Subscriber with the intent that they be
relied upon by the Issuer in determining its suitability as a purchaser
of Units, and the Subscriber hereby agrees to indemnify the Issuer
against all losses, claims, costs, expenses and damages or liabilities
which any of them may suffer or incur as a result of reliance thereon.
The Subscriber undertakes to notify the Issuer immediately of any
change in any representation, warranty or other information relating to
the Subscriber set forth herein which takes place prior to the Closing.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE ISSUER
5.1 The Issuer represents, warrants and covenants that, as of the date
given above and at the Closing:
(a) the Issuer is a valid and subsisting corporation in good
standing under the laws of the Province of British Columbia;
(b) the Issuer is duly registered and licensed to carry on
business in the jurisdictions in which it carries on business
or owns property where required under the laws of that
jurisdiction;
(c) the authorized and issued capital of the Issuer are as
disclosed in the Offering Memorandum and the outstanding
shares of the Issuer are fully paid and non-assessable;
(d) the Issuer will reserve or set aside sufficient shares in its
treasury to issue the FT Shares and the Warrant Shares, and
upon their issuance, the FT Shares and the Warrant Shares will
be duly and validly issued as fully paid and non-assessable;
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(e) except as qualified by the disclosure in the Offering
Memorandum, the Issuer is the beneficial owner of the
properties, business and assets or the interests in the
properties, business or assets referred to in the Offering
Memorandum, all agreements by which the Issuer holds an
interest in a property, business or assets are in good
standing according to their terms and the properties are in
good standing under the applicable laws of the jurisdictions
in which they are situated;
(f) the financial statements of the Issuer incorporated by
reference in the Offering Memorandum and filed with any of the
Commissions have all been prepared in accordance with Canadian
generally accepted accounting principles, accurately reflect
the financial position and all material liabilities (accrued,
absolute, contingent or otherwise) of the Issuer as of the
date thereof, and no adverse material changes in the financial
position of the Issuer have taken place since the date
thereof; and
(g) the Offering Memorandum does not contain a "misrepresentation"
(as defined in the Acts)
5.2 The representations and warranties contained in this section will
survive the Closing for a period of one year.
6. CLOSING
6.1 The Closing will take place after the date of the conditional letter of
acceptance of the Exchange for the Private Placement on such date as is
determined by the Issuer, but in any event no later than 90 days
following the date of this Agreement.
6.2 Upon execution of this Agreement, the Subscriber will deliver to the
Issuer:
(a) this subscription form, duly executed;
(b) a certified cheque or bank draft for the total price of the
Purchased Securities made payable to the Issuer;
(c) if the Subscriber is not an individual, a fully executed
corporate placee registration form in the form set out in
Appendix I;
(d) TWO duly completed and fully executed Form 45-103.F3 Risk
Acknowledgements in the form set out in Appendix II;
(e) a duly competed and fully executed Accredited Investor
Questionnaire in the form set out in Appendix III if the
Subscriber is resident in Ontario or subject to the Ontario
Act;
(f) a duly completed and fully executed Eligible Investor Status
Certificate in the form set out in Appendix IV if the
Subscriber is resident in Alberta or subject to the Alberta
Act and is purchasing Purchased Securities having an aggregate
acquisition cost which exceeds $10,000; and
(g) a duly completed and fully executed Accredited Investor
Questionnaire in the form set out in Appendix V if the
Subscriber is resident in Alberta or is subject to the Alberta
Act and is an "accredited investor" as defined in Multilateral
Instrument 45-103.
6.3 As soon as practicable following the Closing Date, the Issuer will
deliver the Subscriber the certificates representing the FT Shares and
the Warrants comprising the Subscriber's Units registered in the name
of the Subscriber or its nominee.
7. RESALE RESTRICTIONS
The Subscriber understands and acknowledges that the FT Shares and Warrants
comprising the Units and the Warrant Shares issuable on exercise of the Warrants
will be subject to certain resale restrictions under the Acts, the
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1933 Act, the laws of the jurisdiction in which the Subscriber resides and the
Exchange's policies, the terms of which may be endorsed on the certificates
representing such Securities, and the Subscriber agrees to comply with such
resale restrictions. The Warrants are non-transferrable. The Subscriber also
acknowledges that it has been advised to consult its own independent legal
advisor with respect to the applicable resale restrictions and the Subscriber is
solely responsible for complying with such restrictions and the Issuer is not in
any manner responsible for ensuring compliance by the Subscriber with the
applicable resale restrictions.
8. RIGHTS OF ACTION
8.1 Upon acceptance of this Agreement by this Issuer, the Issuer grants to
the Subscriber the rights of action described in the Offering
Memorandum under the heading "Purchasers' Rights".
9. TAX PROVISIONS RELATING TO FT SHARES
8.2 USE OF FLOW-THROUGH SUBSCRIPTION FUNDS. The Subscriber acknowledges and
the Issuer covenants that:
(a) the Flow-Through Subscription Funds will be deposited into the
Exploration Fund on the date of Closing;
(b) the Exploration Fund will be deposited into an
interest-bearing account with a Canadian chartered bank
separate from the Issuer's other funds, until all the
Exploration Fund has been expended, and any interest accruing
in this account will be solely for the benefit of the Issuer
and will be added to the working capital of the Issuer;
(c) the Issuer will, pursuant to the terms of this Agreement, use
the entire Exploration Fund to incur expenditures which will
qualify as CEE, within 24 months from the end of the month in
which this Agreement is accepted by the Issuer; and
(d) the Issuer will renounce CEE to the Subscriber as soon as
reasonably practicable but in any event before March of the
first calendar year beginning after the expiration of the 24
month period referred to in paragraph 9.1(c).
9.1 ADDITIONAL SUBSCRIBERS PARTICIPATING IN EXPLORATION PROGRAM. The
Subscriber acknowledges that the Issuer will be entering into
agreements similar to this Agreement with other persons. Such
agreements will be dated on or about the same date as this Agreement.
The funds paid to the Issuer pursuant to the terms of such agreements
will also be deposited in the Exploration Fund. Should the Issuer
intend, however, to issue additional "flow-through" securities pursuant
to a private placement or pursuant to a public offering different from
the Offering, any subscription funds received from such private
placement or public offering will be deposited into a bank account
separate from the Exploration Fund and will not be commingled with the
funds comprising the Exploration Fund, it being the intention of the
parties that a separate exploration account be established for each
such private placement or public offering. The Issuer will expend such
exploration accounts in chronological order with reference to:
(a) the reference date of the flow-through security funding and
the renunciation agreements entered into for such private
placement; and
(b) the date of closing such public offering,
such that the subscription funds from the oldest "flow-through" financing will
always be spent first and renunciation made in respect of such expenditures
before any renunciations are made in respect of any exploration expenditures
that are financed from subsequent "flow-through" financings.
9.2 INCOME TAX REPRESENTATIONS AND WARRANTIES OF THE SUBSCRIBER. To the
extent that the Subscriber is seeking from the Issuer the renunciation
of CEE, the Subscriber represents and warrants to the Issuer that:
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(a) the Subscriber is a resident of Canada for purposes of the ITA
at all times and has legal capacity and competence to enter
into this Agreement;
(b) the Subscriber is acquiring the FT Shares on its own account
and not on behalf of any other person;
(c) the Subscriber is not a "principal-business corporation"
within the meaning of subsection 66(15) of the ITA, a trader
or dealer in resource properties referred to in subsection
66(5) of the ITA, or a partnership or trust; and
(d) the Subscriber deals at arm's length, for purposes of the ITA,
with the Issuer at all times.
9.3 INCOME TAX REPRESENTATIONS AND WARRANTIES OF THE ISSUER. The Issuer
represents and warrants to the Subscriber that:
(a) it is a "principal-business corporation" within the meaning
prescribed by subsection 66(15) of the ITA; and
(b) the FT Shares, when issued, will not constitute "prescribed
shares" as defined in section 6202.1 of the
regulations to the ITA.
9.4 APPLICATION OF EXPLORATION FUND. Subject to the Issuer's right to
revise the Exploration Program as provided for in section 9.6 below,
the Issuer will apply all funds deposited in the Exploration Fund
exclusively for the purpose of performing the Exploration Program and
the Issuer will only apply such funds to incur Exploration Expenditures
which qualify as CEE.
9.5 REVISION OF EXPLORATION FUND. While it is the present intention of the
Issuer to undertake the Exploration Program, it is the nature of mining
exploration that data and information acquired during the conduct of an
exploration program may alter the initially proposed program of
exploration and the Issuer expressly reserves the right to alter the
Exploration Program on the advice of its technical staff or consultants
and further reserves the right to substitute other exploration programs
on which to expend all or part of the Flow-Through Subscription Funds,
provided that any expenditures in respect of such substituted or
altered programs qualify as CEE.
9.6 EXPLORATION BENEFITS. Subscribers will not acquire any rights in the
properties of the Issuer, including property acquired with the
Exploration Fund.
9.7 FILING OF AGREEMENT. The Issuer will file with Canada Customs and
Revenue Agency, together with a copy of this Agreement, the prescribed
form referred to in subsection 66(12.68) of the ITA on or before the
last day of the month following the earlier of:
(a) the month in which this Agreement is entered into; and
(b) the month in which any "selling instrument" as that term is
defined in subsection 66(15) of the ITA, relating to this
Agreement is first delivered to the Subscriber or other
potential investors of the Issuer.
9.8 ISSUER TO RENOUNCE CEE. The Issuer covenants and agrees that it shall:
(a) in the form prescribed for purposes of the ITA and within the
time limited thereby, renounce to Subscribers on or with
effect on December 31 (the "effective date") in each calendar
year during the period commencing on the day this Agreement is
entered into and ending 24 months after the end of the month
that includes that day, the greatest amount in respect of CEE
that the Issuer has incurred with the Exploration Fund (and
has not been previously renounced) to the effective date of
such renunciation and within sixty (60) days thereafter;
-14-
(b) have no right to claim any deduction for purposes of the ITA
in respect of any amounts so renounced; and
(c) renounce to the Subscriber an amount equal to but not
exceeding the Flow-Through Subscription Funds.
9.9 ISSUER MAY RECEIVE ASSISTANCE IN RESPECT OF THE EXPLORATION
EXPENDITURES. The Issuer acknowledges that it may receive assistance,
as defined in paragraph 66(15) of the ITA, in respect of the
Exploration Expenditures or the Exploration Program and that such
assistance will accrue solely to the benefit of the Issuer and the
Subscriber will have no interest therein. Nevertheless, in the event
that net CEE incurred by the Issuer, pursuant to the terms of this
Agreement, is less than the Flow-Through Subscription Funds, then the
Issuer will spend the assistance funds on eligible CEE and renounce
such additional CEE to the Subscriber in order to make up the
shortfall.
9.10 ALLOCATION OF EXPLORATION EXPENDITURES. For the purposes of determining
the extent to which the Flow-Through Subscription Funds have been the
subject of renunciation, the total amount expended from the Exploration
Fund on Exploration Expenditures will be allocated among all
subscribers who have contributed to the Exploration Fund on a basis
pro-rata to the relative amounts of their respective Flow-Through
Subscription Funds.
9.11 ISSUER TO ACCOUNT TO SUBSCRIBER. The Issuer will maintain proper
accounting books and records relating to the Exploration Expenditures.
On the completion of the Exploration Program, the Issuer will account
to the Subscriber in respect of the application of the Exploration
Fund.
9.12 NO DISSEMINATION OF CONFIDENTIAL INFORMATION. The Issuer will be
entitled to hold confidential all exploration information relating to
any program on which any portion of the Exploration Fund is expended
pursuant to this Agreement and will not be obligated to make such
information available to any Subscriber except in the manner and at
such time as it makes any such information available to its
shareholders or to the public pursuant to the rules and policies of any
stock exchange or laws, regulations or policies of any province.
9.13 FORCE MAJEURE. Notwithstanding paragraph 9.1(c), if the Issuer is
prevented or delayed from performing any of its obligations hereunder
or from incurring CEE on behalf of the Subscriber or in carrying out
any programs contemplated hereby by reason by any act of God, strike,
labour dispute, lockout, threat of imminent strike, fire, flood,
interruption or delay in transportation, war, insurrection or mob
violence requirements or regulation of government or statute,
unavoidable casualties, shortage of labour, equipment or materials,
plant breakdown or failure of operating equipment or any disabling
cause without regard to the foregoing enumeration beyond its control or
which cannot be overcome by the means normally employed in performance,
then and in every such event, any such prevention or delay shall not
constitute a breach of this Agreement but, subject to the requirements
of the Act concerning the renunciation of CEE to the Subscriber in
respect of "Flow-Through Shares", performance of any of the said
obligations or requirements to incur CEE on behalf of the Subscriber or
to perform any such program shall be suspended during such period of
disability and the period of all such delays resulting from any such
causes shall be excluded in computing the time within which anything
required to be permitted by the Issuer is to be done hereunder, it
being understood that the time within which anything is to be done, or
made pursuant hereto, shall be extended by the total period of all such
delays.
10. MISCELLANEOUS
10.1 The Subscriber hereby authorizes the Issuer to correct any errors in,
or complete any minor information missing from this Agreement, the
corporate placee registration form (Appendix I), the Form 45-903.F3
Risk Acknowledgement (Appendix II), the Ontario Accredited Investor
Questionnaire (Appendix III), the Eligible Investor Status Certificate
(Appendix IV) and the Alberta Accredited Investor Questionnaire
(Appendix V) which have been executed by the Subscriber, as applicable,
and delivered to the Issuer. The Subscriber consents to the filing of
such documents and any other documents as may be required to be filed
with any stock exchange or securities regulatory authority in
connection with the Private Placement.
-15-
10.2 Without limitation, this subscription and the transactions contemplated
hereby are conditional upon and subject to the Issuer receiving the
Exchange's approval of this subscription and the transactions
contemplated hereby.
10.3 This Agreement, which includes any interest granted or right arising
under this Agreement, may not be assigned or transferred.
10.4 Except as expressly provided in this Agreement and in the agreements,
instruments and other documents contemplated or provided for herein,
this Agreement contains the entire agreement between the Parties with
respect to the Securities and there are no other terms, conditions,
representations or warranties whether expressed, implied, oral or
written, by statute, by common law, by the Issuer, or by anyone else.
10.5 The Parties may amend this Agreement only in writing.
10.6 This Agreement enures to the benefit of and is binding upon the Parties
and, as the case may be, their respective heirs, executors,
administrators and, successors.
10.7 A Party will give all notices or other written communications to the
other Party concerning this Agreement by hand or by registered mail
addressed to such other Party's respective address which is noted on
the cover page of this Agreement.
10.8 This Agreement may be executed in counterparts, each of which when
delivered will be deemed to be an original and all of which together
will constitute one and the same document and the Issuer will be
entitled to rely on delivery by facsimile machine of an executed copy
of this subscription, and acceptance by the Issuer of such facsimile
copy will be equally effective to create a valid and binding agreement
between the Subscriber and the Issuer as if the Issuer had accepted the
subscription originally executed by the Subscriber.
APPENDIX I
TSX VENTURE EXCHANGE
FORM 4C
CORPORATE PLACEE REGISTRATION FORM
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 a 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
_________________________ [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
-2-
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)
_____________________________________________________
Please print name of individual whose signature
appears above)
THIS IS NOT A PUBLIC DOCUMENT
APPENDIX II
FORM 45-903.F3
RISK ACKNOWLEDGEMENT
--------------------------------------------------------------------------------
WARNING
I acknowledge that this is a risky investment:
o I am investing entirely at my own risk.
o No securities commission has evaluated or endorsed the merits
of these securities or the disclosure in the offering
memorandum.
o I will not be able to sell these securities for 4 months. o I
could lose all the money I invest.
I am investing $____________ [total consideration] in total; this includes any
amount I am obliged to pay in future.
I ACKNOWLEDGE THAT THIS IS A RISKY INVESTMENT AND THAT I COULD LOSE ALL THE
MONEY I INVEST.
----------------------------------- -----------------------------
Date Signature of Purchaser
-----------------------------
Print name of Purchaser
Sign 2 copies of this document. Keep one copy for your records.
--------------------------------------------------------------------------------
YOU HAVE 2 BUSINESS DAYS TO CANCEL YOUR PURCHASE
To do so, send a notice to Xxxxxx Gold Corp. stating that you want to cancel
your purchase. You must send the notice before midnight on the 2nd business day
after you sign the agreement to purchase the securities. You can send the notice
by fax or email or deliver it in person to Xxxxxx Gold Corp. at its business
address. Keep a copy of the notice for your records.
Issuer Name and Address:
Xxxxxx Gold Corp.
00000 00xx Xxxxxx
Xxxxxx, X.X. X0X 0X0
Phone: 000-000-0000
Fax: 000-000-0000
E-mail: XXXX@XXXXXXXXXXXXXX.XXX
YOU ARE BUYING EXEMPT MARKET SECURITIES
They are called EXEMPT MARKET SECURITIES because two parts of securities law do
not apply to them. If an issuer wants to sell EXEMPT MARKET SECURITIES to you:
-2-
o the issuer does not have to give you a prospectus (a document that
describes the investment in detail and gives you some legal
protections), and
o the securities do not have to be sold by an investment dealer
registered with a securities commission.
There are restrictions on your ability to resell EXEMPT MARKET SECURITIES.
EXEMPT MARKET SECURITIES are more risky than other securities.
YOU WILL RECEIVE AN OFFERING MEMORANDUM
Read the offering memorandum carefully because it has important information
about the issuer and its securities. Keep the offering memorandum because you
have rights based on it. Talk to a lawyer for details about these rights.
For more information on the EXEMPT MARKET, call your local securities
commission.
British Columbia Securities Commission Alberta Securities Commission
Pacific Centre 0xx Xxxxx, 000 - 0xx Xxxxxx X.X.
000 Xxxx Xxxxxxx Xxxxxx Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
Xxxxxxxxx, X.X. X0X 0X0 Telephone: 000-000-0000
Deliveries: 0xx Xxxxx Facsimile: 000-000-0000
Reception: 12th Floor Information: 000-000-0000
Main Phone: 000-000-0000 Event's Line: 000-000-0000
Main Fax: 000-000-0000 E-mail: xxxxxxxxx@xxxxxx.xx.xx
E-mail: xxxxxxxxx@xxxx.xx.xx
Ontario Securities Commission
Inquiries & Contact Centre
00 Xxxxx Xxxxxx Xxxx, Xxxxx 0000
Xxxxxxx XX X0X 0X0
Call the Contact Centre at: 000-000-0000
Toll Free at: 1-877-785-1555
E-mail: xxxxxxxxx@xxx.xxx.xx.xx
[INSTRUCTION: THE PURCHASER MUST SIGN 2 COPIES OF THIS FORM. THE PURCHASER AND
THE ISSUER MUST EACH RECEIVE A SIGNED COPY.]
APPENDIX III
ONTARIO ACCREDITED INVESTOR QUESTIONNAIRE
The Subscriber is resident in the Province of Ontario and is an "Accredited
Investor" as defined under the Ontario Securities Commission Rule 00-000, XXXXXX
DISTRIBUTIONS, by virtue of the fact that the Subscriber is one of the following
and has so indicated by INITIALING THE APPLICABLE PARAGRAPH:
[_] (a) a bank listed in Schedule I or II of the Bank Act (Canada), or
an authorized foreign bank listed in Schedule III of that Act;
[_] (b) the Business Development Bank incorporated under the Business
Development Bank Act (Canada);
[_] (c) a loan corporation or trust corporation registered under the
Loan and Trust Corporations Act or under the Trust and Loan
Companies Act (Canada), or under comparable legislation in any
other jurisdiction;
[_] (d) a co-operative credit society, credit union central,
federation of caisses populaires, credit union or league, or
regional caisse populaire, or an association under the
Cooperative Credit Associations Act (Canada), in each case,
located in Canada;
[_] (e) a Corporation licensed to do business as an insurance
Corporation in any jurisdiction;
[_] (f) a subsidiary of any Corporation referred to in paragraph (a),
(b), (c), (d) or (e), where the Corporation owns all of the
voting shares of the subsidiary;
[_] (g) a person or Corporation registered under the Act or securities
legislation in another jurisdiction as an adviser or dealer,
other than a limited market dealer;
[_] (h) the government of Canada or of any jurisdiction, or any crown
corporation, instrumentality or agency of a Canadian federal,
provincial or territorial government;
[_] (i) any Canadian municipality or any Canadian provincial or
territorial capital city;
[_] (j) any national, federal, state, provincial, territorial or
municipal government of or in any foreign jurisdiction, or any
instrumentality or agency thereof;
[_] (k) 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;
[_] (l) a registered charity under the Income Tax Act (Canada);
[_] (m) an individual who beneficially owns, or who together with a
spouse beneficially own, financial assets having an aggregate
realizable value that, before taxes but net of any related
liabilities, exceeds $1,000,000;
[_] (n) 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 those years and who, in either case, has a
reasonable expectation of exceeding the same net income level
in the current year;
-2-
[_] (o) an individual who has been granted registration under the Act
or securities legislation in another jurisdiction as a
representative of a person or Corporation referred to in
paragraph (g), whether or not the individual's registration is
still in effect;
[_] (p) a promoter of the issuer or an affiliated entity of a promoter
of the issuer;
[_] (q) a spouse, parent, grandparent or child of an officer, director
or promoter of the issuer;
[_] (r) a person or Corporation that, in relation to the issuer, is an
affiliated entity or a person or Corporation referred to in
clause (c) of the definition of distribution in subsection
1(1) of the Act;
[_] (s) an issuer that is acquiring securities of its own issue;
[_] (t) a Corporation, limited partnership, limited liability
partnership, trust or estate, other than a mutual fund or
non-redeemable investment fund, that had net assets of at
least $5,000,000 as reflected in its most recently prepared
financial statements;
[_] (u) a person or Corporation that is recognized by the Commission
as an accredited investor; (v) a mutual fund or non-redeemable
investment fund that, in Ontario, distributes its securities
only to persons or companies that are accredited investors;
[_] (w) a mutual fund or non-redeemable investment fund that, in
Ontario, distributes its securities under a prospectus for
which a receipt has been granted by the Director;
[_] (x) a managed account if it is acquiring a security that is not a
security of a mutual fund or non-redeemable investment fund;
[_] (y) an account that is fully managed by a trust corporation
registered under the Loan and Trust Corporations Act;
[_] (z) an entity organized outside of Canada that is analogous to any
of the entities referred to in paragraphs (a) through (g) and
paragraph (k) in form and function; or
[_] (aa) a person or Corporation in respect of which all of the owners
of interests, direct or indirect, legal or beneficial, are
persons or companies that are accredited investors.
As used in this questionnaire, the following terms have the following meanings:
(a) "Corporation" means any corporation, incorporated association,
incorporated syndicate or other incorporated organization;
(b) "director" means the Executive Director of the Commission, a Director
or Deputy Director of the Commission, or a person employed by the
Commission in a position designated by the Executive Director for the
purposes of this definition;
(c) "entity" means a company, syndicate, partnership, trust or
unincorporated organization.
(d) "financial assets" means cash, securities, or any contract of insurance
or deposit or evidence thereof that is not a security for the purpose
of the Act;
-3-
(e) "managed account" means an investment portfolio account of a client
established in writing with a portfolio adviser who makes investment
decisions for the account and has full discretion to trade in
securities of the account without requiring the client's express
consent to a transaction;
(f) "mutual fund" includes an issuer of securities that entitle the holder
to receive on demand, or within a specified period after demand, an
amount computed by reference to the value of a proportionate interest
in the whole or in a part of the net assets, including a separate fund
or trust account, of the issuer of the securities;
(g) "non-redeemable investment fund" means an issuer
(i) whose primary purpose is to invest money provided by its
security holders;
(ii) that does not invest for the purpose of exercising effective
control, seeking to exercise effective control, or being
actively involved in the management of the issuers in which it
invests, other than other mutual funds or non-redeemable
investment funds; and
(iii) that is not a mutual fund;
(h) "person" means an individual, partnership, unincorporated association,
unincorporated syndicate, unincorporated organization, trust, trustee,
executor, administrator, or other legal representative;
(i) "portfolio adviser" means (i) a portfolio manager registered under the
Act; or (ii) a broker or investment dealer exempted from registration
as an adviser under subsection 148(1) of the Regulation to the Act if
that broker or investment dealer is not exempt from the by-laws or
regulations of the TSX or the Investment Dealers' Association of Canada
referred to in that subsection;
(j) "related liabilities" means liabilities incurred or assumed for the
purpose of financing the acquisition or ownership of financial assets
and liabilities that are secured by financial assets;
(k) "spouse", in relation to an individual, means another individual to
whom that individual is married, or another individual of the opposite
sex or the same sex with whom that individual is living in a conjugal
relationship outside marriage;
In OSC Rule 45-501 a person or Corporation is considered to be "controlled" by a
person or Corporation if:
(i) in the case of a person or Corporation:
(A) voting securities of the first-mentioned person or
Corporation carrying more than 50 percent of the
votes for the election of directors are held,
otherwise than by way of security only, by or for the
benefit of the other person or Corporation, and
(B) the votes carried by the securities are entitled, if
exercised, to elect a majority of the directors of
the first-mentioned person or Corporation;
(ii) in the case of a partnership that does not have directors,
other than a limited partnership, the second-mentioned person
or Corporation holds more than 50 percent of the interests in
the partnership; or
(iii) in the case of a limited partnership, the general partner is
the second-mentioned person or Corporation.
In OSC Rule 45-501 a person or Corporation is considered to be an "affiliated
entity" of another person or Corporation if one is a subsidiary entity of the
other, or if both are subsidiary entities of the same person or Corporation, or
if each of them is controlled by the same person or Corporation.
-4-
In OSC Rule 45-501 a person or Corporation is considered to be a "subsidiary
entity" of another person or Corporation if:
(i) it is controlled by:
(A) that other, or
(B) that other and one or more persons or Corporations
each of which is controlled by that other, or
(C) two or more persons or Corporations, each of which is
controlled by that other, or
(ii) it is subsidiary entity of a person or Corporation that is the
other's subsidiary entity.
The foregoing representation, warranty and certificate is true an accurate as of
the date of this certificate and will be true and accurate as of Closing. If any
such representation, warranty or certificate shall not be true and accurate
prior to Closing, the undersigned shall give immediate written notice of such
fact to the Issuer.
IN WITNESS WHEREOF, the undersigned has executed this Questionnaire as of the
____ day of _____________, 2003.
If a Corporation, Partnership or Other If an Individual:
Entity:
_____________________________________ __________________________________
Name of Entity Signature
_____________________________________ __________________________________
Type of Entity Print or Type Name
_____________________________________
Signature of Person Signing
_____________________________________
Print or Type Name and Title of
Person Signing
APPENDIX IV
ELIGIBLE INVESTOR STATUS CERTIFICATE
(ALBERTA RESIDENTS ONLY)
The undersigned Subscriber for units of Consolidated Venturex Holdings Ltd., a
resident of the Province of Alberta, hereby represents and warrants, as an
integral part of the attached subscription agreement, that he, she or it is
correctly and in all respect described by the category or categories set forth
directly next to which the Subscriber has marked below.
[XXXX BELOW THE CATEGORY OR CATEGORIES WHICH DESCRIBES YOU]
1. A person or company (an "eligible investor") whose:
(a) [_] net assets, alone or with a spouse, exceed $400,000,
(b) [_] net income before taxes exceeded $75,000 in each of
the two most recent years and who reasonably expects
to exceed that income level in the current year, or
(c) [_] net assets, alone or with a spouse, exceed
$400,000,net income before taxes combined with that
of a spouse exceeded $125,000 in each of the two most
recent years and who reasonably expects to exceed
that income level in the current year.
2. [_] A person or company of which a majority of the voting
securities are beneficially owned by eligible
investors or a majority of the directors are eligible
investors.
3. [_] A general partnership in which all of the partners
are eligible investors.
4. [_] A limited partnership in which the majority of the
general partners are eligible investors.
5. [_] A trust or estate in which all of the beneficiaries
or a majority of the trustees are eligible investors.
6. [_] An accredited investor (as that term is defined in
Multilateral Instrument 45-103) (Please complete
Appendix V).
7. [_] A person or company that has obtained advice
regarding the suitability of the investment and if
the person or company is in a jurisdiction of Canada
that advice has been obtained from an investment
dealer, securities dealer or their equivalent,
registered under the securities legislation of the
jurisdiction.
DATED______________________, 2003
___________________________________
Signature of Subscriber
___________________________________
Name of Subscriber
___________________________________
___________________________________
Address of Subscriber
APPENDIX V
ACCREDITED INVESTOR CERTIFICATE
(ALBERTA RESIDENTS ONLY)
The Subscriber certifies that it/he/she is an "accredited investor" as defined
in Multilateral Instrument 45-103 by virtue of qualifying as one of more of the
following (Please insert a checkmark in the bracketed area beside each
applicable paragraph):
INDIVIDUAL INVESTORS
[_] (a) an individual who, either alone or jointly with a spouse,
beneficially owns, directly or indirectly, financial assets
having an aggregate realizable value that before taxes, but
net of any related liabilities, exceeds $1,000,000.
[_] (b) 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.
[_] (c) an individual registered or formerly registered under the
securities legislation of either British Columbia or Alberta,
or under the securities legislation of another jurisdiction of
Canada, as a representative of a person or company referred to
in paragraph (d).
NON-INDIVIDUAL INVESTORS
[_] (d) a person or company registered under the securities
legislation of British Columbia or Alberta, or under the
securities legislation of another jurisdiction in Canada, as
an adviser or dealer, other than a limited market dealer
registered under the SECURITIES ACT (Ontario).
[_] (e) a registered charity under the INCOME TAX AC (Canada).
[_] (f) a corporation, limited partnership, limited liability
partnership, trust or estate, other than a mutual fund or
non-redeemable investment fund, that had net assets of at
least $5,000,000 as shown on its most recently prepared
financial statements.
[_] (g) a person in respect of which all of the owners of interests,
direct or indirect, legal or beneficial, are persons or
companies that are accredited investors.
INSTITUTIONAL INVESTORS
[_] (h) a Canadian financial institution, or an authorized foreign
bank listed in Schedule III of the BANK ACT (Canada).
[_] (i) the Business Development Bank of Canada incorporated under the
BUSINESS DEVELOPMENT BANK Act (Canada).
[_] (j) an association under the COOPERATIVE CREDIT ASSOCIATIONS ACT
(Canada) located in Canada.
[_] (k) a subsidiary of any person referred to in paragraphs (h) to
(j), if the person owns all of the voting securities of the
subsidiary, except the voting securities required by law to be
owned by directors of that subsidiary.
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[_] (l) 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.
[_] (m) a mutual fund or non-redeemable investment fund that, in
either British Columbia or Alberta, distributes its securities
only to persons that are accredited investors.
[_] (n) a mutual fund or non-redeemable investment fund that, in
either British Columbia or Alberta, distributes its securities
under a prospectus for which the regulator has issued a
receipt.
[_] (o) an entity that is organized in a foreign jurisdiction that is
analogous to any of the entities referred to in paragraphs (d)
and (h) through (l).
GOVERNMENT ORGANIZATIONS
[_] (p) the government of Canada or a province, or any crown
corporation or agency of the government of Canada or a
province.
[_] (q) a municipality, public board or commission in Canada.
[_] (r) any national, federal, state, provincial, territorial or
municipal government of or in any foreign jurisdiction, or any
agency of that government.
Dated _________________, 2003.
_________________________________________
Signature of the Subscriber or authorized
signatory of the Subscriber
_________________________________________
Name of Subscriber
_________________________________________
Address of Subscriber
