EXHIBIT 4.18
SUBSCRIPTION AGREEMENT
FLOW-THROUGH UNITS
To: Parkside 2000 Resources 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 $0.20 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.
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Number of Units: ---------------------------------
Total Purchase Price at $0.20 per Unit: ---------------------------------
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PLEASE MAKE CHEQUES AND BANK DRAFTS PAYABLE TO "PARKSIDE 2000 RESOURCES CORP."
DATED at __________________, "January/February 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 (Facsimile Number)
whose 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 Parkside 2000 Resources Corp. on the 21st day
of January, 2003.
PARKSIDE 2000 RESOURCES CORP.
Per:
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Authorized Signatory
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, and the B.C. 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) "CEE" means Canadian Exploration Expenses, as defined in
subsection 66.1(6) of the ITA;
(j) "BI 72-503" means BC Instrument 72-503 of the British Columbia
Securities Commission entitled "Distribution of Securities
Outside of British Columbia";
(k) "Closing" means the day the Purchased Securities are issued to
the Subscriber;
(l) "Commissions" means the Alberta Securities Commission and the
British Columbia Securities Commission;
(m) "Directed Selling Efforts" has the meaning ascribed to it in
Regulation S;
(n) "Exchange" means the TSX Venture Exchange;
(o) "Exemptions" means the exemptions from the prospectus
requirements of the Acts which are outlined in Part 3 (Family,
Friends and Business Associates) or Part 5 (Accredited
Investor) of Multilateral Instrument 45-103 or BI 72-503;
(p) "Exploration Expenditures" means expenditures which qualify
for CEE;
(q) "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;
(r) "Exploration Program" means the exploration program which the
Issuer intends to undertake with respect to its properties;
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(s) "Flow-Through Subscription Funds" means the subscription
proceeds paid by the Subscriber for FT Shares as provided on
page 1 of this Subscription Agreement;
(t) "ITA" means Income Tax Act (Canada) and the regulations
thereunder, both as amended;
(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) "Multilateral Instrument 45-102" means Multilateral Instrument
45-102 "Resale of Securities" published by the Canadian
Securities Administrators;
(x) "Multilateral Instrument 45-103" means Multilateral Instrument
45-103 "Capital Raising Exemptions" adopted by the Alberta and
British Columbia Securities Commissions;
(y) "Parties" or "Party" means the Subscriber, the Issuer or both,
as the context requires;
(z) "Private Placement" means the offering of the Units on the
terms and conditions contained in this Agreement;
(aa) "Purchased Securities" means those Units which the Subscriber
has agreed to purchase under this Agreement;
(bb) "Regulation S" means Regulation S promulgated under the 1933
Act;
(cc) "Regulatory Authorities" means the Commissions and the
Exchange;
(dd) "Securities" means the Units, FT Shares, the Warrants and the
Warrant Shares;
(ee) "Substantial U.S. Market Interest" has that meaning ascribed
to it in Regulation S;
(ff) "United States" has that meaning ascribed to it in Regulation
S;
(gg) "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;
(hh) "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);
(ii) "Warrants" means share purchase warrants of the Issuer which
will be issued as part of the Units; and
(jj) "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.
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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.
2. THE UNITS
2.1 The FT Shares and Warrants will be issued and registered in the name of
the Subscriber or its nominee.
2.2 The aggregate subscription price for the Units will be allocated, as to
$0.1999 per FT Share and, 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 $0.25 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 resident outside of Canada and the United
States;
(c) the Subscriber 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 not
purchasing the Purchased Securities with a view to the resale
or distribution of all or any of the Securities;
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(d) 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;
(e) the Subscriber is either:
(i) an accredited investor as defined in Multilateral
Instrument 45-103 and has completed the "Accredited
Investor Questionnaire" attached as Appendix II; or
(ii) a director, senior officer or control person of the
Issuer, or of an affiliate of the Issuer; or
(iii) a spouse, parent, grandparent, brother, sister or
child of a director, senior officer or control person
of the Issuer, or of an affiliate of the Issuer; or
(iv) a close personal friend of a director, senior officer
or control person of the Issuer, or of an affiliate
of the Issuer; or
(v) a close business associate of a director, senior
officer or control person of the Issuer, or of an
affiliate of the Issuer; or
(vi) a person or company that is wholly-owned by any
combination of persons or companies described in
paragraphs 4.1(e)(ii) to (v);
(f) if the Subscriber is a close personal friend of a director,
senior officer or control person of the Issuer or of an
affiliate of the Issuer, the Subscriber is a direct close
personal friend and has known such person for a sufficient
period of time to be in a position to assess the capabilities
and trustworthiness of that person and is not a close personal
friend solely because:
(i) the individual is a member of the same organization,
association or religious group; or
(ii) the individual is a client or former client;
(g) if the Subscriber is a close business associate of a director,
senior officer or control person of the Issuer or of an
affiliate of the Issuer, the Subscriber is a direct close
business associate and has had sufficient prior business
dealings with such person to be in a position to assess the
capabilities and trustworthiness of that person and is not a:
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(iii) casual business associate or a person introduced or
solicited for the purpose of purchasing securities;
or
(iv) close business associate solely because the
individual is a client or former client;
(h) if the Subscriber is resident outside of Canada, 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
(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:
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(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;
(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,
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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 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 9.1 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 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.
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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 issued capital of the Issuer is 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;
(e) except as qualified by the disclosure in all prospectuses,
filing statements and press releases filed with the
Commissions or the Exchange or the Offering Memorandum, if
any, (the "Disclosure Record"), the Company is the beneficial
owner of the properties, business and assets or the interests
in the properties, business or assets referred to in the
Disclosure Record, 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 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;
(g) the Issuer has complied and will comply fully with the
requirements of all applicable corporate and securities laws
and administrative policies and directions, including, without
limitation, the Acts and the COMPANY ACT (British Columbia) in
relation to the issue and trading of its securities and in all
matters relating to the Private Placement;
(h) there is not presently, and will not be until the closing of
the Private Placement, any material change, as defined in the
Acts, relating to the Issuer or change in any material fact,
as defined in the Acts, relating to the Issuer or any of the
Securities which has not been or will not be fully disclosed
in accordance with the requirements of the Acts and the
policies of the Exchange;
(i) the issue and sale of the Securities by the Issuer does not
and will not conflict with, and does not and will not result
in a breach of, any of the terms of the Issuer's incorporating
documents or any agreement or instrument to which the Issuer
is a party;
(j) the Issuer is not a party to any actions, suits or proceedings
which could materially affect its business or financial
condition, and to the best of the Issuer's knowledge no such
actions, suits or proceedings are contemplated or have been
threatened;
(k) there are no judgments against the Issuer which are
unsatisfied, nor is the Issuer subject to any consent decrees
or injunctions;
(l) this Agreement has been or will be by the Closing, duly
authorized by all necessary corporate action on the part of
the Issuer, and the Issuer has or will have by the Closing
full corporate power and authority to undertake the Private
Placement;
(m) the Issuer is or will be prior to the Closing a "Qualifying
Issuer" as defined in Multilateral Instrument 45-102 and the
"hold period" under Multilateral Instrument 45-102 will not
exceed four
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months from the date of issuance of the Purchased Securities
in respect of the FT Shares, the Warrants and the Warrant
Shares;
(n) the Issuer is not in default of any of the requirements of the
Acts or any of the administrative policies or notices of the
Exchange;
(o) no order ceasing or suspending trading in securities of the
Issuer nor prohibiting the sale of such securities has been
issued to and is outstanding against the Issuer or its
directors, officers or promoters or against any other
companies that have common directors, officers or promoters
and no investigations or proceedings for such purposes are
pending or threatened;
(p) except as disclosed in the Disclosure Record, no person has
any right, agreement or option, present or future, contingent
or absolute, or any right capable of becoming such a right,
agreement or option, for the issue or allotment of any
unissued shares in the capital of the Issuer or its
subsidiaries, if any, or any other security convertible into
or exchangeable for any such shares, or to require the Issuer
or its subsidiaries, if any, to purchase, redeem or otherwise
acquire any of the issued and outstanding shares in its
capital;
(q) the Issuer has filed all federal, provincial, local and
foreign tax returns which are required to be filed, or have
requested extensions thereof, and have paid all taxes required
to be paid by them and any other assessment, fine or penalty
levied against them, to the extent that any of the foregoing
is due and payable, except for such assessments, fines and
penalties which are currently being contested in good faith;
and
(r) the Issuer has established on its books and records reserves
which are adequate for the payment of all taxes not yet due
and payable and there are no liens for taxes on the assets of
the Issuer or its subsidiaries, if any, except for taxes not
yet due, and there are no audits of any of the tax returns of
the Issuer which are known by the Issuer's management to be
pending, and there are no claims which have been or may be
asserted relating to any such tax returns which, if determined
adversely, would result in the assertion by any governmental
agency of any deficiency which would have a material adverse
effect on the properties, business or assets of the Issuer.
5.2 The representations and warranties contained in this section will
survive the Closing.
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, if not already filed with the Exchange, or if the
most recently filed form has changed; and
(d) a duly competed and fully executed Accredited Investor
Questionnaire in the form set out in Appendix II, if the
Subscriber is an Accredited Investor.
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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 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. TAX PROVISIONS RELATING TO FT SHARES
8.1 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 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 8.1(c).
8.2 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.
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8.3 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:
(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.
8.4 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.
8.5 APPLICATION OF EXPLORATION FUND. Subject to the Issuer's right to
revise the Exploration Program as provided for in section 8.6 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.
8.6 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.
8.7 EXPLORATION BENEFITS. Subscribers will not acquire any rights in the
properties of the Issuer, including property acquired with the
Exploration Fund.
8.8 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.
8.9 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
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incurred with the Exploration Fund (and has not been
previously renounced) to the effective date of such
renunciation and within sixty (60) days thereafter;
(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.
8.10 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.
8.11 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.
8.12 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.
8.13 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.
8.14 FORCE MAJEURE. Notwithstanding paragraph 8.1(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.
9. MISCELLANEOUS
9.1 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) or the Accredited
Investor Questionnaire (Appendix II) which has been executed by the
Subscriber 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 -
9.2 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.
9.3 This Agreement, which includes any interest granted or right arising
under this Agreement, may not be assigned or transferred.
9.4 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.
9.5 The Parties may amend this Agreement only in writing.
9.6 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.
9.7 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.
9.8 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 once, 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 of Placee:
---------------------------------------------------
(b) Complete Address:
-------------------------------------------------
(c) Jurisdiction of Incorporation or Creation:
------------------------
2. (a) Is the Placee purchasing securities as a portfolio manager (Yes/
No)?
(b) Is the Placee carrying on business as a portfolio manager outside
of Canada (Yes/No)?
3. If the answer to 2(b) above was "Yes", the undersigned certifies that:
(a) It is purchasing securities of an Issuer on behalf of managed
accounts for which it is making the investment decision to
purchase the securities and has full discretion to purchase or
sell securities for such accounts without requiring the client's
express consent to a transaction;
(b) it carries on the business of managing the investment portfolios
of clients through discretionary authority granted by those
clients (a "portfolio manager" business) in
_________________________ [jurisdiction], and it is permitted by
law to carry on a portfolio manager business in that jurisdiction;
(c) it was not created solely or primarily for the purpose of
purchasing securities of the Issuer;
(d) the total asset value of the investment portfolios it manages on
behalf of clients is not less than $20,000,000; and
(e) it has no reasonable grounds to believe, that any of the
directors, senior officers and other insiders of the Issuer, and
the persons that carry on investor relations activities for the
Issuer has a beneficial interest in any of the managed accounts
for which it is purchasing.
4. If the answer to 2(a), above was "No", please provide the names and
addresses of control persons of the Placee:
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------------------- ----------------- --------------------- --------------------
NAME CITY PROVINCE OR COUNTRY
STATE
------------------- ----------------- --------------------- --------------------
------------------- ----------------- --------------------- --------------------
------------------- ----------------- --------------------- --------------------
------------------- ----------------- --------------------- --------------------
------------------- ----------------- --------------------- --------------------
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 acquisition (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
ACCREDITED INVESTOR QUESTIONNAIRE
(Capitalized terms not specifically defined in this Questionnaire have the
meaning ascribed to them in the Subscription Agreement to which this Schedule is
attached.)
In connection with the execution of the Subscription Agreement to which this
Schedule is attached, the undersigned (the "Subscriber") represents and warrants
to the Issuer that:
If I am an individual (that is, a natural person and not a corporation,
partnership, trust or other entity), then I satisfy one or more of the
categories indicated below (please place an "X" on the appropriate lines):
____ Category 1 an individual who, either alone or jointly with a
spouse, beneficially owns financial assets having an
aggregate realizable value that before taxes, but net of
any related liabilities, exceeds $1,000,000, where
"financial assets" means cash and securities and
"related liabilities" means (i) liabilities incurred or
assumed for the purpose of financing the acquisition or
ownership of financial assets, or (ii) liabilities that
are secured by financial assets
____ Category 2 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
____ Category 3 an individual registered under the securities
legislation of any province or territory of Canada, as
an adviser or dealer, other than a limited market dealer
registered under the SECURITIES ACT (Ontario)
____ Category 4 an individual registered or formerly registered under
the securities legislation of any province or territory
of Canada as a representative of a person or company
registered under the securities legislation of any
province or territory of Canada, as an adviser or
dealer, other than a limited market dealer registered
under the SECURITIES ACT (Ontario)
If the Subscriber is NOT an individual (that is, the Subscriber is a
corporation, partnership, trust or other entity other than an individual), then
the Subscriber satisfies one or more of the categories indicated below (please
place an "X" on the appropriate lines):
Institutional Investors
____ Category 5 a bank listed in schedule I or II of the BANK ACT
(Canada), or an authorized foreign bank listed in
schedule III of the BANK ACT (Canada)
- 2 -
____ Category 6 the Business Development Bank of Canada incorporated
under the Business Development Bank of Canada Act
(Canada)
____ Category 7 a loan corporation or trust company that, in each case,
is authorized to carry on business in Canada or a
province or territory of Canada
____ Category 8 a credit union or caisse populaire that, in each case,
is authorized to carry on business in Canada or a
province or territory of Canada
____ Category 9 an association under the COOPERATIVE CREDIT ASSOCIATIONS
ACT (Canada) located in Canada
____ Category 10 an insurance company authorized to carry on business in
Canada or a province or territory of Canada
____ Category 11 a subsidiary of any company referred to in Categories 5
to 10 where the company owns all of the voting shares of
the subsidiary
____ Category 12 a person or company registered under the securities
legislation of any province or territory of Canada, as
an adviser or dealer, other than a limited market dealer
registered under the SECURITIES ACT (Ontario)
____ Category 13 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
____ Category 14 a company, syndicate, partnership, trust or
unincorporated organization organized outside of Canada
that is analogous to any of the entities referred to in
Categories 5 to 13 in form and function
____ Category 15 a mutual fund or non-redeemable investment fund that, in
the province or territory where the securities of the
Issuer are being sold, distributes its securities only
to persons or companies that are accredited investors
____ Category 16 a mutual fund or non-redeemable investment fund that, in
the province or territory where the securities of the
Issuer are being sold, distributes its securities under
a prospectus for which the regulator has issued a
receipt
Government Organizations
____ Category 17 the government of Canada or a province, or any crown
corporation or agency of the government of Canada or a
province
____ Category 18 a municipality in Canada
____ Category 19 any national, federal, state, provincial, territorial or
municipal government of or in any foreign jurisdiction,
or any agency of that government
- 3 -
Other Corporations, Partnerships, Trusts & Charities
____ Category 20 a registered charity under the INCOME TAX ACT (Canada)
____ Category 21 a company, 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
____ Category 22 a person or company in respect of which all of the
owners of interests, direct or indirect, legal or
beneficial, are persons or companies that are accredited
investors
The statements made in this Questionnaire are true and accurate to the best of
my information and belief and I will promptly notify the Issuer of any changes
in the answers.
Dated _______________ 2003.
X--------------------------------------------
Signature of individual (if Subscriber IS an
individual)
X--------------------------------------------
Authorized signatory (if Subscriber is NOT an
individual)
---------------------------------------------
Name of Subscriber (PLEASE PRINT)
---------------------------------------------
Name of authorized signatory (PLEASE PRINT)
---------------------------------------------
Official capacity of authorized signatory
(PLEASE PRINT)
