Exhibit 4
SUBSCRIPTION AGREEMENT
TO: Cryopak Industries Inc.
0000 Xxxxxxx Xxx
Xxxxx, X.X.
X0X 0X0
The undersigned subscriber (the "Purchaser") hereby irrevocably subscribes for
1,785,714 Units, each Unit comprised of one Common Share and one half of a
Common Share Purchase Warrant of Cryopak Industries Inc. (the "Corporation") for
an aggregate consideration of $500,000, representing a subscription price of
$0.28 per Unit, on the terms and conditions set out in paragraphs 1 through 24
attached. Each whole Warrant entitles the holder to acquire one Common Share for
a period of 24 months from the date of issue of the Units at a price of $0.37
per Common Share.
DATED at Montreal, in the Province of Quebec this ____ day of December, 2003.
Esarbee Investments Limited 0xx Xxxxx, 0000 Xxxx Xxxxxx
------------------------------------------------- --------------------------------------------------
(Name of Purchaser - please print) (Purchaser's Address)
/s/ Xxxxxx Xxxxxxx Xxxxxxxx, XX X0X 0X0
------------------------------------------------- --------------------------------------------------
Authorized Signature
Vice-President 000-000-0000
------------------------------------------------- --------------------------------------------------
(Official Capacity or Title - please print) (Telephone Number)
Xxxxxx Xxxxxxx 3,150,000 shares and 937,500 warrants
------------------------------------------------- --------------------------------------------------
(Please print name of individual whose Present Direct & Indirect Holdings of Securities
signature appears above if different than the of the Corporation
name of the subscriber printed above)
Is the Purchaser an Insider of the Corporation? Is the Purchaser a member of the Pro Group as
defined by TSX?
|X| YES |_| NO |_| YES |_| NO
Registration Instructions Delivery Instructions
------------------------- ---------------------
Esarbee Investments Limited 8th Floor, 0000 Xxxx Xxxxxx, Xxxxxxxx, XX X0X 0X0
------------------------------------------------- --------------------------------------------------
Name Address
------------------------------------------------- --------------------------------------------------
Account reference, if applicable Account reference, if applicable
0xx Xxxxx, 0000 Xxxx Xxxxxx, Xxxxxxxx, XX X0X 0X0 Oded Tal
------------------------------------------------- --------------------------------------------------
Address Contact Name
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Definitions
1. In this Agreement, unless the subject matter or context is inconsistent
therewith:
(a) "Agreement" means this agreement, as amended or supplemented from
time to time;
(b) "Business Day" means a day, other than a Saturday, on which Canadian
chartered banks are open for general banking business in Vancouver,
British Columbia;
(c) "TSX" means the TSX Venture Exchange, Inc.;
(d) "Closing Date" means such date, as soon as reasonably practicable
following TSX approval of the private placement contemplated hereby,
as determined by the Corporation and agreed to by the Purchaser;
(e) "Closing Time" means 10:00 a.m. (Vancouver time) on the Closing Date
or such other time as the Purchaser and the Corporation may agree;
(f) "Common Shares" means common shares in the capital of the
Corporation;
(g) "Proceeds" means proceeds from the sale of the Units;
(h) "Purchased Units" means the Units purchased by the Purchaser
pursuant to this Agreement;
(i) "Subscription Price" means the aggregate subscription price paid by
the Purchaser for the Purchased Units, being the number of Purchased
Units multiplied by $0.28 per Purchased Unit;
(j) "Unit" means a unit comprised of one Common Share and one half of a
Warrant;
(k) "Warrant" means a share purchase warrant entitling the holder to
acquire one Common Share at a price of $0.37 per share for a period
of 24 months from the Closing Date; and
(l) "Warrant Shares" means the Common Shares issuable on exercise of the
Warrants.
Subscription for Units
2. The Purchaser hereby confirms its subscription for and agrees to take up
the Purchased Units as provided for on the initial page of this Agreement
and further agrees that the Subscription Price will be paid on or before
the Closing Date by certified cheque, bank draft or wire transfer to the
account set out below payable to XxXxxxxx Xxxxxxxx LLP, in trust, as
counsel to the Corporation or payable in such other manner as may be
specified by the Corporation.
Wire Transfer Account
HSBC Bank Canada
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, X.X. X0X 0X0
Account No. 266944-090
Transit No. 10020
Routing No. 000000000
Swift No. XXXXXXXX
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Such funds shall be held in trust and shall only be released to the
Corporation upon final approval by the TSX of the private placement
contemplated hereby. In the event that such approval is not received by
November 30, 2003, such funds shall forthwith be returned to the
Purchaser, at the address set forth on the execution page of this
Agreement, together with any interest accrued thereon, and this Agreement
shall be deemed to have been terminated.
3. The Purchaser acknowledges that this Agreement is subject to acceptance by
the Corporation. The Corporation acknowledges that the obligations of the
Purchaser hereunder are subject to final TSX approval of the private
placement contemplated hereby.
4. The Purchaser acknowledges that this Agreement is given for valuable
consideration and may not be withdrawn or revoked. The acceptance of this
Agreement shall be effective upon execution of this Agreement on behalf of
the Corporation.
5. In addition to one manually signed, completed copy of this Agreement
(including all applicable Annexes and, in the case of Purchasers who are
not individuals, a completed Form 4C - Corporate Placee Registration Form,
each in the form attached hereto), the Purchaser will execute and deliver
to the Corporation, at or before the Closing Time, or such later time as
the Corporation may accept, all other documentation as may be required by
applicable securities legislation, policy statements and orders and the
TSX to permit the issue and sale of the Purchased Units pursuant to this
Agreement and the issuance of the Common Shares, Warrants and Warrant
Shares underlying the Units. The Purchaser acknowledges and agrees that
any such documentation, when executed and delivered by the Purchaser, will
form part of and will be incorporated into this Subscription Agreement
with the same effect as if each constituted a representation and warranty
or covenant of the Purchaser hereunder in favour of the Corporation and
the Purchaser consents to the filing of such documents as may be required
to be filed with any stock exchange or any securities regulatory authority
in connection with the transactions contemplated hereby.
Representations, Warranties and Covenants of the Purchaser
6. By executing this Agreement, the Purchaser represents and warrants to the
Corporation (and acknowledges that the Corporation is relying thereon)
that:
(a) the Purchaser has been independently advised as to and is aware of
the applicable restrictions on the resale of Units and the Common
Shares, Warrants and Warrant Shares underlying the Units imposed by
securities legislation in the jurisdiction in which it resides and
is aware of the risks and other characteristics of such securities
and of the fact that the Purchaser may not be able to sell such
securities except in accordance with applicable securities
legislation and regulatory policies and the Purchaser (and any
others for whom it is contracting) is solely responsible (and the
Corporation is not in any way responsible) for compliance with
applicable resale restrictions;
(b) it and any beneficial purchaser for whom it is acting are resident
in the jurisdiction set out in the heading "Purchaser's Address"
opposite its signature as set forth above;
(c) the Purchaser is either:
(i) purchasing as principal for its own account and not for the
benefit of any other person; or
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(ii) an insurance company or extraprovincial insurance corporation
authorized to carry on insurance business under the Financial
Institutions Act (British Columbia), a trust company or
extraprovincial trust corporation authorized under the
Financial Institutions Act (British Columbia) to carry on
trust business or deposit business or a portfolio manager that
is registered or exempted from registration as a portfolio
manager under the Securities Act (British Columbia) and the
Purchaser is purchasing the securities as an agent or trustee
for accounts that are fully managed by it, provided that, as
used herein an account is "fully managed" by the Purchaser
only if the Purchaser makes the investment decisions for the
account and has full discretion to purchase or sell securities
for the account without requiring the client's express consent
to a transaction;
and the Purchaser is either:
(iii) an "accredited investor" as defined in Multilateral Instrument
45-103 - Capital Raising Exemptions such that one or more of
the categories set forth in Annex 1 to this Agreement
correctly and in all respects describes the Purchaser, and the
Purchaser has so indicated by checking the box opposite each
category on such Annex 1 which so describes it or the
beneficial purchaser, as applicable, and the Purchaser
acknowledges that by signing this Agreement it is certifying
that the statements made by checking the appropriate
accredited investor categories are true and correct;
(iv) one or more of:
A. a "director", "senior officer" or "control person" of
the Corporation, or of an "affiliate" of the Corporation
(within the meaning of these expressions as used in
applicable securities laws);
B. a "spouse", parent, grandparent, brother, sister or
child of a director, senior officer or control person of
the Corporation, or of an affiliate of the Corporation;
C. a parent, grandparent, brother, sister or child of the
spouse of a director, senior officer or control person
of the Corporation, or of an affiliate of the
Corporation;
D. a "close personal friend" (within the meaning of that
expression as used in applicable securities laws) (by
reason of the fact that you have directly known such
individual well enough and for a sufficient period of
time and in a sufficiently close relationship (where
such relationship is direct and extends beyond being a
relative or a member of the same organization,
association or religious group or a client, customer or
former client or customer or being a close personal
friend of a close personal friend of such individual) to
be in a position to assess the capabilities and the
trustworthiness of such individual) of a director,
senior officer or control person of the Corporation, or
of an affiliate of the Corporation;
E. a "close business associate" (within the meaning of that
expression as used in applicable securities laws) (by
reason of the fact that you have
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had direct sufficient prior business dealings with such
individual (where such relationship is direct and
extends beyond being a casual business associate or a
person introduced or solicited for the purpose of
purchasing securities or a client, customer or former
client or customer or being a close business associate
of a close business associate of such individual) to be
in a position to assess the capabilities and
trustworthiness of such individual) of a director,
senior officer or control person of the Corporation, or
of an affiliate of the Corporation;
F. a "founder" (within the meaning of that expression as
used in applicable securities laws) of the Corporation
or a spouse, parent, grandparent, brother, sister,
child, close personal friend or close business associate
of a founder of the Corporation;
G. a parent, grandparent, brother, sister or child of the
spouse of a founder of the Corporation;
H. a person or company of which a majority of the voting
securities are beneficially owned by, or a majority of
the directors are, persons or companies described in
clauses (iv)(A) to (iv)(G) above; or
I. a trust or estate of which all of the beneficiaries or a
majority of the trustees are persons or companies
described in clauses (iv)(A) to (iv)(G) above;
and has concurrently executed and delivered a certificate in
the form attached as Annex 3 hereto; or
(v) purchasing a sufficient number of Units such that the
aggregate acquisition cost to the Purchaser is not less than
$97,000;
(d) if the Purchaser is a resident, or the purchase and sale of the
Units by the Purchaser is otherwise subject to the applicable
securities laws of, Alberta:
(i) the Purchaser is either:
A. purchasing as principal for its own account and not for
the benefit of any other person; or
B. is trading for accounts fully managed by it and it is
(I) a trust corporation trading as a trustee or an
agent, (II) a portfolio manager trading as an agent or
(III) a person or company trading as an agent that,
except for an exemption under the Securities Act
(Alberta) or the regulations thereunder, is required to
be registered as a portfolio manager;
(e) if the Purchaser is a resident, or the purchase and sale of
the Units by the Purchaser is otherwise subject to the
applicable securities laws of, Ontario, it is an "accredited
investor" as defined in OSC Rule 45-501 - Exempt Distributions
such that one or more of the categories set forth in Annex 2
to this Agreement correctly and in all respects describes the
Purchaser, and the Purchaser has so indicated by checking the
box opposite each category on such Annex 2 which so describes
it or the beneficial purchaser, as
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applicable, and the Purchaser acknowledges that by signing
this Agreement it is certifying that the statements made by
checking the appropriate accredited investor categories are
true and correct;
(f) if the Purchaser is a resident, or the purchase and sale of
the Units by the Purchaser is otherwise subject to the
applicable securities laws of, Quebec:
(i) it is a sophisticated purchaser within the meaning of
Section 43, 44, or 45 of the Securities Act (Quebec) and
the Purchaser, if referred to in Section 44 of such Act,
is purchasing the Units for its own account, or if it is
a trust company licensed under the Act respecting trust
companies and savings companies (Quebec) or an insurance
company holding a license under an Act respecting
insurance (Quebec) or a dealer or advisor registered in
conformity with section 148 of the Securities Act
(Quebec), it is purchasing the Units for the portfolio
of a third person managed solely by that company, dealer
or advisor; or
(ii) the total cost of the Units to it is at least $150,000
and it is acting for its own account;
(g) if the Purchaser is resident in a jurisdiction (the
"International Jurisdiction") outside of Canada and the United
States:
(i) the Purchaser is knowledgeable of, or has been
independently advised as to, the applicable securities
laws of the International Jurisdiction (which are
defined in this Subscription Agreement to mean, in
respect of each and every offer or sale of Units and the
Common Shares, Warrants and Warrant Shares underlying
the Units, the securities legislation having application
and the rules, policies, notices and orders issued by
the securities regulatory authorities having
jurisdiction over the Purchaser and the Offering (other
than the laws of Canada and the U.S.) which would apply
to this subscription, if there are any);
(ii) the Purchaser is purchasing the Units pursuant to
exemptions from the prospectus and registration
requirements under the applicable securities laws of the
International Jurisdiction or, if such requirements are
not applicable, the Purchaser is permitted to purchase
the Purchaser's Units under the applicable securities
laws of the International Jurisdiction without the need
to rely on such exemptions;
(iii) the applicable securities laws of the International
Jurisdiction do not require the Corporation to make any
filings or seek any approvals of any kind whatsoever
from any regulatory authority of any kind whatsoever in
the International Jurisdiction and the distribution of
the Units and the Common Shares, Warrants and Warrant
Shares underlying the Units to the Purchaser by the
Corporation complies with all applicable securities laws
of the International Jurisdiction;
(iv) the Units and the Common Shares, Warrants and Warrant
Shares underlying the Units are being acquired for
investment only and not with a view to resale and
distribution; and
(v) the purchase of the Units by the Purchaser does not
trigger:
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A. any obligation to prepare and file a prospectus or
similar document, or any other report with respect
to such purchase; or
B. any registration or other obligation on the part
of the Corporation;
(h) if the Purchaser is not an individual and is a corporation,
partnership, party, trust, fund, association or other organized
group of persons it was not created and is not being used primarily
to permit any individual to purchase securities without a
prospectus;
(i) no person has made to the Purchaser any written or oral
representations:
(i) that any person will resell or repurchase the Units or the
Common Shares, Warrants or Warrant Shares underlying the
Units;
(ii) that any person will refund the purchase price of the Units;
or
(iii) as to the future price or value of any of the Units or the
Common Shares, Warrants or Warrant Shares underlying the
Units.
(j) the Purchaser is not a "control person" of the Corporation as
defined in the applicable securities legislation, will not become a
"control person" by virtue of this purchase of the Units or the
Common Shares, Warrants or Warrant Shares underlying the Units, and
does not intend to act in concert with any other person to form a
control group of the Corporation;
(k) the offer was not made to the Purchaser when the Purchaser was in
the United States;
(l) the Purchaser acknowledges that the Units and the Common Shares,
Warrants or Warrant Shares underlying the Units have not been
registered under the United States Securities Act of 1933 (the "U.S.
Securities Act") and may not be offered or sold in the United States
unless subsequently registered under the U.S. Securities Act and the
securities laws of all applicable states of the United States or
unless an exemption from such registration requirements is
available, and that the Corporation has no obligation or present
intention of filing a registration statement under the U.S.
Securities Act in respect of such securities;
(m) the Purchaser is not a U.S. Person (as defined in Regulation S
promulgated under the U.S. Securities Act);
(n) the Purchaser is not and will not be purchasing Units for the
account or benefit of any U.S. Person;
(o) the Purchaser (or others for whom it is contracting hereunder) has
been advised to and has had the opportunity to consult its own legal
and tax advisors with respect to this Agreement, the exhibits and
the schedules attached hereto and the transactions contemplated
hereby (including without limitation any applicable resale
restrictions and tax considerations) and it (or others for whom it
is contracting hereunder) is solely responsible for compliance with
applicable resale restrictions and applicable tax legislation;
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(p) the Purchaser has no knowledge of a "material fact" or "material
change" (as those terms are defined in the applicable securities
legislation) in the affairs of the Corporation that has not been
generally disclosed to the public, save knowledge of this particular
transaction;
(q) the Purchaser has the legal capacity and competence to enter into
and execute this Agreement and to take all actions required pursuant
hereto and, if the Purchaser 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
execution of this Agreement on behalf of the Purchaser;
(r) 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 Purchaser;
(s) this Agreement has been duly executed and delivered by the Purchaser
and constitutes a legal, valid and binding agreement of the
Purchaser enforceable against the Purchaser in accordance with its
terms, subject to the qualification that enforcement thereof is
subject to applicable bankruptcy, insolvency, reorganization or
other laws affecting creditors' rights generally; and
(t) if required by applicable securities legislation, policy or order or
by any securities commission, stock exchange or other regulatory
authority, the Purchaser will execute, deliver, file and otherwise
assist the Corporation in filing, such reports, undertakings and
other documents with respect to the issue of the Units and the
Common Shares, Warrants and Warrant Shares underlying the Units as
may be required.
7. The foregoing representations, warranties and covenants are made by the
Purchaser with the intent that they be relied upon by the Corporation in
determining its suitability as a purchaser of Units, and the Purchaser
hereby agrees to indemnify the Corporation 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 Purchaser undertakes to notify
the Corporation immediately of any change in any representation, warranty
or other information relating to the Purchaser set forth herein which
takes place prior to the Closing.
Acknowledgements of Purchaser
8. THE PURCHASER FURTHER ACKNOWLEDGES THAT AN INVESTMENT IN THE UNITS AND
COMMON SHARES, WARRANTS AND WARRANT SHARES COMPRISED THEREIN MUST BE
CONSIDERED SPECULATIVE AND IS SUBJECT TO A NUMBER OF RISK FACTORS. THE
SUBSCRIBER COVENANTS AND AGREES TO COMPLY WITH THE APPLICABLE SECURITIES
LEGISLATION, REGULATIONS, ORDERS OR POLICIES CONCERNING THE PURCHASE,
HOLDING OF, AND RESALE OF SUCH SECURITIES.
9. The Purchaser further acknowledges that it has not received, nor has it
requested, nor does it have any need to receive, any offering memorandum,
or other documents (other than an annual report, interim report or other
documents the contents of which are prescribed by statute) describing the
business and affairs of the Corporation which has been prepared for
delivery to, and review by, prospective purchasers in order to assist it
in making an investment decision in respect of the
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Units and, insofar as the Purchaser is aware, the offering of the Units is
not being made through any advertisement in the printed media of general
and regular paid circulation, radio or television or any other form of
advertisement or as part of a general solicitation.
10. The Purchaser acknowledges that the offer made by this subscription is
irrevocable (subject to the Purchaser's right to withdraw its subscription
and to terminate its obligations as set out in this Agreement) and
requires acceptance by the Corporation and approval of the TSX.
Representations and Warranties of the Corporation
11. The Corporation hereby represents and warrants to the Purchaser that:
(a) It has been duly incorporated and is a valid and subsisting
corporation under the laws of the Province of British Columbia, is
in good standing with the corporate governmental authorities of such
jurisdiction with respect to the filing of annual returns and such
other filings as are necessary to maintain the corporate existence,
and has full corporate power and authority to own, lease and operate
its property and assets, to conduct its business as such business is
now being conducted and as currently proposed to be conducted and to
enter into this Agreement and to perform its obligations hereunder;
(b) There has not been any material change in the assets, liabilities or
obligations (contingent or otherwise), business, operations or
capital of the Corporation since June 30, 2003, except as has been
publicly disclosed;
(c) It is a "reporting issuer" under the Securities Act (British
Columbia) and the Securities Act (Alberta) and is not on the list of
defaulting issuers maintained pursuant to the securities laws of
said provinces;
(d) It has filed a current annual information form and is, and will be
on the Closing Date, a "Qualifying Issuer" within the meaning of
Multilateral Instrument 45-102 - Resale of Securities;
(e) There are no claims, actions, suits, judgments, or proceedings
pending against or affecting the Corporation which will or may have
a material adverse effect upon the Corporation, and, except as has
been publicly disclosed by the Corporation with respect to the
convertible loan agreement (the "CLA") dated as of February 24, 2000
between the Corporation and ICSOS S.A., the Corporation is not aware
of any reasonable ground for any such claims, actions, suits,
judgments or proceedings;
(f) The issue of the Units has been approved by all requisite corporate
action and upon Closing, the Common Shares comprised in the Units
shall have been validly issued as fully paid and non-assessable; the
Warrant Shares comprised in the Units will, upon the due exercise of
the Warrants, be validly issued as fully paid and non-assessable;
(g) The TSX has approved the issuance of the Units and the listing
thereof and the issuance of the Units is exempt from registration
and prospectus requirements under the Securities Act (British
Columbia) and the regulations promulgated thereunder;
(h) The Corporation has not sustained, since June 30, 2003, being the
date of its latest quarterly financial statements, any material loss
or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any
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labour dispute or court or governmental action, order or decree or
from any regulatory body having jurisdiction. Except as has been
publicly disclosed, since June 30, 2003 (i) there has not been any
change in the authorized share capital of the Corporation, (ii) the
Corporation has not incurred any liabilities or obligations
(absolute, accrued, contingent or otherwise) or entered into any
transactions not in the ordinary course of business that are
material to the Corporation and (iii) there has not been any
material adverse change, or any development involving a prospective
material adverse change (including prospective material adverse
changes or, to the best of the Corporation's knowledge, threatened
claims or contingent liabilities), in or affecting the general
affairs, management, financial position, shareholders' equity or
results of operations of the Corporation;
(i) The Corporation has good and marketable title to all movable
property owned by it which is material, individually or in the
aggregate, to the Corporation. Any real property held under lease by
the Corporation, which is material, individually or in the
aggregate, to the Corporation is held by it under valid, subsisting
and enforceable leases with such exceptions as are not material,
individually or in the aggregate, to the Corporation;
(j) The Corporation, where required, has been duly qualified as an
extra-provincial or foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any
business;
(k) There are 32,464,054 Common Shares issued and outstanding, all of
which have been duly authorized and validly issued as fully paid and
non-assessable (and no others). There are no outstanding
subscriptions, warrants, options, agreements, convertible or
exchangeable securities or other commitments pursuant to which the
Corporation is or may become obligated to issue, sell, purchase,
return or redeem any shares of capital stock or other securities of
the Corporation, other than in connection with the private placement
contemplated hereby and those set out below:
(i) Incentive Stock Options 4,036,000
(ii) Warrants 3,750,000
(iii) Earn-out Shares 1,687,500
(iv) Cashless Stock Options (Xxxxxx Securities) 300,000;
(l) The Corporation has no material subsidiaries, as such term is
defined in the Canada Business Corporations Act, except as disclosed
in the Corporation's Annual Information Form for the fiscal year
ended March 31, 2003 which has been duly filed with the British
Columbia Securities Commission and the TSX;
(m) The Corporation is a "foreign private issuer" as defined in Rule 3b
4(c) under the United States Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and has filed with the United States
Securities and Exchange Commission (the "SEC") on a timely basis all
forms, reports, schedules and other information (collectively, the
"SEC Reports") required to be filed by it with the SEC. The SEC
Reports (i) complied as to form in all material respects with the
applicable requirements of the U.S. Securities Act, as amended, or
the Exchange Act, and the respective rules and regulations
thereunder as in effect at the time they were filed, and (ii) did
not at the time they were filed contain
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any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading;
(n) The Corporation is not in violation of its constating documents,
bylaws or resolutions of its directors or shareholders or, except as
has been publicly disclosed by the Corporation with respect to the
CLA and the Corporation's loan facility with HSBC, in default in the
performance of any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a
party or by which it is bound or to which any of its property or
assets is subject which violation, default or defaults, individually
or in the aggregate, would have a material adverse effect on the
financial position, business, affairs, prospects, shareholders'
equity or results of operations of the Corporation. The compliance
by the Corporation with all of the provisions of this Agreement and
the consummation of the transactions contemplated herein:
(i) will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien,
charge or encumbrance on any of the property or assets of the
Corporation pursuant to the terms of any indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or
instrument to which the Corporation is a party or by which the
Corporation is bound or to which any of the property or assets
of the Corporation are subject;
(ii) will not result in any violation of any of the terms or
provisions of the constating documents, by laws or resolutions
of the directors or shareholders of the Corporation; and
(iii) will not result in any violation of any statute or any order,
rule or regulation of any court or governmental agency or body
having jurisdiction over the Corporation or any of its
properties;
other than, in the case of clauses (i) and (iii) above, any breach,
default, violation or conflict which, individually or in the
aggregate, will not have a material adverse effect on the business,
affairs, prospects, financial position, shareholders' equity or
results of operations of the Corporation;
(o) All consents, approvals. permits, authorizations or filings as may
be required under United States and Canadian securities laws and the
rules of the TSX necessary for the execution and delivery of and the
performance by the Corporation of its obligations under this
Agreement have been made or obtained on the Closing Date, other than
the filing of the requisite distributions reports and related
documents;
(p) As at the Closing Date, no holder of outstanding Common Shares or
other securities of the Corporation will be entitled to any
preemptive or any similar rights to subscribe for or otherwise
acquire any of the Units, Common Shares, Warrants and Warrant Shares
underlying the Units or other securities of the Corporation, and
except as contemplated by this Agreement and except as has been
publicly disclosed by the Corporation, no rights, warrants or
options (other than under Corporation's stock option plan) to
acquire, or instruments convertible into or exchangeable for any
shares in the capital of the Corporation are outstanding;
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(q) The Corporation has not been served with or otherwise received
notice of any legal or governmental proceedings and there are no
legal or governmental proceedings pending to which the Corporation
is a party or of which any property or asset of the Corporation is
the subject which is reasonably likely, individually or in the
aggregate, to have a material adverse effect on the business,
affairs, prospects, financial position, shareholders' equity or
results of operations of the Corporation, or which might reasonably
be expected to materially and adversely affect the consummation by
the Corporation of the transactions contemplated by this Agreement.
To the best of the Corporation's knowledge, no such proceedings have
been threatened (implicitly or otherwise) or contemplated against
the Corporation by governmental or regulatory authorities or any
other parties;
(r) The Corporation holds all of the permits, licenses and like
authorizations necessary for it to carry on its business in each
jurisdiction where such business is carried on. Each of such
permits, licenses and like authorizations is in good standing and
the Corporation is not in default with respect to filings to be
effected or conditions to be fulfilled in order to maintain such
permits, licenses or like authorizations in good standing, except
where the failure to hold any such permit, license or authorization
or default does not have a material adverse effect on the business,
affairs, prospects, financial position, shareholders' equity or
results of operations of the Corporation;
(s) The Corporation is not in violation of any law, ordinance,
administrative or governmental rule or regulation or court decree
applicable to it, nor is it not in compliance with any term or
condition of, nor has it failed to obtain, any licence, permit,
franchise or other administrative or governmental authorization
necessary to the ownership of its property or to the conduct of its
business, which violation, non-compliance or failure to obtain
would, individually or in the aggregate, have a material adverse
effect on the business, affairs, prospects, financial position,
shareholders' equity or results of operations of the Corporation or
which might reasonably be expected to materially and adversely
affect the consummation by the Corporation of the transactions
contemplated by this Agreement. All such licences, permits.
franchises or other administrative or governmental authorizations
are valid and subsisting and in good standing and none of the same
contains any term, provision, condition or limitation which has or
would reasonably be expected to affect or restrict in a materially
adverse manner the operation of the business of the Corporation, as
now carried on or proposed to be carried on. The Corporation is not
aware of any legislation, regulations or proposed legislative or
regulatory changes which would materially and adversely affect the
business, prospects or operations of the Corporation or the
financial position, shareholders' equity or results of operations of
the Corporation;
(t) There are no outstanding obligations for the Corporation to purchase
or redeem any shares or other securities of the Corporation;
(u) This Agreement has been duly and validly authorized, executed and
delivered by the Corporation and constitutes a valid and binding
obligation of the Corporation enforceable against it in accordance
with its terms, subject to the qualification that enforcement
thereof is subject to applicable bankruptcy, insolvency,
reorganization or other laws affecting creditors' rights generally;
(v) The financial statements of the Corporation for the fiscal year
ended March 31, 2003 are true and correct in all material respects,
and the quarterly financial statements of the Corporation issued
thereafter are true and correct in all material respects, present
fairly
- 13 -
the financial position and condition of the Corporation as at the
dates indicated and the results of its operations for the periods
specified, reflect all material liabilities (absolute, accrued,
contingent or otherwise) of the Corporation as at the dates
indicated and have been prepared in conformity with generally
accepted accounting principles in Canada applied on a consistent
basis;
(w) With such exceptions as are not material to the Corporation (i) the
Corporation has duly and on a timely basis filed all tax returns
required to be filed by it, has paid all taxes due and payable by it
and has paid all assessments and reassessments and all other taxes,
governmental charges, penalties, interest and other fines due and
payable by it and which are claimed by any governmental authority to
be due and owing and adequate provision has been made for taxes
payable for any completed fiscal period for which tax returns are
not yet required to be filed, (ii) there are no agreements, waivers
or other arrangements providing for an extension of time with
respect to the filing of any tax return or payment of any tax,
governmental charge or deficiency by the Corporation, (iii) to the
knowledge of the Corporation, there are no actions, suits,
proceedings, investigations or claims threatened or pending against
the Corporation in respect of taxes, governmental charges or
assessments and (iv) there are no matters under discussion with any
governmental authority relating to taxes, governmental charges or
assessments asserted by any such authority;
(x) The Corporation is not aware of any claim of infringement or breach
by the Corporation of any patent, industrial or intellectual
property rights of any other person, nor has the Corporation
received any notice nor is the Corporation aware that the use of the
business names, trademarks, service marks and other patent,
industrial or intellectual property of the Corporation infringes
upon or breaches any industrial or intellectual property rights of
any other person, except the following:
(i) a complaint was received in or about 1996 from the owner of
the "Cryovac" trademark, alleging infringement by the
Corporation and demanding that the Corporation cease and
desist the use of "Cryopak". The Corporation responded and
denied the infringement. No infringement action has been
instituted. In or about 1998, the same party opposed the
registration of the "Cryopak" trademark in the European
community (application number 141234). The Corporation won in
the first instance, but this was appealed by the other party.
The appeal is still in process;
(y) The Corporation owns or possesses adequate enforceable rights to use
all patents, trademarks, service marks, copyrights and trade secrets
and other industrial and intellectual property right used or
proposed to be used in the conduct of its business and material
thereto including, without limiting the generality of the foregoing,
U.S. Patent No. 4,931,333 entitled THERMAL PACKAGING ASSEMBLY and
Canadian Patent No. 1,291,073 entitled THERMAL PACKAGING ASSEMBLY;
and
(z) Each of the most recently filed Form 20F, Annual Information Form,
quarterly and annual financial statements and other information
filed in accordance with Canadian and U.S. securities laws (the
"Securities Law Reports"), were, on the dates of their respective
filings, in compliance in all material respects with the
requirements of their respective report forms and the Canadian and
U.S. securities laws and did not, on the date of filing, contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the
- 14 -
circumstances under which they were made, not misleading. There have
not been any material adverse changes to the assets, liabilities,
financial position or business of the Corporation or any of its
material subsidiaries since the filing of the Securities Law Reports
and no transaction has been entered into by the Corporation or any
material subsidiary which is or may be material to the Corporation
on a consolidated basis.
Covenants of the Corporation
12. The Corporation hereby covenants with the Purchaser that:
(a) it will take all corporate action required to issue to the
Purchaser, upon the due exercise of any Warrants, the Common Shares
underlying such Warrants, as fully paid and non-assessable Common
Shares in the capital of the Corporation; and
(b) it will use its reasonable efforts to maintain its status as a
"reporting issuer" under the Securities Act (British Columbia) and
the Securities Act (Alberta) for a period of two years from the date
of closing;
Resale Restrictions
13. The Purchaser acknowledges that any resale of the Units, and the Common
Shares, Warrants and Warrant Shares underlying the Units, will be subject
to resale restrictions contained in the policy of the TSX and in the
securities legislation applicable to the Purchaser.
General
14. The sale of the Units will be completed at the offices of XxXxxxxx
Xxxxxxxx LLP, in Vancouver, British Columbia, at the Closing Time on the
Closing Date, or at such other place or time as the Purchaser and the
Corporation may agree.
15. This Agreement shall be binding upon and enure to the benefit of the
Purchaser and the Purchaser's executors, personal representatives,
successors and assigns and the Corporation and its successors and assigns.
16. The representations, warranties and covenants of the Corporation contained
herein shall survive Closing.
17. The Corporation and the Purchaser shall be entitled to rely on delivery of
a facsimile copy of this Agreement, and acceptance by the Corporation of
such facsimile copy shall be legally effective to create a valid and
binding agreement between the Purchaser and the Corporation in accordance
with the terms hereof.
18. All notices which are permitted or required to be given hereunder shall be
validly given if actually delivered or if transmitted by electronic means
to the address of the Corporation hereinafter set forth and to the address
of the Purchaser as set forth on the execution page of this Agreement
(until notice of a change is given in accordance with the foregoing) and
shall be effective on the date of such delivery or transmission.
- 15 -
Notice to the Corporation shall be addressed to:
Cryopak Industries Inc.
0000 Xxxxxxx Xxx
Xxxxx, X.X.
X0X 0X0
Attention: Xxxxxx Xxxxxx
Chief Financial Officer and Corporate Secretary
Telecopier No.: (000) 000-0000
19. Each party shall from time to time do such further acts and execute and
deliver such further documents as shall be reasonably required in order to
fully perform and carry out the terms of this Agreement.
20. The headings of the sections of this Agreement are inserted for
convenience of reference only and shall not affect the meaning or
construction hereof.
21. The terms of this Agreement express and constitute the entire agreement
between the parties hereto as to the subject matter hereof, and no implied
term of any kind shall arise by reason of anything contained in this
Agreement.
22. Time is of the essence of this Agreement.
23. This Agreement shall be governed by and construed in accordance with the
laws of the Province of British Columbia and the laws of Canada applicable
therein.
24. In this Agreement, words importing the singular include the plural and
vice versa and words importing persons include firms or corporations.
ACCEPTANCE
Cryopak Industries Inc. hereby accepts the above subscription as of this 8th day
of December, 2003.
CRYOPAK INDUSTRIES INC.
Per: /s/ Xxxxxx Xxxxxx
------------------------------
ANNEX 1
To be Completed by Accredited Investors(1)
The Purchaser and any beneficial subscriber is an "accredited investor", as such
term is defined in the Multilateral Instrument 45-103 - Capital Raising
Exemptions ("MI 45-103"), as at the time of Closing, the Purchaser and any
beneficial subscriber, as applicable, falls within one or more of the following
categories (Please check one or more, as applicable):
|_| (a) a bank listed in Schedule I or II of the Bank Act (Canada), a loan
corporation, trust company, insurance company, treasury branch,
credit union or caise populaire, that, in each case, is authorized
to carry on business in Canada as a province or territory of Canada,
the Confederation des caisses populaires et d'economie Xxxxxxxxxx du
Quebec, or an authorized foreign bank listed in Schedule III of the
Bank Act (Canada);
|_| (b) the Business Development Bank of Canada incorporated under the
Business Development Bank of Canada Act (Canada);
|_| (c) an association under the Cooperative Credit Association Act (Canada)
located in Canada or a central cooperative credit society for which
an order has been made under subsection 473(1) of that Act;
|_| (d) a "subsidiary" (within the meaning of that expression as used in
applicable securities laws) of any person or company referred to in
paragraphs (a) to (c), if the person or company owns all of the
voting securities of the subsidiary, except the voting securities
required by law to be owned by directors of that subsidiary;
|_| (e) a person or company registered under the securities legislation,
regulations and rules of a province or territory of Canada as an
adviser or dealer, other than a limited market dealer registered
under the Securities Act (Ontario) or the Securities Act
(Newfoundland and Labrador);
|_| (f) an individual registered or formerly registered under the securities
legislation, regulations and rules of a province or territory of
Canada as a representative of a person or company referred to in
paragraph (e);
|_| (g) the government of Canada or a province or territory of Canada, or
any crown corporation or agency of the government of Canada or a
province or territory of Canada;
|_| (h) a municipality, public board or commission in Canada;
|_| (i) any national, federal, state, provincial, territorial or municipal
government of or in any country other than Canada (or a political
subdivision thereof), or any agency of that government;
|_| (j) a pension fund that is regulated by either the Office of the
Superintendent of Financial Institutions (Canada) or a provincial
pension commission or similar regulatory authority of a province or
territory of Canada;
|_| (k) a registered charity under the Income Tax Act (Canada) that, in
regard to the trade, has obtained advice from an "eligibility
adviser" (as defined in MI 45-103) or other adviser registered to
provide advice on the securities being traded;
----------
(1) Ontario accredited investors should also complete Annex 2
- 2 -
|_| (l) an individual who, either alone or jointly with a spouse,
beneficially owns, directly or indirectly, cash and securities
("financial assets") having an aggregate realizable value that
before taxes, but net of any liabilities incurred or accrued for the
purpose of financing the acquisition or ownership of financial
assets and liabilities that are secured by financial assets, exceeds
$1,000,000;
|_| (m) an individual whose net income before taxes exceeded $200,000 in
each of the two most recent years or whose net income before taxes
combined with that of a spouse exceeded $300,000 in each of the two
most recent years and who, in either case, reasonably expects to
exceed that net income level in the current year;
|X| (n) a person or company, other than a "mutual fund" or "non-redeemable
investment fund" (within the meaning of those expressions as used in
applicable securities laws), that had net assets of at least
$5,000,000 as shown on its most recently prepared financial
statements;
|_| (o) a mutual fund or non-redeemable investment fund that, in the "local
jurisdiction" (as defined in National Instrument 14-101 -
Definitions), distributes its securities only to persons or
companies that are "accredited investors";
|_| (p) a mutual fund or non-redeemable investment fund that, in the local
jurisdiction, distributes its securities under a prospectus for
which the applicable securities regulator has issued a receipt;
|_| (q) a trust company or trust corporation registered or authorized to
carry on business under the Trust and Loan Companies Act (Canada) or
under comparable legislation of a province or territory of Canada or
a country other than Canada, trading as a trustee or agent on behalf
of a "fully managed" account (within the meaning of that expression
as used in applicable securities laws);
|_| (r) a person or company trading as agent on behalf of a fully managed
account if that person or company is registered or authorized to
carry on business under the securities legislation of a province or
territory of Canada or a country other than Canada as a portfolio
manager or under an equivalent category of adviser or is exempt from
registration as a portfolio manager or the equivalent category of
adviser;
|_| (s) an entity organized in a country other than Canada (or a political
subdivision thereof) that is analogous to any of the entities
referred to in paragraphs (a) through (e) and paragraph (j) in form
and function; or
|_| (t) a person or company in respect of which all of the owners of
interests, direct or indirect, legal or beneficial, except the
voting securities required by law to be owned by directors, are
persons or companies that are "accredited investors" (as defined in
MI 45-103);
ANNEX 2
To be Completed by Ontario Accredited Investors
The Purchaser is a resident of or otherwise subject to the securities
legislation of Ontario and is an "accredited investor", as such term is defined
in Ontario Securities Commission Rule 45-501 - Exempt Distribution ("OSC Rule
45-501"), as at the time of Closing, the Purchaser falls within one or more of
the following categories (Please check one or more, as applicable):
|_| (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 (Ontario) or under the Trust and Loan
Companies Act (Canada), or under comparable legislation in any
province or territory of Canada;
|_| (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 company licensed to do business as an insurance company in any
province or territory of Canada;
|_| (f) a subsidiary of any company referred to in paragraph (a), (b), (c),
(d) or (e), where the company owns all of the voting shares of the
subsidiary;
|_| (g) a person or company registered under the Securities Act (Ontario) or
securities legislation in another province or territory of Canada as
an adviser or dealer, other than a limited market dealer;
|_| (h) the government of Canada or of any province or territory of Canada,
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 country, or political subdivision of any
country, other than Canada, 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, cash, securities or any contract of insurance or
deposit or evidence thereof that is not a security for the purposes
of the Securities Act (Ontario) (collectively, "financial assets")
having an aggregate realizable value that, before taxes but net of
any liabilities incurred or assumed for the purposes of financing
the acquisition or ownership of financial assets and liabilities
that are secured by financial assets, 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 Securities
Act (Ontario) or securities legislation in another province or
territory of Canada as a representative of a person or company
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 (within the meaning of that expression as used in OSC
Rule 45-501);
|_| (q) a spouse, parent, grandparent or child of an officer, director or
promoter of the issuer;
|_| (r) a person or company that, in relation to the issuer is an affiliated
entity or a person or company referred to in clause (c) of the
definition of distribution in subsection 1(1) of the Securities Act
(Ontario);
|_| (s) 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;
|_| (t) a person or company that is recognized by the Ontario Securities
Commission as an accredited investor;
|_| (u) a mutual fund or non-redeemable investment fund that, in Ontario,
distributes its securities only to persons or companies that are
accredited investors;
|_| (v) 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;
|_| (w) an account that is fully managed by a trust corporation registered
under the Loan and Trust Corporations Act (Ontario);
|_| (x) 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; and
|_| (y) 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.
ANNEX 3
To be completed by "friends and family" subscribers (British Columbia and
Alberta only)
TO: Cryopak Industries Inc.
CERTIFICATE
In connection with the purchase by the undersigned purchaser (the "Purchaser")
of Units (the "Purchased Securities") of Cryopak Industries Inc. (the
"Corporation"), the Purchaser hereby represents, warrants, covenants and
certifies that:
1. the Purchaser is resident in the Province of British Columbia or Alberta
or is subject to the laws of the Province of British Columbia or Alberta;
2. the Purchaser is purchasing the Purchased Securities as principal for its
own account;
3. the Purchaser is (please initial the appropriate line):
(a) [ ] a director, senior officer or "control person" (within the
meaning of that expression as used in applicable securities laws) of
the Corporation, or of an "affiliate" (within the meaning of that
expression as used in applicable securities laws) of the
Corporation;
(b) [ ] a spouse, parent, grandparent, brother, sister or child of
__________________________________, who is a director, senior
officer or control person of the Corporation, or of an affiliate of
the Corporation;
(c) [ ] a parent, grandparent, brother, sister or child of
__________________________________, who is the spouse of a director,
senior officer or control person of the Corporation , or of an
affiliate of the Corporation;
(d) [ ] a close personal friend (by reason of the fact that you
have directly known such individual for a sufficient period of time
and in a sufficiently close relationship to be in a position to
assess the capabilities and the trustworthiness of such individual)
of __________________________________, who is a director, senior
officer or control person of the Corporation , or of an affiliate of
the Corporation;
(e) [ ] a close business associate (by reason of the fact that you
have sufficient prior direct business dealings with such individual
to be in a position to assess the capabilities and the
trustworthiness of such individual) of ____________________________,
who is a director, senior officer or control person of the
Corporation , or of an affiliate of the Corporation;
(f) [ ] a "founder" (within the meaning of that expression as used
in applicable securities laws) or a spouse, parent, grandparent,
brother, sister, child, closer personal
- 2 -
friend or close business associate of _____________________________,
who is a founder of the Corporation;
(g) [ ] a parent, grandparent, brother, sister or child of the
spouse of __________________________________, who is a founder of
the Corporation;
(h) [ ] a person or company of which a majority of the voting
securities are beneficially owned by, or a majority of the directors
are, persons or companies described in subsections 3(a) to 3(g)
above; or
(i) [ ] a trust or estate of which all of the beneficiaries or a
majority of the trustees are persons or companies described in
subsections 3(a) to 3(g) above.
4. the above representations, warranties and covenants will be true and
correct both as of the execution of this certificate and as of the closing
time of the purchase and sale of the Purchased Securities and will survive
the completion of the issue of the Purchased Securities; and
5. the foregoing representations, warranties and covenants are made by the
undersigned with the intent that they be relied upon in determining the
suitability of the undersigned as a purchaser of the Purchased Securities
and the undersigned undertakes to immediately notify the Corporation of
any change in any statement or other information relation to the Purchaser
set forth herein which takes place prior to the closing time of the
purchase and sale of the Purchased Securities.
Dated:_____________________________, 2003.
_________________________________________
Print name of Purchaser
By: ____________________________________
Signature
___________________________________
Title
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: Esarbee Investments Limited
(b) Complete Address: 8th Floor, 0000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxx X0X 0X0
(c) Jurisdiction of Incorporation or Creation: CBCA
2. (a) Is the Placee purchasing securities as a portfolio manager (Yes/No)?
NO
(b) Is the Placee carrying on business as a portfolio manager outside of
Canada (Yes/No)? 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
--------------------------------------------------------------------------
Xxxxxxx Xxxxxx Xxxxxxxx Trust Montreal Quebec Canada
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
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 Montreal on 10th November 2003
Esarbee Investments Limited
------------------------------------------------
(Name of Purchaser - please print)
/s/ Xxxxxx Xxxxxxx
------------------------------------------------
(Authorized Signature)
Vice President
------------------------------------------------
(Official Capacity - please print)
Xxxxxx Xxxxxxx
------------------------------------------------
(please print name of individual whose signature
appears above)
THIS IS NOT A PUBLIC DOCUMENT
