(a) | Accredited Investor means an accredited investor as defined in Rule 501(a) of Regulation D; | ||
(b) | Administration Fee means the fee payable to the Agent by the Issuer in connection with the Agents services in connection with the administration and co-ordination of the Private Placement; | ||
(c) | Agents Fee means the fee which is set out in this Agreement and which is payable by the Issuer to the Agent in consideration of the services performed by the Agent under this Agreement; | ||
(d) | Agents Warrants means the non-transferable share purchase warrants of the Issuer which will be issued as part of the Agents Fee and the Administration Fee and which have the terms provided in this Agreement and the certificates representing such share purchase warrants; |
(e) | Agents Warrant Shares means the previously unissued Common Shares which will be issued upon the exercise of the Agents Warrants; | ||
(f) | Applicable Legislation means the securities acts in the Selling Provinces, together with all the regulations and rules made and promulgated thereunder and all administrative policy statements, instruments, blanket orders and rulings, notices and administrative directions issued by the Commissions; | ||
(g) | Closing means completion of the issuance of Shares pursuant to this Agreement and the Subscription Agreements; | ||
(h) | Closing Date means each day on which Shares are issued to the Purchasers; | ||
(i) | Commissions means the securities commission or equivalent regulatory authority in the Selling Provinces; | ||
(j) | Common Shares means the $.001 par value common stock of the Issuer, after giving effect to the consolidation referred to in Section 10.1(e) of this Agreement; | ||
(k) | Corporate Finance Shares means the previously unissued Common Shares which will be issued in consideration of the corporate finance and structuring services provided by the Agent; | ||
(l) | Directed Selling Efforts means directed selling efforts as defined in Rule 902(c) of Regulation S; | ||
(m) | Exemptions means the exemptions from the prospectus requirements of the Applicable Legislation and exemptions from registration under the U.S. Securities Act and as set forth the in the Subscription Agreement; | ||
(n) | Foreign Private Issuer means foreign private issuer as defined in Rule 405 promulgated under the U.S. Securities Act; | ||
(o) | Final Closing means the final Closing of the Private Placement; | ||
(p) | Financial Statements means the unaudited financial statements of the Issuer as at May 31, 2007 and the audited financial statements of the Issuer for the fiscal year ended December 31, 2006; | ||
(q) | First Closing means the first Closing of the Private Placement; | ||
(r) | Material Adverse Effect means any event, change or effect that, individually or when taken together with any related events, is or is reasonably likely to be materially adverse to the business, prospects, operations, condition (financial or otherwise) or liabilities of the Issuer or to the value or price of any Securities of the Issuer; | ||
(s) | Material Change has the meaning defined in the Applicable Legislation; |
- 3 -
(t) | Material Fact has the meaning defined in the Applicable Legislation; | ||
(u) | Private Placement means the offering of the Shares on the terms and conditions of this Agreement; | ||
(v) | Purchasers means the purchasers of the Shares pursuant to the Private Placement; | ||
(w) | Registrable Securities means the Shares and the Agents Warrant Shares until all Shares and Agents Warrant Shares (i) have been disposed of pursuant to the registration statement described in Section 14.1, (ii) have been sold under circumstances under which all of the applicable conditions of Rule 144 (or any similar provision then in force) under the U.S. Securities Act are met, (iii) have been otherwise transferred to persons who may trade such Securities without restriction under the U.S. Securities Act, and the Issuer has delivered a new certificate or other evidence of ownership for such Securities not bearing a restrictive legend or and/or (iv) in the opinion of counsel to the Issuer, may be sold without any time, volume or manner limitations pursuant to Rule 144(k) (or any similar provision then in effect) under the U.S. Securities Act. In the event of any merger, reorganization, consolidation, recapitalization or other change in corporate structure affecting the Shares and Agents Warrant Shares, such adjustment shall be deemed to be made in the definition of Registrable Security as is appropriate in order to prevent any dilution or enlargement of the registration rights granted pursuant to this Agreement; | ||
(x) | Regulation D means Regulation D promulgated under the U.S. Securities Act; | ||
(y) | Regulation S means Regulation S promulgated under the U.S. Securities Act; | ||
(z) | Regulatory Authorities means the Commissions; | ||
(aa) | Securities means the Shares, the Agents Warrants, the Agents Warrant Shares, the Corporate Finance Shares; | ||
(bb) | Selling Provinces means the Provinces of Canada; | ||
(cc) | Shares means the previously unissued Common Shares that are contemplated to be issued pursuant to this Agreement, other than the Agents Warrant Shares; | ||
(dd) | Subscription Agreement means the form of subscription agreement prepared in connection with this Private Placement and approved by the Issuer and the Agent; | ||
(ee) | Subsidiaries has the meaning ascribed thereto in Delaware General Corporate Law; | ||
(ff) | U.S. Affiliate has the meaning in paragraph 6.3(a); |
- 4 -
(gg) | U.S. Person means U.S. Person as defined in Rule 902(k) of Regulation S; and | ||
(hh) | U.S. Securities Act means the United States Securities Act of 1933, as amended. |
(a) | a cash payment equal to 7% of the gross proceeds received by the Issuer from the sale of the Shares on such Closing which will be paid in lawful U.S. currency; and |
(b) | that number of Agents Warrants which is equal to 10.0% of the number of Shares sold on such Closing. |
- 5 -
(a) | a resident in one of the Selling Provinces who meets the requirement of one of the Exemptions; | ||
(b) | an Accredited Investor (and the Agent and the U.S. Affiliate, after customary inquiry and investigation, have no reason to believe otherwise) if a U.S. Person or a person in the United States in accordance with Section 6 of this Agreement; or | ||
(c) | a resident of a jurisdiction outside of Canada and the United States for whom an Exemption is available for the sale of Shares to such person and in compliance with the securities laws applicable to such resident or jurisdiction. |
(a) | conduct all activities in connection with the Private Placement and the sale of the Shares, in compliance with this Agreement and all Applicable Legislation, Exchange Policies and applicable U.S. securities laws; and |
(b) | not advertise the proposed offering or sale of the Shares in printed public media, radio, television or telecommunications, including electronic display. |
- 6 -
(a) | it is not, as a result of the sale of the Securities will not be, and agrees to use its best efforts not to become, at any time prior to the expiration of three years after the Closing Day, an investment company as defined in the United States Investment Company Act of 1940, as amended; | ||
(b) | during the period in which the Shares are offered for sale or during the term of the Agents Warrants, neither it nor any of its affiliates, nor any person acting on their behalf (other than the Agent, its respective affiliates or any person acting on their behalf, in respect of which no representation is made) has made or will make any Directed Selling Efforts in the United States or has taken or will take any action in violation of Regulation M under the United States Securities Exchange Act of 1934, as amended, the 1934 Act), with respect to distributions under Regulation S, or has taken or will take any action that would cause the exemption from registration under Rule 506 of Regulation D or Regulation S to be unavailable for offers and sales of the Securities, pursuant to this Agreement; | ||
(c) | none of the Issuer, any of its affiliates or any person acting on its or their behalf (other than the Agent, the U.S. Affiliate, their respective affiliates or any person acting on their behalf, in respect of which no representation is made) has offered or will offer to sell, or has solicited or will solicit offers to buy, any of the Securities in the United States by means of any form of general solicitation or general advertising, which includes any advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees had been invited by general solicitation or general advertising, or in any manner involving a public offering within the meaning of Section 4(2) of the U.S. Securities Act; | ||
(d) | the Issuer has not, for a period of six months prior to the commencement of the offering of Securities, sold, offered for sale or solicited any offer to buy any of its securities and will not sell, offer for sale or solicit any offer to buy any of its securities, in a manner that would be integrated with the offer and sale of the Securities and would cause the exemption from registration set forth in Rule 506 of Regulation D to become unavailable with respect to the offer and sale of the Shares in the United States or to or for the benefit or account of U.S. Persons; | ||
(e) | neither the Issuer nor any of its predecessors or affiliates has been subject to any order, judgment, or decree of any court of competent jurisdiction temporarily, preliminarily or permanently enjoining such person for failure to comply with Rule 503 of Regulation D; | ||
(f) | the Issuer covenants and agrees with the Agent to execute or procure the execution of all documents and to use its commercially reasonable efforts to take or cause to be taken both before each Closing, all such steps as may be reasonably necessary or desirable to establish, to the reasonable satisfaction of counsel for the Agent and counsel for the Issuer, any and all legal requirements to enable the Agent to offer the Shares for sale in the United States under Rule 506 of |
- 7 -
Regulation D in accordance with this Agreement and the applicable exemption from registration under applicable state securities laws; and | |||
(g) | except with respect to offers or sales of Shares to Accredited Investors in reliance upon an exemption from registration under Rule 506 of Regulation D, neither the Issuer nor any of its affiliates, nor any person acting on their behalf (other than the Agent, the U.S. Affiliate, their respective affiliates or any person acting on their behalf, in respect of which no representation is made), has made in a transaction that would be integrated with the offer and sale of the Securities or will make: |
(i) | any offer to sell, or any solicitation of an offer to buy, any Shares to or for the benefit or account of a U.S. Person, or a person in the United States; or | ||
(ii) | any sale of Shares unless, at the time the buy order was or will have been originated, the purchaser is: |
(A) | outside the United States; or | ||
(B) | the Issuer, its affiliates, and any person acting on their behalf reasonably believe that the purchaser is outside the United States. |
(a) | any offer to sell, or any solicitation of an offer to buy, Shares to any U.S. Person, to any person purchasing for the benefit or account of a U.S. Person, or any person in the United States; | ||
(b) | any sale of Securities unless, at the time the buy order was or will have been originated the Purchaser is: |
(i) | outside the United States; or | ||
(ii) | the Agent, its affiliates and any person acting on their behalf reasonably believe that the Subscriber is outside the United States; nor |
(c) | any Directed Selling Efforts in the United States with respect to the Securities. |
- 8 -
(a) | the Agent will offer the Shares in the United States only through a broker dealer registered pursuant to Section 15(b) of the 1934 Act and in good standing with the National Association of Securities Dealers Inc. (U.S. Affiliate), solely to Accredited Investors, and only in states of the United States where such broker-dealer is registered, or otherwise exempt from registration; | ||
(b) | no form of general solicitation or general advertising (as those terms are used in Regulation D) or any manner involving a public offering within the meaning of Section 4(2) of the U.S. Securities Act has been or will be used by the Agent, the U.S. Affiliate, their affiliates or anyone acting on their behalf, including advertisements, articles, notices or other communications published in any newspaper, magazine, or similar media or broadcast over radio or television, or any seminar or meeting whose attendees had been invited by general solicitation or general advertising, in connection with the offer or sale of the Shares to U.S. Persons; | ||
(c) | any offer, sale or solicitation of an offer to buy the Shares that has been made or will be made to U.S. Persons was or will be made only to Accredited Investors, and in transactions that are exempt from registration under applicable state securities laws and require no filings or actions pre-offer or pre-sale except as otherwise agreed by the Issuer; | ||
(d) | it has not entered and will not enter into any contractual arrangement with respect to the distribution of the Securities, except with its affiliates, any selling group members or with the prior written consent of the Issuer and it shall use its commercially reasonable efforts to ensure the each selling group member complies with the applicable provisions of this Section 6; | ||
(e) | all offers of Shares in the United States or to or for the benefit or account of a U.S. Person have been and will be made through a U.S. Affiliate and all sales of the Shares in the United States or to or for the benefit or account of a U.S. Person will be made by the Issuer to Accredited Investors designated by the U.S. Affiliate or by the Agent acting through a U.S. Affiliate; | ||
(f) | immediately prior to soliciting any Purchaser that is in the United States or for the benefit or account of a U.S. Person, the Agent, the U.S. Affiliate, their respective affiliates, and any person acting on their behalf, had or will have had, as the case may be, reasonable grounds to believe and did or will, as the case may be, believe that each such Purchaser was or is an Accredited Investor, and at the time of completion of each sale to or for the benefit or account of a U.S. Person or a person in the United States, the Agent, the U.S. Affiliate, their respective affiliates, and any person acting on their behalf will have reasonable grounds to believe and will believe, that each Purchaser designated by such Agent or the U.S. Affiliate to purchase Shares from the Issuer is an Accredited Investor; | ||
(g) | on each Closing, the Agent together with the U.S. Affiliate, will provide a certificate, substantially in the form of Appendix I, relating to the manner of the |
- 9 -
offer and sale of the Shares in the United States and to or for the benefit or account of U.S. Persons, or a written confirmation that it did not sell any Shares in the United States or to or for the benefit or account of U.S. Persons or arrange for any purchasers that are in the United States or are U.S. Persons; |
(h) | neither the Agent, the U.S. Affiliate, their respective affiliates, or any person acting on their behalf, has taken or will take, directly or indirectly, any action in violation of Regulation M under the 1934 Act in connection with the offer and sale of the Securities; | ||
(i) | prior to completion of any sale of Shares to a person in the United States or to a U.S. Person, the Agent shall cause each such Purchaser of Shares to execute an agreement in the form agreed upon by the Agent and the Issuer; | ||
(j) | the Agent shall give the Issuer reasonable notice of the U.S. jurisdictions in which it proposes to offer and sell the Shares, so as to assist the Issuer in satisfying its obligations under Paragraph 6.1(f) and to permit the Issuer to timely submit any and all filings required of the U.S. Securities Act and applicable state laws; | ||
(k) | the representations and warranties and covenants of the Agent contained in this Section 6 shall be true and correct as of the Closing, with the same force and effect as if then made by the Agent. |
(a) | file with the Commissions any report required to be filed by the Applicable Legislation in connection with the Private Placement, in the required form; and |
(b) | provide the Agents solicitor with copies of the report or reports. |
- 10 -
(a) | Certificates means the certificates representing the Shares, Agents Warrants and Corporate Finance Shares to be issued on a Closing in the names and denominations reasonably requested by the Agent or the Purchasers, as the case may be; and |
(b) | Proceeds means the gross proceeds of the sale of Shares on a Closing, less: |
(i) | any portion of the Agents Fee which is payable in cash; | ||
(ii) | the reasonable expenses of the Agent in connection with the Private Placement which have not been paid by the Issuer; and | ||
(iii) | on the First Closing, the Administration Fee; | ||
(iv) | any amount paid directly to the Issuer by purchasers in connection with the Private Placement. |
(a) | the Issuer will have delivered to the Agent and its solicitor a favourable opinion of the Issuers US and Canadian solicitors dated as of the date of such Closing, in a form reasonably acceptable to the Agent and its solicitor as to all legal matters reasonably requested by the Agent relating to the Issuer and the creation, issuance and sale of the Securities; |
(b) | the Issuer will have delivered to the Agent and its solicitor such certificates of its officers other documents relating to the Private Placement or the affairs of the Issuer as the Agent or its solicitor may reasonably request; |
- 11 -
(c) | each representation and warranty of the Issuer which is contained in this Agreement continues to be true, and the Issuer has performed or complied with all of its covenants, agreements and obligations under this Agreement; | ||
(d) | the completion of due diligence satisfactory to the Agent, on the Issuer, the Issuers management, business, assets and technology; and | ||
(e) | the Issuer has completed a consolidation of its common shares on a 7 old for 1 new basis; |
(a) | receipt of all required regulatory approval for or acceptance of the Private Placement; and |
(b) | the removal or partial revocation of any cease trading order or trading suspension made by any competent authority to the extent necessary to complete the Private Placement. |
(a) | an adverse Material Change, or an adverse change in a Material Fact relating to any of the Securities, occurs or is announced by the Issuer; | ||
(b) | there is an event, accident, governmental law or regulation or other occurrence of any nature which, in the opinion of the Agent, acting reasonably, seriously affects or will seriously affect the financial markets, or the business of the Issuer or its subsidiaries or the ability of the Agent to perform its obligations under this Agreement, or a Purchasers decision to purchase the Shares; | ||
(c) | following a consideration of the history, business, products, property or affairs of the Issuer or its principals and promoters, or of the state of the financial markets in general, or the state of the market for the Issuers securities in particular, the Agent determines, in its sole discretion, that it is not in the interest of the Purchasers to complete the purchase and sale of the Shares; | ||
(d) | the Securities cannot, in the opinion of the Agent, acting reasonably, be marketed due to the state of the financial markets, or the market for the Shares in particular; | ||
(e) | an enquiry or investigation (whether formal or informal) in relation to the Issuer, or the Issuers directors, officers or promoters, is commenced or threatened by an officer or official of any competent authority; |
- 12 -
(f) | any order to cease, halt or suspend trading (including an order prohibiting communications with persons in order to obtain expressions of interest) in the securities of the Issuer prohibiting or restricting the Private Placement is made by a competent regulatory authority and that order is still in effect; | ||
(g) | the Issuer is in breach of any material term of this Agreement; or | ||
(h) | any of the representations or warranties made by the Issuer in this Agreement is false or has become false. |
(a) | the Issuer has no Subsidiaries; | ||
(b) | the Issuer is a valid and subsisting corporation duly incorporated and in good standing under the laws of the jurisdiction in which it is incorporated, continued or amalgamated; | ||
(c) | the Issuer is duly registered and licenced to carry on business in the jurisdictions in which it carries on business or owns property where so required by the laws of that jurisdiction and are not otherwise precluded from carrying on business or owning property in such jurisdictions by any other commitment, agreement or document, except to the extent that the failure to so register or become licensed would not have a Material Adverse Effect; | ||
(d) | the Issuer has full corporate power and authority to carry on its business as now carried on by it and to undertake the Private Placement and this Agreement has been, or will be by the First Closing, duly authorized by all necessary corporate action on the part of the Issuer; | ||
(e) | all of the material transactions of the Issuer have been promptly and properly recorded or filed in its books or records and its minute books or records contain all records of the meetings and proceedings of its directors, shareholders, and other committees, if any, since conception; | ||
(f) | as of the date hereof, the authorized capital of the Issuer consists of (a) 400,000,000 shares of Common Stock, $.001 par value per share, of which 21,658,507 shares are issued and outstanding and (b) 6,745,681 shares of Preferred Stock, $.001 par value per share, of which (i) 725,000 shares are designated as Series A Redeemable Preferred Stock, of which zero (0) shares are issued and outstanding, (ii) 1,020,681 shares are designated as Series B Convertible Preferred Stock, of which zero (0) shares are issued and outstanding, and (iii) 500,000 shares are designated as Series C 6% Convertible Preferred Stock, of which 168,500 shares are issued and outstanding and, except as set out in Schedule A hereto, no person has any right, agreement or option, present or |
- 13 -
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 subsidiary or any other security convertible into or exchangeable for any such shares, or to require the Issuer or its subsidiary to purchase, redeem or otherwise acquire any of the issued and outstanding shares in its capital; | |||
(g) | the Issuer will reserve or set aside sufficient shares in its treasury to issue the Shares, the Agents Warrant Shares and the Corporate Finance Shares and all such shares will be duly and validly issued as fully paid and non-assessable shares in the capital of the Issuer and upon due exercise of the Agents Warrants, the Agents Warrant Shares will be duly and validly issued as fully paid and non-assessable shares in the capital of the Issuer; | ||
(h) | except for such securities, liens and encumbrances reflected in the Financial Statements and in the due diligence materials provided to the Agent, the Issuer is the legal and beneficial owner of and has good and marketable title to the properties, business and assets or the interests in the properties, business or assets referred to in any materials provided to the Agent, all agreements by which the Issuer holds an interest in a property, business or assets are in good standing according to their terms and the properties are in good standing under the applicable laws of the jurisdictions in which they are situated and all filings and commitments required to maintain the properties or assets in good standing have been properly recorded and filed in a timely manner with the appropriate regulatory body , except to the extent that the failure to do any of the foregoing would not have a Material Adverse Effect; | ||
(i) | all financial, marketing, sales and operational information provided to the Agent in writing do not contain any misrepresentations (as such term is defined in the Applicable Legislation) and are accurate in all material respects; | ||
(j) | the Subscription Agreement and all other written representations made by the Issuer to a Purchaser or potential Purchaser in connection with the Private Placement were accurate in all material respects and did not omit any material fact, the omission of which will make such representations materially misleading or incorrect; | ||
(k) | the Financial Statements have been prepared in accordance with U.S. generally accepted accounting principles, present fairly, in all material respects, the financial position and all material liabilities (accrued, absolute, contingent or otherwise) of the Issuer as of the date thereof, and there have been no adverse material changes in the financial position of the Issuer since the date thereof and the business of the Issuer has been carried on in the usual and ordinary course consistent with past practice since the date thereof; | ||
(l) | the auditors of the Issuer who audited the Financial Statements of the Issuer for the most recent financial year-end and who provided their audit report thereon are |
- 14 -
independent public accountants and there has never been any material disagreement with the present auditors of the Issuer; |
(m) | 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 Applicable Legislation and the U.S. Securities Act in relation to the issue of its securities and in all matters relating to the Private Placement; | ||
(n) | the Issuer is in compliance with all applicable laws, regulations and statutes (including all environmental laws and regulations) in the jurisdictions in which it carries on business and which may materially affect the Issuer, has not received a notice of non-compliance, nor know of, nor have reasonable grounds to know of, any facts that could give rise to a notice of non-compliance with any such laws, regulations and statutes, and is not aware of any pending change or contemplated change to any applicable law or regulation or governmental position that would materially affect the business of the Issuer or the business or legal environment under which the Issuer operates; | ||
(o) | there is not presently any Material Change or change in any Material Fact relating to the Issuer which has not been fully disclosed to the Agent ; | ||
(p) | the issue and sale of the Securities by the Issuer and the Agent does not and will not conflict with, and does not and will not result in a breach of, or constitute a default under (A) any statute, rule or regulation applicable to the Issuer including, without limitation, the Applicable Legislation and the U.S. Securities Act; (B) the constituting documents, by-laws or resolutions of the Issuer which are in effect at the date hereof; (C) any agreement, debt instrument, mortgage, note, indenture, instrument, lease or other document to which the Issuer is a party or by which it is bound; or (D) any judgment, decree or order binding the Issuer or the property or assets of the Issuer; | ||
(q) | 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 Issuers knowledge no such actions, suits or proceedings are contemplated or have been threatened; | ||
(r) | there are no judgments against the Issuer which are unsatisfied, nor are there any consent decrees or injunctions to which the Issuer is subject; | ||
(s) | no order prohibiting the sale of the securities of the Issuer 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; | ||
(t) | the Issuer has filed all federal, state, local and foreign tax returns which are required to be filed, or has requested extensions thereof, and has paid all taxes required to be paid by it and any other assessment, fine or penalty levied against |
- 15 -
it, or any amounts due and payable to any governmental authority, to the extent that any of the foregoing is due and payable; |
(u) | 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 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 Issuers 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; | ||
(v) | the Issuer owns or possesses adequate rights to use all material patents, trademarks, service marks, trade names, copyrights, trade secrets, information, proprietary rights and other intellectual property necessary for the business of the Issuer now conducted and proposed to be conducted, without any conflict with or infringement of the rights of others.; | ||
(w) | the Issuer has received no communication alleging that the Issuer has violated or, by conducting its business as proposed, would violate any of the patents, trademarks, service marks, trade names, copyrights or trade secrets or other proprietary rights of any other person or entity; | ||
(x) | except as set out in Schedule B, the Issuer does not have any loans or other indebtedness outstanding which has been made to any of its shareholders, officers, directors or employees, past or present, or any person not dealing at arms length (as such term is used in the Income Tax Act (Canada); | ||
(y) | in respect of both the hardware equipment and software components of the information management and computers systems (collectively, the Systems) of the Issuer: |
(i) | the Systems have been maintained and supported in accordance with prudent industry practices; | ||
(ii) | there is an appropriate disaster recovery plan in place in respect of such Systems; | ||
(iii) | appropriate controls are in place to control access and security to such Systems and there are appropriate firewalls and virus protection programs in place; | ||
(iv) | all software being used is supported by valid licences and all licences in respect of such software are in good standing in all material respects and not in default in any respect; and | ||
(v) | all related data, content and programs are backed-up regularly with copies stored safely and securely off-site; |
- 16 -
(z) | other than the Agent, no person, firm or corporation acting or purporting to act at the request of the Issuer is entitled to any brokerage, agency or finders fee in connection with the transactions described herein; and | ||
(aa) | the warranties and representations in this Section are true and correct and will remain so as of the Final Closing. |
(a) | it is a valid and subsisting corporation under the law of the jurisdiction in which it was incorporated; | ||
(b) | it is duly registered under the Applicable Legislation; | ||
(c) | it will not advertise the offering; | ||
(d) | it will market and sell the Shares in compliance with the Applicable Legislation, the U.S. Securities Act and this Agreement. |
- 17 -
- 18 -
(a) | the Agent and/or its Personnel have been negligent, have exercised bad faith, have contravened any applicable law or have committed wilful misconduct or any fraudulent act in the course of such performance; and |
(b) | the expenses, losses, claims, damages or liabilities, as to which indemnification is claimed, were directly caused by the negligence, bad faith, wilful misconduct or fraud referred to in 15.1(a). |
- 19 -
- 20 -
- 21 -
ICUITI CORPORATION |
||||
Per: | /s/ Paul J. Travers | |||
Authorized Signatory | ||||
Per: | /s/ Grant Russell | |||
Authorized Signatory | ||||
- 22 -
} | CANACCORD CAPITAL CORPORATION | |||
Per: | ||||
Authorized Signatory | ||||
c/s |
||||
Per: | ||||
Authorized Signatory | ||||
I/We have the authority to bind the corporation |
- 23 -
(a) | the Shares have been offered and sold in the United States or to or for the benefit or account of U.S. Persons only through the U.S. Affiliate, which was on the dates of such offers and sales, and is on the date hereof, a duly registered broker or dealer pursuant to Section 15(b) of the 1934 Act and under the securities laws of each state in which such offers and sales were made (unless exempted from the respective states broker-dealer registration requirements) and was and is a member in good standing with the National Association of Securities Dealers, Inc. | ||
(b) | all offers and sales of Shares in the United States or to or for the benefit or account of U.S. Persons have been effected through the U.S. Affiliate in accordance with all applicable federal and states laws and regulations governing the registration and conduct of securities brokers and dealers; | ||
(c) | each offeree that was in the United States or for the benefit or account of a U.S. Person was provided with a copy of the Subscription Agreement relating to the offering of the Shares; | ||
(d) | immediately prior to transmitting the Subscription Agreement to such offerees, we had reasonable grounds to believe and did believe that each such offeree was an Accredited Investor and, on the date hereof, we have reasonable grounds to believe and do believe that each person in the United States and each U.S. Person that we have arranged to purchase Shares from the Issuer is an Accredited Investor; | ||
(e) | no form of general solicitation or general advertising (as those terms are used in Regulation D) was used by us, including any advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees had been invited by general solicitation or general advertising, in connection with the offer or sale of the Shares in the United States; | ||
(f) | the offering of the Securities has been conducted in accordance with the terms of the Agency Agreement; and | ||
(g) | prior to any sale of Shares in the United States or to or for the benefit or account of a U.S. Person we caused purchaser to execute a Subscription Agreement, including the Certification of U.S. Purchaser contained therein. |
- 24 -
CANACCORD CAPITAL CORPORATION |
||||
By: | ||||
Name: | ||||
Title: | ||||
[US AFFILIATE] |
||||
By: | ||||
Name: | ||||
Title: | ||||
Stock Options granted and outstanding |
1,802,283 | |||
Warrants outstanding |
432,647 | |||
Series C Preferred convertible into Common |
722,143 | |||
Debt convertible in to Common |
429,177 | |||
Total dilution |
3,392,250 |