Date of Report (Date of earliest event reported):
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July 6, 2017
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Nevada
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001-33125
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91-1766677
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(State or other jurisdiction of incorporation)
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(Commission
File Number)
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(I.R.S. Employer
Identification Number) |
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777 Dunsmuir Street, Suite 1610
Vancouver, B.C.
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V7Y 1K4
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(Address of principal executive offices)
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(Zip Code)
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Registrant’s telephone number, including area code:
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604-687-5800
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☐
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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☐
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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☐
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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☐
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Item 1.01 |
Entry Into a Material Definitive Agreement.
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Item 3.02 |
Unregistered Sales of Equity Securities.
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Item 9.01 |
Financial Statements and Exhibits.
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Exhibit No.
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Description
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10.1
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Form of Silver Bull Resources, Inc. Subscription Agreement
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10.2
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Form of Silver Bull Resources, Inc. Warrant Certificate (Investors)
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10.3
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Form of Silver Bull Resources, Inc. Warrant Certificate (Finders)
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Date: July 12, 2017
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SILVER BULL RESOURCES, INC.
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By:
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/s/ Sean Fallis
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Name:
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Sean Fallis
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Title:
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Chief Financial Officer
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Exhibit No.
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Description
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10.1
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Form of Silver Bull Resources, Inc. Subscription Agreement
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10.2
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Form of Silver Bull Resources, Inc. Warrant Certificate (Investors)
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10.3
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Form of Silver Bull Resources, Inc. Warrant Certificate (Finders)
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☐ |
All Purchaser information, as applicable, in the boxes on pages 1 to 3 hereof.
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☐ |
Unless other arrangements acceptable to the Company have been made, a wire transfer (which includes any wire transfer fee) as outlined in Section 9 hereof.
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☐ |
Appendix “I” – Investor Certificate and, if the Purchaser is an individual accredited investor, Appendix “I-A” – Risk Acknowledgment Form for Accredited Investors who are Individuals.
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Number of Units:
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(Name of Purchaser - please print)
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Aggregate
Subscription Price: CDN$
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By:
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Authorized Signature
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If the person signing this subscription is not purchasing, nor deemed by applicable securities regulation to be purchasing, as principal and is signing as agent for one or more principals, complete the following for each such principal (attach additional pages if required):
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(Official Capacity or Title – please print)
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Please print name of individual whose signature appears above if different than the name of the purchaser printed above.
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(Address of Residence)
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(Name of Principal) | |
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(Address of Residence) | |
(Purchaser’s E-mail) | ||
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(Principal’s E-mail) | |
(Purchaser’s Telephone No.) | (Principal’s Telephone No.) |
Registration Instructions:
As above ☐ or
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Delivery Instructions:
As above ☐ or
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Name [Please Print]
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Account reference, if applicable
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Account reference, if applicable
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Contact Name [Please Print]
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Address
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Address
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(Telephone Number)
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☐ | does not own , directly or indirectly, or exercise control or direction over, any Common Shares in the capital of the Company or securities convertible into Common Shares; or |
☐ | owns directly or indirectly, or exercises control or direction over, ________________ Common Shares and convertible securities entitling the Purchaser to acquire an additional ______________ Common Shares. |
(a) | a director or an officer of the Company; |
(b) | a director or an officer of a person that is itself an insider or subsidiary of the Company; |
(c) | a person that has beneficial ownership of, or control or direction over, directly or indirectly, or a combination of beneficial ownership of, and control or director over, directly or indirectly, securities of the Company carrying more than 10% of the voting rights attached to all of the Company’s outstanding securities, excluding, for the purpose of the calculation of the percentage held, any securities held by the person as underwriter in the course of a distribution; |
(d) | the Company itself if it holds any of its own securities; |
(e) | a person designated as an insider under an order made under section 3.2 of the Securities Act (British Columbia); or |
(e) | a person that is in a prescribed class of persons. |
2.1 |
The Purchaser acknowledges that the Company's obligation to sell the Units to the Purchaser is subject to, among other things, the conditions that:
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(a) |
the Purchaser duly completes, executes and returns to the Company this subscription, together with all documents required by applicable securities laws, the Toronto Stock Exchange (the “
Exchange
”) and the OTCQB for delivery to the offices of the lawyers for the Company on behalf of the Purchaser, by no later than 4:00 p.m. (Vancouver time) on June 12, 2017 to Silver Bull Resources, Inc., Suite 1610, 777 Dunsmuir Street, Vancouver, B.C. V7Y 1K4, Attention: Sean Fallis,
Facsimile: 604-563-6004, Email: sfallis@silverbullresources.com, including a duly completed and executed Appendix “I” – Investor Certificate;
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(b) |
payment has been made by the Purchaser of the Subscription Price as set out in Section 9 hereof;
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(c) |
the Company has accepted, in whole or in part, this Subscription Agreement, subject to Section 2.2;
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(d) |
all necessary regulatory, Exchange and OTCQB approvals have been obtained by the Company prior to the Closing (as defined below);
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(e) |
the sale of the Units is exempt from the requirement to file a prospectus or registration statement and the requirement to prepare and deliver an offering memorandum or similar document under any applicable statute relating to the sale of the Units or upon the issuance of such orders, consents or approvals as may be required to permit such sale without the requirement of filing a prospectus or registration statement or delivering an offering memorandum or similar document;
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(f) |
all covenants, agreements and conditions contained in this Subscription Agreement to be performed by the Purchaser have been performed or complied with in all material respects on or prior to the Closing; and
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(g) |
the representations, warranties and certifications of the Purchaser in this Subscription Agreement, including in any appendices hereto or other document delivered to the Company in connection with the Purchaser’s subscription, are true and correct when made and being true and correct at the Closing with the same force and effect as if they had been made on and as of the Closing.
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2.2 |
The Purchaser acknowledges and agrees that the Company reserves the right, in its absolute discretion, to reject this subscription for Units, in whole or in part, at any time prior to the time of Closing. If this subscription is rejected in whole, any cheques or other forms of payment delivered to the Company representing the subscription amount will be promptly returned to the Purchaser without interest or deduction. If this subscription is accepted only in part, a cheque representing any refund of the subscription amount for that portion of the subscription for the Units which is not accepted will be promptly delivered to the Purchaser without interest or deduction.
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(a) |
act as the Purchaser’s representative at the Closing and to swear, execute, file and record in the Purchaser’s name and on the Purchaser’s behalf any document necessary to accept delivery of the Units on the Closing Date;
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(b) |
approve any opinions, certificates or other documents addressed to the Purchaser;
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(c) |
waive, in whole or in part, any representations, warranties, covenants or conditions for the benefit of the Purchaser;
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(d) |
complete or correct any errors or omissions in this Subscription Agreement on behalf of the Purchaser; and
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(e) |
receive on the Purchaser’s behalf any certificates representing the Common Shares and Warrants comprising the Units subscribed for hereunder.
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4.1 |
The Purchaser confirms that it:
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(a) |
has such knowledge in financial and business affairs as to be capable of evaluating the merits and risks of its investment in the Units;
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(b) |
is capable of assessing the merits and risks (including the potential loss of its entire investment) of the proposed investment in the Units;
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(c) |
is aware of the characteristics of the Units and understands the risks relating to an investment therein; and
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(d) |
is able to bear the economic risk of loss of its investment in the Units.
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4.2 |
The Purchaser is resident in the jurisdiction set forth in the “Address of Residence” set out on page 1 of this Subscription Agreement and either:
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(i) |
the Purchaser is not a “U.S. Person” (as that term is defined in Rule 902(k) of Regulation S under the United States Securities Act of 1933, as amended (the “
1933 Act
”)) or a person in the United States of America, its territories or possessions, any State of the United States or District of Columbia (the “
United States
”), and is not purchasing the Units for the account of or benefit of a U.S. Person or a person in the United States;
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(ii) |
the Purchaser was not offered the Units in the United States;
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(iii) |
the buy order for the Purchaser’s Units was not originated, and the Purchaser did not execute or deliver this Subscription Agreement, in the United States;
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(iv) |
the Purchaser has no intention to distribute either directly or indirectly any of the Units in the United States and will not offer, sell or otherwise transfer, directly or indirectly, any of the Units (or any securities underlying the Units or that may be issued in connection with the Units) or to, or for the account or benefit of, a U.S. Person or person in the United States except pursuant to registration under the 1933 Act and the securities laws of all applicable states or available exemptions therefrom; and
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(v) |
the Purchaser did not receive the offer to purchase the Units as a result of, nor will it engage in, any “directed selling efforts” (as defined in Regulation S under the 1933 Act); or
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(b) |
The conditions set forth in clause (a) above are not met, but one or more of the conditions set forth on Appendix II are met.
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4.3 |
The Purchaser is aware that no prospectus or registration statement has been prepared or filed by the Company with any securities commission or similar authority in connection with the offering of the Units contemplated hereby, and that:
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(a) |
the Purchaser may be restricted from using most of the civil remedies available under applicable securities laws in Canada;
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(b) |
the Purchaser may not receive information that would otherwise be required to be provided under applicable securities laws and the Company is relieved from certain obligations that would otherwise be required to be given if a prospectus were provided under applicable securities laws in connection with the Offering; and
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(c) |
the issuance and sale of the Units to the Purchaser is subject to such sale being exempt from the requirements of applicable securities laws as to the filing of a prospectus or registration statement.
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4.4 |
The Purchaser is purchasing the Units as principal and is:
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(a) |
an “accredited investor” as defined in National Instrument 45-106
Prospectus Exemptions
(“
NI 45-106
”) and is not a person created or used solely to purchase or hold securities as an “accredited investor” as defined in paragraph (m) of the aforesaid definition of “accredited investor”; or
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(b) |
purchasing the Units at an acquisition cost to the Purchaser of not less than CDN$150,000 paid in cash, the Purchaser is not an individual and the Purchaser was not created or used solely to purchase or hold securities in reliance on the exemption from the dealer registration requirement or prospectus requirement available under section 2.10 of NI 45-106;
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4.5 |
If the Purchaser is resident in an international jurisdiction other than the United States then:
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(a) |
the Purchaser currently has knowledge and experience or has consulted the Purchaser’s own counsel, accountant or investment advisor, with respect to the investment contemplated hereby and applicable securities laws in the international jurisdiction in which the Purchaser resides which would apply to this subscription;
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(b) |
the delivery of this Subscription Agreement, the acceptance of it by the Company and the issuance of the Units to the Purchaser complies with all laws applicable to the Purchaser, including the laws of such Purchaser’s jurisdiction of residence, and all other applicable laws, and will not cause the Company to become subject to, or require it to comply with, any disclosure, prospectus, filing or reporting requirements under any applicable laws of the international jurisdiction.
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(c) |
the Purchaser is purchasing the Units in compliance with or pursuant to exemptions from any prospectus, registration or similar requirements under the applicable securities laws of the international jurisdiction in which the Purchaser resides (and the Purchaser shall deliver to the Company such further particulars of such applicable securities laws or exemptions and the Purchaser’s qualifications thereunder as the Company may request), and the purchase and sale of the Units does not trigger any obligation to prepare and file a prospectus, registration statement or similar document, or any other report with respect to such purchase and/or any registration on the part of the Company;
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(d) |
no applicable securities laws of the international jurisdiction in which the Purchaser resides require the Company to make any filings or seek any approvals of any kind whatsoever from any securities commission or regulatory authority of any kind whatsoever in the jurisdiction of residence of the Purchaser;
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(e) |
the Purchaser will, if requested by the Company, deliver to the Company a certificate or opinion of local counsel from the international jurisdiction which will confirm the matters referred to in subparagraphs (a) through (d) above to the satisfaction of the Company, acting reasonably; and
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(f) |
the Purchaser will not sell or otherwise dispose of any of Units (or any securities underlying the Units or that may be issued in connection with the Units) except in accordance with all applicable securities laws, including, without limitation, the rules, regulations and policies of the Exchange and the OTCQB. If the Purchaser sells or otherwise disposes of any of the Units (or any securities underlying the Units or that may be issued in connection with the Units), the Purchaser will obtain from the person acquiring them a covenant in the same form as provided for in this Subscription Agreement, and the Company shall not have any obligation to register any purported sale or disposition of the Units (or any securities underlying the Units or that may be issued in connection with the Units) which may be in violation of such laws and any such sale, transfer or other disposition shall be null and void and of no force or effect.
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4.6 |
The Purchaser acknowledges that:
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(a) |
no securities commission or similar regulatory authority has reviewed or passed on the merits of the Units;
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(b) |
there is no government or other insurance covering the Units;
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(c) |
there are risks associated with the purchase of the Units;
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(d) |
there are restrictions on the Purchaser's ability to resell the Units (or any securities underlying the Units or that may be issued in connection with the Units) and it is the responsibility of the Purchaser to find out what those restrictions are and to comply with them before selling any of the Units (or any securities underlying the Units or that may be issued in connection with the Units); and
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(e) |
the Company has advised the Purchaser that the Company is relying on an exemption from the requirements to provide the Purchaser with a prospectus or registration statement and to sell the Units through a person or company registered to sell securities under applicable securities laws and, as a consequence of acquiring the Units pursuant to this exemption, certain protections, rights and remedies provided by the applicable securities laws, including statutory rights of rescission or damages, will not be available to the Purchaser.
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4.7 |
If the Purchaser is not resident in British Columbia, the Purchaser certifies that the Purchaser is not resident in British Columbia and acknowledges that:
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(a) |
the Purchaser is knowledgeable of, or has been independently advised as to, the Other Applicable Securities Laws (as defined below);
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(b) |
the Purchaser is purchasing the Units pursuant to exemptions from any prospectus, registration or similar requirements under the Other Applicable Securities Laws, or, if such is not applicable, the Purchaser is permitted to purchase the Units under the Other Applicable Securities Laws without the need to rely on exemptions; and
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(c) |
the distribution of the Units to the Purchaser by the Company complies with all of the Other Applicable Securities Laws.
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4.8 |
The Purchaser is resident in the jurisdiction set forth in the “Address of Residence” set out on page 1 of this Subscription Agreement and the Purchaser will comply with all applicable securities laws and with the policies of the Exchange and the OTCQB concerning the purchase of, the holding of and the resale restrictions on the Units (or any securities underlying the Units or that may be issued in connection with the Units).
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4.9 |
The Purchaser is aware that the offer made by this subscription is irrevocable and requires acceptance by the Company and the acceptance for filing thereof by the Exchange and will not become an agreement between the Purchaser and the Company until accepted by the Company signing in the space above.
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4.10 |
If an individual, the Purchaser has attained the age of majority and is legally competent to execute and deliver this subscription and to take all actions required pursuant hereto and if a corporation, partnership or other entity, the Purchaser has been duly incorporated, created or organized and validly exists under the laws of its jurisdiction of incorporation, creation or organization and all necessary approvals by its directors and shareholders have been obtained for the execution and delivery of this subscription.
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4.11 |
The execution and delivery of this Subscription Agreement and the performance and compliance with the terms hereof will not result in any breach of, or be in conflict with, or constitute a default under, or create a state of facts which after notice or lapse of time or both would constitute a default under, any term or provision of any constating documents, by-laws or resolutions of the Purchaser or any indenture, contract, agreement (whether written or oral), instrument or other document to which the Purchaser is a party or subject, or any judgment, decree, order, statute, rule or regulation applicable to the Purchaser;
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4.12 |
Upon acceptance of this subscription by the Company, this Subscription Agreement, including all exhibits and appendices, will constitute a legal, valid and binding contract of purchase enforceable against the Purchaser in accordance with its terms and will not violate or conflict with the terms of any restriction, agreement or undertaking respecting purchases of securities by the Purchaser.
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4.13 |
The Purchaser’s purchase of the Units has not been made through or as a result of, the distribution of the securities comprising the Units is not being accompanied by and the Purchaser is not aware of, any advertisement of the securities in printed media of general and regular paid circulation, radio, television or electronically.
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4.14 |
No prospectus or offering memorandum within the meaning of applicable securities laws or any other document purporting to describe the business and affairs of the Company has been delivered to the Purchaser in connection with the Offering.
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4.15 |
The Purchaser is entitled under applicable securities laws to purchase such Units without the benefit of a prospectus or registration statement qualified or effective under such securities laws.
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4.16 |
No person has made to the Purchaser any written or oral representation;
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(a) |
that any person will resell or repurchase any of the Units (or any securities underlying the Units or that may be issued in connection with the Units);
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(b) |
that any person will refund all or any part of purchase price of the Units;
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(c) |
as to the future price or value of any of the Units; or
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(d) |
that any of the Units (or any securities underlying the Units or that may be issued in connection with the Units) will be listed and posted for trading on a stock exchange or marketplace or that application has been made to list and post any of the Units (or any securities underlying the Units or that may be issued in connection with the Units) for trading on a stock exchange or marketplace.
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4.17 |
None of the Units are being purchased by the Purchaser with knowledge of any material fact about the Company that has not been generally disclosed to the public.
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4.18 |
In the case of a person signing this subscription as agent for a disclosed principal, each beneficial Purchaser for whom the agent is purchasing, or is deemed under NI 45-106 to be purchasing, as principal, for its own account and not for the benefit of any other person, and such person is duly authorized to enter into this Subscription Agreement and to execute all documentation in connection with the purchase on behalf of each such beneficial Purchaser.
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4.19 |
The funds representing the aggregate Subscription Price in respect of the Units which will be advanced by or on behalf of the Purchaser to the Company hereunder do not represent proceeds of crime for the purposes of the
Proceeds of Crime (Money Laundering) and Terrorist Financing Act
(Canada) (for the purposes of this section 4.19 the “
PCMLTFA
”) and the Purchaser acknowledges and agrees that the Company may be required by law to provide the securities regulators with a list setting forth the identities of the beneficial purchasers of the Units, or disclosure pursuant to the PCMLTFA. Notwithstanding that the Purchaser may be purchasing Units as agent on behalf of an undisclosed principal, the Purchaser agrees to provide, on request, particulars as to the identity of such undisclosed principal as may be required by the Company in order to comply with the foregoing. To the best of the Purchaser’s knowledge (a) none of the subscription funds provided by or on behalf of the Purchaser (i) have been or will be derived directly or indirectly from or related to any activity that is deemed criminal under the laws of Canada, the United States, or any other jurisdiction, or (ii) are being tendered on behalf of a person or entity who has not been identified to the Purchaser and, (b) the Purchaser will promptly notify the Company if the Purchaser discovers that any of such representations cease to be true, and shall provide the Company with appropriate information in connection therewith.
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4.20 |
The Purchaser is at arm’s-length within the meaning of Securities Laws (as defined herein) of the Company.
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4.21 |
The Purchaser is not, with respect to the Company or any of its affiliates, a “control person”, as defined under applicable securities laws, and the acquisition of the Units hereunder by the Purchaser will not result in the Purchaser becoming a “control person”.
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4.22 |
The Purchaser has been advised to seek tax, investment and independent legal advice and any other professional advice the Purchaser considers appropriate in connection with the Purchaser’s purchase of the Units and the Purchaser confirms that the Purchaser has not relied on the Company or its legal counsel in any manner in connection with the Purchaser’s purchase of the Units.
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5.1 |
The Purchaser acknowledges and agrees (on its own behalf and, if applicable, on behalf of each beneficial purchaser for whom the Purchaser is contracting hereunder) with the Company (which acknowledgements and agreements shall survive the Closing) that:
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(a) |
This subscription forms part of a larger Offering.
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(b) |
The Units are subject to resale restrictions under applicable Securities Laws (defined below) and the Purchaser covenants that it will not resell the Units (or any securities underlying the Units or that may be issued in connection with the Units), except in compliance with such laws and the Purchaser acknowledges that it is solely responsible (and the Company is not in any way responsible) for such compliance. The Purchaser is advised to consult the Purchaser’s own legal advisors in this regard. For purposes hereof, “
Securities Laws
” means the
Securities Act
(British Columbia) (the “
B.C. Act
”), the 1933 Act, and the rules and regulations promulgated thereunder and all orders, rulings, published policy statements, notices, interpretation notes, directions and instruments thereunder and, if the Purchaser is not resident in British Columbia, also means the Other Applicable Securities Laws.
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(c) |
The Units are being offered for sale only on a “private placement” basis.
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(d) |
In purchasing the Units, the Purchaser has relied solely upon publicly available information relating to the Company and not upon any oral or written representation as to any fact or otherwise made by or on behalf of the Company or any other person associated therewith, the decision to purchase the Units was made on the basis of publicly available information.
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(e) |
The Purchaser's ability to transfer the Units (or any securities underlying the Units or that may be issued in connection with the Units) is limited by, among other things, the Securities Laws and the policies of the Exchange. In particular the Purchaser acknowledges having been informed that the Units (or any securities underlying the Units or that may be issued in connection with the Units), are subject to resale restrictions under National Instrument 45-102 –
Resale of Securities
(“
NI 45-102
”) and may not be sold or otherwise disposed of in Canada for a period of four months and one day from the date of distribution of the Units, unless a statutory exemption is available or a discretionary order is obtained from the applicable Securities Commission allowing the earlier resale thereof, and may be subject to additional resale restrictions if such sale or other disposition would be a “control distribution”, as that term is defined in NI 45-102. If the Purchaser is not resident in Canada, additional resale restrictions may apply under the Other Applicable Securities Laws. In addition, the policies of the Exchange may require that the Units (or any securities underlying the Units or that may be issued in connection with the Units) not be sold or otherwise disposed of for a period of not less than four months and one day from the Closing Date.
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(f) |
The representations, warranties, covenants and acknowledgements of the Purchaser contained in this Subscription Agreement, and in any appendices or other documents or materials executed and delivered by the Purchaser hereunder, are made by the Purchaser with the intent that they may be relied upon by the Company and its professional advisors in determining the Purchaser's eligibility to purchase the Units. The Purchaser further agrees that by accepting the Units the Purchaser shall be representing and warranting that the foregoing representations and warranties are true as at the Closing with the same force and effect as if they had been made by the Purchaser at the Closing and that they shall survive the purchase by the Purchaser of the Units and shall continue in full force and effect notwithstanding any subsequent disposition by the Purchaser of the Units (or any securities underlying the Units or that may be issued in connection with the Units). The Purchaser hereby agrees to indemnify and save harmless the Company and its directors, officers, employees, advisors, affiliates, shareholders and agents, and their respective counsel, against all losses, claims, costs, expenses and damages or liabilities which any of them may suffer or incur and which are caused by or arise from any inaccuracy in, breach or misrepresentation by the Purchaser of, any such representations, warranties and covenants. The Purchaser undertakes to immediately notify the Company of any change in any statement or other information relating to the Purchaser set forth herein or in an Investor Certificate, as the case may be, that takes place prior to the Closing Date.
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(g) |
The sale and delivery of the Units to the Purchaser is conditional upon such sale being exempt from the requirement to file a prospectus or registration statement or to prepare and deliver an offering memorandum or similar document under any applicable statute relating to the sale of the Units or upon the issuance of such orders, consents or approvals as may be required to permit such sale without the requirement of filing a prospectus or registration statement or preparing and delivering an offering memorandum or similar document. The Purchaser further acknowledges and agrees that the Company may be required to provide applicable securities regulatory authorities with a list setting forth the identities of the beneficial purchasers of the Units and that the Purchaser will provide, on request, particulars as to the identity of such beneficial purchasers as may be required by the Company in order to comply with the foregoing.
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(h) |
The Purchaser and, if the person signing this subscription is acting as agent for a disclosed principal, such agent acknowledge and consent to the fact that the Company is collecting the Purchaser’s, and, if applicable, such agent’s personal information (as that term is defined under applicable privacy legislation, including, without limitation, the
Personal Information Protection and Electronic Documents Act
(Canada) and any other applicable similar, replacement or supplemental provincial or federal legislation or laws in effect from time to time), for the purpose of completing this Subscription Agreement. The Purchaser and, if the person signing this subscription is acting as agent for a disclosed principal, such agent acknowledge and consent to the Company retaining such personal information for as long as permitted or required by law or business practices. The Purchaser and, if the person signing this subscription is acting as agent for a disclosed principal, such agent further acknowledges and consents to the fact that the Company may be required by the Securities Laws, the rules and policies of any stock exchange or the rules of the Investment Industry Regulatory Organization of Canada to provide regulatory authorities, stock exchanges or marketplaces with any personal information provided by the Purchaser or, if applicable, such agent in this Subscription Agreement. The Purchaser and, if the person signing this subscription is acting as agent for a disclosed principal, such agent represent and warrant that it has the authority to provide the consents and acknowledgements set out in this Subsection 5.1(h). In addition to the foregoing, the Purchaser and, if the person signing this subscription is acting as agent for a disclosed principal, such agent acknowledge and agree that the Company may use and disclose the Purchaser’s and, if applicable, such agent’s personal information, and consents thereto, as follows:
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(i) |
for internal use with respect to managing the relationships between and contractual obligations of the Company and the Purchaser;
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(ii) |
for use and disclosure for income tax related purposes, including without limitation, where required by law, disclosure to the Canada Revenue Agency;
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(iii) |
disclosure to stock exchanges, marketplaces and securities regulatory authorities and other regulatory bodies having jurisdiction with respect to approval or acceptance for filing of the Offering, reports of trades and similar stock exchange, marketplace or regulatory filings;
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(iv) |
disclosure to a governmental or other authority to which the disclosure is required by court order or subpoena compelling such disclosure and where there is no reasonable alternative to such disclosure;
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(v) |
disclosure to professional advisers of the Company in connection with the performance of their professional services;
|
(vi) |
disclosure to any person where such disclosure is necessary for legitimate business reasons;
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(vii) |
disclosure to a court determining the rights of the parties under this Subscription Agreement; or
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(viii) |
for use and disclosure as otherwise required or permitted by law.
|
(i) |
The Purchaser is aware of the characteristics of the Units and the risks relating to an investment therein and agrees that the Purchaser must bear the economic risk of his, her or its investment in the Units.
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(j) |
The Purchaser has such knowledge in financial and business affairs as to be capable of evaluating the merits and risks of the Purchaser’s proposed investment in the Units.
|
(k) |
This subscription is conditional upon its acceptance by the Company and the Subscription Agreement is conditional upon the acceptance of the Offering for filing by the Exchange.
|
(l) |
The Purchaser is aware that (i) the Company may complete additional financings in the future in order to develop the Company’s business and to fund its ongoing development, (ii) there is no assurance that such financings will be available and, if available, on reasonable terms, (iii) any such future financings may have a dilutive effect on the Company’s securityholders, including the Purchaser, and (iv) if such future financings are not available, the Company may be unable to fund its on-going development and the lack of capital resources may result in the failure of the Company’s business.
|
(m) |
A finder’s fee may be payable by the Company to any finder who introduces a purchaser to the Company and such person’s Subscription Agreement is accepted by the Company.
|
(n) |
The Purchaser is aware that the Offering is not subject to a minimum aggregate subscription amount, and the Company may close the Offering for less than the maximum aggregate amount indicated or may increase the size of the Offering.
|
6.1 |
In addition to the acknowledgements given in Article 5 hereof, the Purchaser acknowledges that the Units (or any securities underlying the Units or that may be issued in connection with the Units) will be subject to statutory and Exchange imposed resale restrictions.
|
6.2 |
The Purchaser acknowledges that the Common Shares and Warrants and, if any Warrants are exercised prior to the expiry of the statutory or Exchange imposed resale restrictions, any Warrant Shares, will have attached to them whether through the electronic deposit of CDS, an ownership statement issued under a direct registration system or other electronic book-entry system, or on certificates that may be issued, as applicable, a legend setting out the resale restrictions under applicable securities legislation substantially in the following form and with the information completed:
|
6.3 |
The Purchaser acknowledges that the Units are being offered pursuant to an exemption from the registration requirements of the 1933 Act pursuant to Regulation S or Regulation D. The Purchaser further acknowledges that the Units (or any securities underlying the Units or that may be issued in connection with the Units) have not been registered under the 1933 Act or the securities laws of any State of the United States and that the Company does not intend to register any of the Units (or any securities underlying the Units or that may be issued in connection with the Units) under the 1933 Act or the securities laws of any state of the United States and has no obligation to do so. The Units may not be offered or sold to a U.S. Person or a person in the United States unless registered in accordance with United States federal securities laws and all applicable state securities laws or exemptions from such requirements are available.
|
6.4 |
THE PURCHASER ACKNOWLEDGES THAT THE COMPANY BEARS NO RESPONSIBILITY FOR THE REMOVAL OF RESALE RESTRICTIONS OR LEGENDS ON SECURITIES AND THAT THE RESPONSIBILITY FOR COMPLIANCE AND COST WITH SUCH RESTRICTIONS OR THE REMOVAL OF LEGENDS IS TO BE BORNE BY THE PURCHASER AND NOT THE COMPANY.
|
7.1 |
The Company hereby represents and warrants to the Purchaser that:
|
(a) |
the Company is a valid and subsisting corporation duly incorporated and in good standing under the
Nevada Revised Statutes
(Nevada);
|
(b) |
it will reserve or set aside sufficient shares in its treasury to issue the Common Shares and Warrant Shares; and
|
(c) |
no general solicitation or general advertising with respect to the sale of the Units offered hereby or of any of the securities of the Company has been made or is being made in relation to or in conjunction with the distribution pursuant to the Offering.
|
7.2 |
The Company shall perform and carry out all of the acts and things to be completed by it as provided in this Subscription Agreement.
|
8.1 |
Time shall, in all respects, be of the essence hereof.
|
8.2 |
The Purchaser authorizes the
Company to complete or correct any errors or omissions in this Subscription Agreement or of Appendix “I” – Investor Certificate to this Subscription Agreement, which are required to be completed and executed by the Purchaser and delivered to the Company hereunder.
|
8.3 |
All references herein to monetary amounts are to lawful money of Canada, unless indicated otherwise.
|
8.4 |
The headings contained herein are for convenience only and shall not affect the meaning or interpretation hereof.
|
8.5 |
Except as expressly provided for in this Subscription Agreement and in the agreements, instruments and other documents provided for, contemplated or incorporated herein, this Subscription Agreement constitutes the only agreement between the parties with respect to the subject matter hereof and shall supersede any and all prior negotiations and understandings. This Subscription Agreement may be amended or modified in any respect by written instrument only.
|
8.6 |
The terms and provisions of this Subscription Agreement shall be binding upon and enure to the benefit of the Purchaser, the Company and their respective successors and assigns; provided that, except as herein provided, this Subscription Agreement shall not be transferable or assignable by any party without the written consent of the other.
|
8.7 |
This Subscription 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 and the parties hereto hereby irrevocably attorn to the exclusive jurisdiction of the courts of the Province of British Columbia.
|
8.8 |
This Subscription Agreement is intended to and shall take effect on the date of acceptance of the subscription by the Company, notwithstanding its actual date of execution or delivery by any of the parties hereto, and shall be dated for reference as of the date of such acceptance by the Company.
|
8.9 |
The Company shall be entitled to rely on delivery of a facsimile or electronic copy of an executed subscription and acceptance by the Company of such subscription shall be legally effective to create a valid and binding Agreement between the Purchaser and the Company in accordance with the terms hereof.
|
8.10 |
The Purchaser acknowledges and agrees that all costs incurred by the Purchaser (including any fees and disbursements of counsel retained by the Purchaser) relating to the sale of the Units to the Purchaser shall be borne by the Purchaser.
|
8.11 |
The Purchaser acknowledges that the Purchaser has consented to and requested that all documents evidencing or relating in any way to the issuance of the Units be drawn up in the English language only.
Le soussigne reconnait par les presentes avoir consenti et exige que tous les documents faisant foi ou se rapportant de quelque maniere a la vente des titres offerts soient rediges en anglais seulement.
|
8.12 |
Each of the parties hereto upon the request of the other parties hereto, whether before or after the Closing, shall do, execute, acknowledge and deliver or cause to be done, executed, acknowledged and delivered all such further acts, deeds, documents, assignments, transfers, conveyances, powers of attorney and assurances as reasonably may be necessary or desirable to complete, better evidence, or perfect the transactions contemplated herein.
|
Canadian Dollars
Beneficiary bank:
Beneficiary bank address:
Transit #:
Institution #:
SWIFT:
Beneficiary name:
Beneficiary account:
|
|
I. |
If the Purchaser is not an individual, is subscribing for $150,000 or more and is an entity not created or used solely to purchase or hold securities, please complete
Section I – Minimum $150,000 Investment
below.
|
II. |
If the Purchaser does not meet the requirements of Section I but is an Accredited Investor, please make the appropriate selection under
Section II –Accredited Investor
below.
|
III. |
If none of the above applies, please make the appropriate selection under
Section III – Employees, Officers, Directors and Consultants
below.
|
(a) |
A non-individual purchaser purchasing securities having an acquisition cost of not less than $150,000 paid in cash and was not created or used solely to purchase or hold securities in reliance on the exemption from the dealer registration requirement or prospectus requirement available under section 2.10 of NI 45-106;
|
(a) |
a Canadian financial institution, or a Schedule III bank;
|
(b) |
the Business Development Bank of Canada incorporated under the
Business Development Bank of Canada Act
(Canada);
|
(c) |
a subsidiary of any person referred to in paragraphs (a) or (b), if the person owns all of the voting securities of the subsidiary, except the voting securities required by law to be owned by directors of that subsidiary;
|
(d) |
a person registered under the securities legislation of a jurisdiction of Canada as an adviser or dealer;
|
(e) |
an individual registered under the securities legislation of a jurisdiction of Canada as a representative of a person referred to in paragraph (d);
|
(e.1) |
an individual formerly registered under the securities legislation of a jurisdiction of Canada, other than an individual formerly registered solely as a representative of a limited market dealer under one or both of the Securities Act (Ontario) or the Securities Act (Newfoundland and Labrador);
|
(f) |
the Government of Canada or a jurisdiction of Canada, or any crown corporation, agency or wholly owned entity of the Government of Canada or a jurisdiction of Canada;
|
(g) |
a municipality, public board or commission in Canada or a metropolitan community, school board, the Comité de gestion de la taxe scolaire de l’île de Montréal or an intermunicipal management board in Québec;
|
(h) |
a national, federal, state, provincial, territorial or municipal government of or in any foreign jurisdiction, or an agency of that government;
|
(i) |
a pension fund that is regulated by either the Office of the Superintendent of Financial Institutions (Canada) or a pension commission or similar regulatory authority of a jurisdiction of Canada;
|
(j) |
an individual who, either alone or with a spouse, beneficially owns, directly or indirectly, financial assets having an aggregate realizable value that before taxes, but net of any related liabilities, exceeds $1,000,000
1
[The Purchaser is required to complete the Risk Acknowledgement Form for Accredited Investors who are Individuals at Appendix I-A hereto]
;
|
(j.1) |
an individual who beneficially owns financial assets having an aggregate realizable value that, before taxes but net of any related liabilities, exceeds $5,000,000
3
;
|
(k) |
an individual whose net income before taxes exceeded $200,000 in each of the two most recent calendar years or whose net income before taxes combined with that of a spouse exceeded $300,000 in each of the two most recent calendar years and who, in either case, reasonably expects to exceed that net income level in the current calendar year
2
[The Purchaser is required to complete the Risk Acknowledgement Form for Accredited Investors who are Individuals at Appendix I-A hereto]
;
|
(l) |
an individual
3
who, either alone or with a spouse
3
, has net assets of at least $5,000,000
[The Purchaser is required to complete the Risk Acknowledgement Form for Accredited Investors who are Individuals at Appendix I-A hereto]
;
|
(m) |
a person, other than an individual or investment fund, that has net assets of at least $5,000,000 as shown on its most recently prepared financial statements and such person has not been created or used solely to purchase or hold securities as an accredited investor;
|
(n) |
an investment fund that distributes or has distributed its securities only to;
|
(i) |
a person that is or was an accredited investor at the time of the distribution;
|
(ii) |
a person that acquires or acquired securities in the circumstances referred to in sections 2.10 of NI 45-106 [
Minimum amount investment
], and 2.19 of NI 45-106 [
Additional investment in investment funds
], or
|
(iii) |
a person described in paragraph (i) or (ii) that acquires or acquired securities under section 2.18 of NI 45-106 [
Investment fund reinvestment
];
|
(o) |
an investment fund that distributes or has distributed securities under a prospectus in a jurisdiction of Canada for which the regulator, or, in Québec, the securities regulatory authority has issued a receipt;
|
(p) |
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 in a jurisdiction of Canada or foreign jurisdiction, acting on behalf of a fully managed account managed by the trust company or trust corporation, as the case may be;
|
(q) |
a person acting on behalf of a fully managed account
4
managed by that person, if that person is registered or authorized to carry on business as an adviser or the equivalent under the securities legislation of a jurisdiction of Canada or a foreign jurisdiction;
|
(r) |
a registered charity under the
Income Tax Act
(Canada) that, in regard to the trade, has obtained advice from an eligibility adviser or an adviser registered under the securities legislation of the jurisdiction of the registered charity to give advice on the securities being traded
5
;
|
(s) |
an entity organized in a foreign jurisdiction that is analogous to any of the entities referred to in paragraphs (a) to (d) or paragraph (i) in form and function;
|
(t) |
a person in respect of which all of the owners of interests, direct, indirect or beneficial, except the voting securities required by law to be owned by directors, are persons that are accredited investors;
|
(u) |
an investment fund that is advised by a person registered as an adviser or a person that is exempt from registration as an adviser;
|
(v) |
a person that is recognized or designated by the securities regulatory authority or, except in Ontario and Québec, the regulator as an accredited investor; or
|
(w) |
a trust established by an accredited investor for the benefit of the accredited investor's family members of which a majority of the trustees are accredited investors and all of the beneficiaries are the accredited investor's spouse, a former spouse of the accredited investor or a parent, grandparent, brother, sister, child or grandchild of that accredited investor, of that accredited investor's spouse or of that accredited investor's former spouse.
|
(a) |
an employee, executive officer, director or consultant of the Company;
|
(b) |
an employee, executive officer, director or consultant of a related entity of the Company; or
|
(c) |
a permitted assign of a person referred to in paragraphs (a) or (b).
|
Witness (If Purchaser is an individual)
|
|
Name of Purchaser [Please Print]
|
|
|
|
Name of Witness [Please Print]
|
|
Signature of Purchaser or Authorized Signatory of Purchaser
|
|
|
Name and Office of Authorized Signatory of Purchaser [Please Print]
|
Address of Purchaser |
(a) |
a member of the board of directors of a company or an individual who performs similar functions for a company; and
|
(b) |
with respect to a person that is not a company, an individual who performs functions similar to those of a director of a company;
|
(a) |
a chair, vice-chair or president,
|
(b) |
a vice-president in charge of a principal business unit, division or function including sales, finance or production, or
|
(c) |
performing a policy-making function in respect of the issuer;
|
(a) |
cash,
|
(b) |
securities, or
|
(c) |
a contract of insurance, a deposit or an evidence of a deposit that is not a security for the purposes of securities legislation
|
(a) |
a trustee, custodian, or administrator acting on behalf of, or for the benefit of the person,
|
(b) |
a holding entity of the person,
|
(c) |
a registered retirement savings plan or registered retirement income fund of the person,
|
(d) |
a spouse of the person,
|
(e) |
a trustee, custodian, or administrator acting on behalf of, or for the benefit of the spouse of the person,
|
(f) |
a holding entity of the spouse of the person, or
|
(g) |
a registered retirement savings plan or registered retirement income fund of the spouse of the person;
|
(a) |
an individual,
|
(b) |
a corporation,
|
(c) |
a partnership, trust, fund and an association, syndicate, organization or other organized group of persons, whether incorporated or not, and
|
(d) |
an individual or other person in that person’s capacity as a trustee, executor, administrator or personal or other legal representative;
|
(a) |
is married to another individual and is not living separate and apart within the meaning of the
Divorce Act
(Canada), from the other individual;
|
(b) |
is living with another individual in a marriage-like relationship, including a marriage-like relationship between individuals of the same gender; or
|
(c) |
in Alberta, is an individual referred to in paragraph (a) or (b), or is an adult interdependent partner within the meaning of the
Adult Interdependent Relationships Act
(Alberta);
|
(a) |
is not a debt security; and
|
(b) |
carries a voting right either under all circumstances or under some circumstances that have occurred and are continuing.
|
Witness (If Purchaser is an individual)
|
|
Name of Purchaser [Please Print]
|
|
|
|
Name of Witness [Please Print]
|
|
Signature of Purchaser or Authorized Signatory of Purchaser
|
|
|
Name and Office of Authorized Signatory of Purchaser [Please Print]
|
Address of Purchaser |
Certificate No: 2017 -[•]
Number of Warrants: [•]
|
Date: July
[•]
, 2017
|
1. |
Exercise of Warrants
.
|
2. |
Anti-Dilution Protection
.
|
(i) |
“
Current Market Price per Share
”, at any date, means the price per share of Common Stock (denominated in Canadian dollars based, if necessary, on the daily average rate of exchange as reported by the Bank of Canada) equal to the VWAP for the five trading-days preceding such date (i) on the TSX, or (ii) if the Common Stock is not traded on the TSX, on any other recognized stock exchange, or (iii) if the Common Stock is not traded on a recognized stock exchange, on the over-the-counter market. If the Common Stock is not then traded in the over-the-counter market or on a recognized stock exchange, the Current Market Price of the Common Stock shall be the fair market value of the Common Stock as determined in good faith by the board of directors of the Company after consultation with an internationally recognized investment dealer or investment banker;
|
(ii) |
“
director
” means a director of the Company from time to time and reference herein to an “
action by the directors
” means an action by the directors of the Company as a board or, whenever duly empowered, an action by a committee of directors;
|
(iii) |
“
Dividends Paid in the Ordinary Course
” means dividends paid on the Common Stock in any fiscal year of the Company in cash, provided that the amount of such dividends does not in such fiscal year exceed 50% of the consolidated net income of the Company before extraordinary items for the period of 12 consecutive months ended immediately prior to the first day of such fiscal year less the amount of all cash dividends payable on all shares ranking prior to or on a parity with the Common Stock in respect of the payment of dividends (such consolidated net income, extraordinary items and dividends to be shown in the audited consolidated financial statements of the Company for such period of 12 consecutive months or if there are no audited consolidated financial statements for such period, computed in accordance with generally accepted accounting principles, consistent with those applied in the preparation of the most recent audited consolidated financial statements of the Company);
|
(iv) |
“
recognized stock exchange
” means a stock exchange or quotation system recognized by the Canadian Securities Administrators;
|
(v) |
“
TSX
” means the Toronto Stock Exchange; and
|
(vi) |
“
VWAP
”, for any period, means the volume weighted average trading price of the Common Stock, calculated by dividing the total value by the total volume of Common Stock traded for the trading days included in the relevant period.
|
(a) |
If and whenever at any time prior to the Time of Expiry the Company shall:
|
(i) |
declare a dividend or make a distribution on the Common Stock payable in Common Stock (or securities exchangeable for or convertible into Common Stock)
|
(ii) |
subdivide, redivide or change the outstanding Common Stock into a greater number of shares of Common Stock; or
|
(iii) |
reduce, combine or consolidate the outstanding Common Stock into a lesser number of shares of Common Stock,
|
(b) |
If and whenever at any time prior to the Time of Expiry the Company shall fix a record date for the issuing of rights, options or warrants to all or substantially all of the holders of the Common Stock entitling them for a period expiring not more than forty-five (45) days after such record date (the “
Rights Period
”) to subscribe for or purchase Common Stock (or securities convertible into or exchangeable for Common Stock) at a price per share (or having a conversion or exchange price per share) which is less than 95% of the Current Market Price per Share as of three trading days prior to the record date for such issue (any of such events being called a “
Rights Offering
”), then effective immediately after the end of the Rights Period the Exercise Price shall be adjusted to a price determined by multiplying the applicable Exercise Price in effect at the end of the Rights Period by a fraction the numerator of which shall be the sum of:
|
(i) |
the number of shares of Common Stock outstanding as of the record date for the Rights Offering; and
|
(ii) |
a number determined by dividing (A) either (i) the product of the number of shares of Common Stock issued or subscribed during the Rights Period upon exercise of the rights, warrants or options under the Rights Offering and the price at which such Common Stock is offered, or (ii) as the case may be, the product of the number of shares of Common Stock for or into which the convertible or exchangeable securities offered during the Rights Period upon exercise of the rights, warrants or options under the Rights Offering are exchangeable or convertible and the exchange or conversion price of the convertible or exchangeable securities so issued, by (B) the Current Market Price per Share as of three trading days prior to the record date for the Rights Offering, and
|
(c) |
If and whenever at any time prior to the Time of Expiry the Company shall fix a record date for the payment, issue or distribution to all or substantially all of the holders of the Common Stock of (i) a dividend, (ii) any property, cash or assets (including evidences of indebtedness), or (iii) rights, options, warrants, or other securities (including, without limitation, securities convertible into or exchangeable for Common Stock), and such payment, issue or distribution does not constitute a Dividend Paid in the Ordinary Course, a Common Stock Reorganization or a Rights Offering, the Exercise Price shall be adjusted effective immediately after such record date to a price determined by multiplying the applicable Exercise Price in effect on such record date by a fraction:
|
(i) |
the numerator of which shall be:
|
(1) |
the product of the number of shares of Common Stock outstanding on such record date and the Current Market Price per Share as of three trading days prior to such record date; less
|
(2) |
the aggregate fair market value, as determined by action by the directors (whose determination shall be conclusive) and subject to the prior approval of the TSX and any other stock exchange or market on which the Common Stock may be listed or traded, to the holders of the Common Stock of such dividend, property, cash, assets, rights, options, warrants or other securities so paid, issued or distributed less the aggregate fair market value, as determined by action of the directors (whose determination shall be conclusive) and subject to the prior approval of the TSX and any other stock exchange or market on which the Common Stock may be listed or traded, of the consideration, if any, received therefor by the Company, and
|
(ii) |
the denominator of which shall be the number of shares of Common Stock outstanding on such record date multiplied by the Current Market Price per Share as of three trading days prior to such record date.
|
(d) |
If and whenever at any time prior to the Time of Expiry there shall be a reorganization, reclassification or other change of Common Stock at any time outstanding or change of the Common Stock into other shares or into other securities (other than a Common Stock Reorganization), or a consolidation, amalgamation, arrangement or merger of the Company with or into any other corporation or other entity, or a sale, lease, exchange or transfer of all or substantially all of the undertaking or assets of the Company to another person in which the holders of Common Stock are entitled to receive shares, other securities or property, including cash (any of such events being herein called a “
Capital Reorganization
”), if the Holder exercises its right to subscribe for and purchase Common Stock pursuant to the exercise of the Warrants after the effective date of such Capital Reorganization then the Holder shall be entitled to receive, and shall accept for the same aggregate consideration in lieu of the number of shares of Common Stock to which the Holder was theretofore entitled upon such exercise, the aggregate number of shares, other securities or other property, including cash, which it would have received as a result of such Capital Reorganization had the Holder exercised its right to acquire Common Stock immediately prior to the effective date or record date, as the case may be, of the Capital Reorganization and had the Holder been the holder of such Common Stock on such effective date or record date, as the case may be.
|
(e) |
If determined appropriate by the directors, acting reasonably, and subject to any required prior approval of the TSX and any other stock exchange or market on which the Common Stock may be listed or traded, appropriate adjustments shall be made in the application of the provisions set forth in this subsection 2.2, with respect to any shares, other securities or other property, including cash, deliverable upon the exercise of any Warrant. Any such adjustments shall be made by and set forth in an agreement supplemental hereto approved by action by the directors, acting reasonably, and shall for all purposes be conclusively deemed to be appropriate adjustments.
|
(f) |
If and whenever at any time prior to the Time of Expiry there shall occur a Common Stock Reorganization which results in an adjustment to the Exercise Price pursuant to the provisions of this subsection 2.2, the number of shares of Common Stock issuable (at the adjusted Exercise Price) upon the exercise of Warrants shall be adjusted contemporaneously with the adjustment of the Exercise Price by multiplying the number of shares of Common Stock theretofore issuable on the exercise thereof by a fraction, the numerator of which shall be the applicable Exercise Price in effect immediately prior to such adjustment and the denominator of which shall be the applicable Exercise Price resulting from such adjustment.
|
(g) |
In case the Company after the date of issue of the Warrants shall take any action affecting the Common Stock, other than action described above in this subsection 2.2, which in the opinion of the directors, acting reasonably, would materially affect the rights of the Holder and/or the acquisition rights of the Holder, then that number of shares of Common Stock which are to be received upon the exercise of the Warrants shall be adjusted in such manner, if any, and at such time, by action of the directors, acting reasonably, as they may determine to be equitable to the Holder in the circumstances, but subject in all cases to any necessary regulatory approval, including the prior consent of the TSX and any other stock exchange or market on which the Common Stock may be listed or traded.
|
(a) |
no adjustment to the Exercise Price shall be required unless such adjustment would result in a change of at least 1% in the prevailing Exercise Price and no adjustment in the number of shares of Common Stock issuable upon exercise of the Warrants will be required to be made unless the cumulative effect of such adjustment or adjustments would change the number of shares of Common Stock issuable upon the exercise of a Warrant by at least one share of Common Stock and, for greater clarity, any adjustment which, except for the qualification of this section, would otherwise have been required to be made shall be carried forward and taken into account in any subsequent adjustment; provided, however, that in no event shall the Company be obligated to issue fractional shares of Common Stock or fractional interests in Common Stock upon exercise of a Warrant;
|
(b) |
if a dispute shall at any time arise with respect to adjustments to the Exercise Price or the number of shares of Common Stock issuable pursuant to the exercise rights represented by a Warrant, such disputes shall be conclusively determined by the Company’s auditors or, if they are unable or unwilling to act, by such other firm of independent chartered accountants as may be selected by action by the directors and any such determination shall, absent manifest or clerical error, be conclusive evidence of the correctness of any adjustments made; and
|
(c) |
if the Company shall set a record date to determine the holders of its Common Stock for the purpose of entitling them to receive any dividend or distribution or any subscription or purchase rights, options or warrants and shall thereafter and before the distribution to such shareholders of any such dividend, distribution or subscription or purchase rights legally abandon its plan to pay or deliver such dividend, distribution or subscription or purchase rights, then no adjustment in the Exercise Price or the number of shares of Common Stock issuable upon exercise of the Warrants shall be required by reason of the setting of such record date.
|
3. |
Covenants by the Company
.
|
(a) |
it will reserve and there will remain unissued out of its authorized capital, solely for the purpose of issuing upon the exercise of the Warrants, a sufficient number of shares of Common Stock to satisfy the rights of acquisition provided for in this Warrant Certificate;
|
(b) |
all shares of Common Stock issued upon exercise of the right to purchase provided for herein shall, upon payment of the Exercise Price therefor, be duly authorized and issued as fully paid and non-assessable shares of Common Stock;
|
(c) |
it will make all requisite filings under applicable securities legislation in connection with the issuance of Common Stock upon exercise of the Warrants;
|
(d) |
it will at all times, so long as any of the Warrants evidenced by this Warrant Certificate remain outstanding use its reasonable commercial efforts to do and cause to be done all things necessary to maintain its status as a reporting issuer not in default under the laws of the Provinces of British Columbia, Alberta and Ontario; and
|
(e) |
it will at its expense and as expeditiously as possible, use its reasonable commercial efforts to cause all shares of Common Stock issuable upon the exercise of the Warrants to be duly listed on the TSX and/or any other recognized stock exchange upon which the Common Stock may be then listed prior to the issuance of such shares.
|
4. |
Representations and Warranties of the Company
.
|
(a) |
it is duly authorized and has all necessary corporate power and authority to create and issue the Warrants evidenced hereby and the Common Stock issuable upon the exercise of the Warrants;
|
(b) |
this Warrant Certificate has been duly executed and the Warrants evidenced hereby represent valid, legal and binding obligations of the Company enforceable in accordance with their terms, and the Company has the power and authority to issue this certificate and to perform each of its obligations as herein contained; and
|
(c) |
the execution and delivery of this Warrant Certificate by the Company are not, and the issuance of the Common Stock upon exercise of the Warrants in accordance with the terms hereof, will not be, inconsistent with the Company’s constating documents, and do not and will not contravene any provision of, or constitute a default under, any applicable law or any indenture, mortgage, contract or other instrument of which the Company is a party or by which it is bound.
|
5. |
Transfer of Warrants
.
|
6. |
Replacement
.
|
7. |
Expiry
.
|
8. |
Time
.
|
9. |
Governing Law
.
|
10. |
Legends on Common Stock
.
|
11. |
Amendments
.
|
12. |
Miscellaneous Interpretation Matters
.
|
(a) |
The division of this Warrant Certificate into sections and subsections and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation hereof.
|
(b) |
Unless otherwise expressly provided or unless the context otherwise requires, words importing the singular include the plural and vice versa and words importing gender include all genders.
|
(c) |
The use of the words, “includes” or “including” shall be deemed to mean “includes, without limitation”, or “including, without limitation”, as applicable, in each case whether or not they are in fact followed by such words or words of like import.
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(d) |
For the purposes hereof, “business day” means any day except Saturday, Sunday or a statutory holiday in Vancouver, British Columbia and, if any period expires or any day on which any action is to be taken under this Warrant Certificate falls on a day which is not a business day, it shall be deemed to refer to the next business day.
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13. |
Severability
.
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14. |
Enurement
.
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15. |
Language
.
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16. |
General
.
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SILVER BULL RESOURCES, INC.
|
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Name:
Sean Fallis
Title:
Chief Financial Officer
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(i) | Number of Warrants to be exercised: | ||
(ii) | Number of shares of Common Stock: | ||
(iii) | Exercise Price: | ||
(iv) | Aggregate Purchase Price [(ii) multiplied by (iii)]: | $ |
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Per:
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Direction as to Registration
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Name of Registered Holder:
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Address of Registered Holder:
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Signature of Transferor
__________________________________________
Address of Transferor
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Address of Transferee:
___________________________
___________________________
___________________________
___________________________
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X __________________________________________
Signature of individual (if Transferee
is
an individual)
X ___________________________________________
Authorized signatory (if Transferee is
not
an individual)
_____________________________________________
Name of Transferee (
please print
)
_____________________________________________
Name of authorized signatory (
please print
)
_____________________________________________
Official capacity of authorized signatory (
please print
)
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Certificate No: 2017 -[•]
Number of Warrants: [•]
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Date: July
[•]
, 2017
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1. |
Exercise of Warrants
.
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2. |
Anti-Dilution Protection
.
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(i) |
“
Current Market Price per Share
”, at any date, means the price per share of Common Stock (denominated in Canadian dollars based, if necessary, on the daily average rate of exchange as reported by the Bank of Canada) equal to the VWAP for the five trading-days preceding such date (i) on the TSX, or (ii) if the Common Stock is not traded on the TSX, on any other recognized stock exchange, or (iii) if the Common Stock is not traded on a recognized stock exchange, on the over-the-counter market. If the Common Stock is not then traded in the over-the-counter market or on a recognized stock exchange, the Current Market Price of the Common Stock shall be the fair market value of the Common Stock as determined in good faith by the board of directors of the Company after consultation with an internationally recognized investment dealer or investment banker;
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(ii) |
“
director
” means a director of the Company from time to time and reference herein to an “
action by the directors
” means an action by the directors of the Company as a board or, whenever duly empowered, an action by a committee of directors;
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(iii) |
“
Dividends Paid in the Ordinary Course
” means dividends paid on the Common Stock in any fiscal year of the Company in cash, provided that the amount of such dividends does not in such fiscal year exceed 50% of the consolidated net income of the Company before extraordinary items for the period of 12 consecutive months ended immediately prior to the first day of such fiscal year less the amount of all cash dividends payable on all shares ranking prior to or on a parity with the Common Stock in respect of the payment of dividends (such consolidated net income, extraordinary items and dividends to be shown in the audited consolidated financial statements of the Company for such period of 12 consecutive months or if there are no audited consolidated financial statements for such period, computed in accordance with generally accepted accounting principles, consistent with those applied in the preparation of the most recent audited consolidated financial statements of the Company);
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(iv) |
“
recognized stock exchange
” means a stock exchange or quotation system recognized by the Canadian Securities Administrators;
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(v) |
“
TSX
” means the Toronto Stock Exchange; and
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(vi) |
“
VWAP
”, for any period, means the volume weighted average trading price of the Common Stock, calculated by dividing the total value by the total volume of Common Stock traded for the trading days included in the relevant period.
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(a) |
If and whenever at any time prior to the Time of Expiry the Company shall:
|
(i) |
declare a dividend or make a distribution on the Common Stock payable in Common Stock (or securities exchangeable for or convertible into Common Stock)
|
(ii) |
subdivide, redivide or change the outstanding Common Stock into a greater number of shares of Common Stock; or
|
(iii) |
reduce, combine or consolidate the outstanding Common Stock into a lesser number of shares of Common Stock,
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(b) |
If and whenever at any time prior to the Time of Expiry the Company shall fix a record date for the issuing of rights, options or warrants to all or substantially all of the holders of the Common Stock entitling them for a period expiring not more than forty-five (45) days after such record date (the “
Rights Period
”) to subscribe for or purchase Common Stock (or securities convertible into or exchangeable for Common Stock) at a price per share (or having a conversion or exchange price per share) which is less than 95% of the Current Market Price per Share as of three trading days prior to the record date for such issue (any of such events being called a “
Rights Offering
”), then effective immediately after the end of the Rights Period the Exercise Price shall be adjusted to a price determined by multiplying the applicable Exercise Price in effect at the end of the Rights Period by a fraction the numerator of which shall be the sum of:
|
(i) |
the number of shares of Common Stock outstanding as of the record date for the Rights Offering; and
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(ii) |
a number determined by dividing (A) either (i) the product of the number of shares of Common Stock issued or subscribed during the Rights Period upon exercise of the rights, warrants or options under the Rights Offering and the price at which such Common Stock is offered, or (ii) as the case may be, the product of the number of shares of Common Stock for or into which the convertible or exchangeable securities offered during the Rights Period upon exercise of the rights, warrants or options under the Rights Offering are exchangeable or convertible and the exchange or conversion price of the convertible or exchangeable securities so issued, by (B) the Current Market Price per Share as of three trading days prior to the record date for the Rights Offering, and
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(c) |
If and whenever at any time prior to the Time of Expiry the Company shall fix a record date for the payment, issue or distribution to all or substantially all of the holders of the Common Stock of (i) a dividend, (ii) any property, cash or assets (including evidences of indebtedness), or (iii) rights, options, warrants, or other securities (including, without limitation, securities convertible into or exchangeable for Common Stock), and such payment, issue or distribution does not constitute a Dividend Paid in the Ordinary Course, a Common Stock Reorganization or a Rights Offering, the Exercise Price shall be adjusted effective immediately after such record date to a price determined by multiplying the applicable Exercise Price in effect on such record date by a fraction:
|
(i) |
the numerator of which shall be:
|
(1) |
the product of the number of shares of Common Stock outstanding on such record date and the Current Market Price per Share as of three trading days prior to such record date; less
|
(2) |
the aggregate fair market value, as determined by action by the directors (whose determination shall be conclusive) and subject to the prior approval of the TSX and any other stock exchange or market on which the Common Stock may be listed or traded, to the holders of the Common Stock of such dividend, property, cash, assets, rights, options, warrants or other securities so paid, issued or distributed less the aggregate fair market value, as determined by action of the directors (whose determination shall be conclusive) and subject to the prior approval of the TSX and any other stock exchange or market on which the Common Stock may be listed or traded, of the consideration, if any, received therefor by the Company, and
|
(ii) |
the denominator of which shall be the number of shares of Common Stock outstanding on such record date multiplied by the Current Market Price per Share as of three trading days prior to such record date.
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(d) |
If and whenever at any time prior to the Time of Expiry there shall be a reorganization, reclassification or other change of Common Stock at any time outstanding or change of the Common Stock into other shares or into other securities (other than a Common Stock Reorganization), or a consolidation, amalgamation, arrangement or merger of the Company with or into any other corporation or other entity, or a sale, lease, exchange or transfer of all or substantially all of the undertaking or assets of the Company to another person in which the holders of Common Stock are entitled to receive shares, other securities or property, including cash (any of such events being herein called a “
Capital Reorganization
”), if the Holder exercises its right to subscribe for and purchase Common Stock pursuant to the exercise of the Warrants after the effective date of such Capital Reorganization then the Holder shall be entitled to receive, and shall accept for the same aggregate consideration in lieu of the number of shares of Common Stock to which the Holder was theretofore entitled upon such exercise, the aggregate number of shares, other securities or other property, including cash, which it would have received as a result of such Capital Reorganization had the Holder exercised its right to acquire Common Stock immediately prior to the effective date or record date, as the case may be, of the Capital Reorganization and had the Holder been the holder of such Common Stock on such effective date or record date, as the case may be.
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(e) |
If determined appropriate by the directors, acting reasonably, and subject to any required prior approval of the TSX and any other stock exchange or market on which the Common Stock may be listed or traded, appropriate adjustments shall be made in the application of the provisions set forth in this subsection 2.2, with respect to any shares, other securities or other property, including cash, deliverable upon the exercise of any Warrant. Any such adjustments shall be made by and set forth in an agreement supplemental hereto approved by action by the directors, acting reasonably, and shall for all purposes be conclusively deemed to be appropriate adjustments.
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(f) |
If and whenever at any time prior to the Time of Expiry there shall occur a Common Stock Reorganization which results in an adjustment to the Exercise Price pursuant to the provisions of this subsection 2.2, the number of shares of Common Stock issuable (at the adjusted Exercise Price) upon the exercise of Warrants shall be adjusted contemporaneously with the adjustment of the Exercise Price by multiplying the number of shares of Common Stock theretofore issuable on the exercise thereof by a fraction, the numerator of which shall be the applicable Exercise Price in effect immediately prior to such adjustment and the denominator of which shall be the applicable Exercise Price resulting from such adjustment.
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(g) |
In case the Company after the date of issue of the Warrants shall take any action affecting the Common Stock, other than action described above in this subsection 2.2, which in the opinion of the directors, acting reasonably, would materially affect the rights of the Holder and/or the acquisition rights of the Holder, then that number of shares of Common Stock which are to be received upon the exercise of the Warrants shall be adjusted in such manner, if any, and at such time, by action of the directors, acting reasonably, as they may determine to be equitable to the Holder in the circumstances, but subject in all cases to any necessary regulatory approval, including the prior consent of the TSX and any other stock exchange or market on which the Common Stock may be listed or traded.
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(a) |
no adjustment to the Exercise Price shall be required unless such adjustment would result in a change of at least 1% in the prevailing Exercise Price and no adjustment in the number of shares of Common Stock issuable upon exercise of the Warrants will be required to be made unless the cumulative effect of such adjustment or adjustments would change the number of shares of Common Stock issuable upon the exercise of a Warrant by at least one share of Common Stock and, for greater clarity, any adjustment which, except for the qualification of this section, would otherwise have been required to be made shall be carried forward and taken into account in any subsequent adjustment; provided, however, that in no event shall the Company be obligated to issue fractional shares of Common Stock or fractional interests in Common Stock upon exercise of a Warrant;
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(b) |
if a dispute shall at any time arise with respect to adjustments to the Exercise Price or the number of shares of Common Stock issuable pursuant to the exercise rights represented by a Warrant, such disputes shall be conclusively determined by the Company’s auditors or, if they are unable or unwilling to act, by such other firm of independent chartered accountants as may be selected by action by the directors and any such determination shall, absent manifest or clerical error, be conclusive evidence of the correctness of any adjustments made; and
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(c) |
if the Company shall set a record date to determine the holders of its Common Stock for the purpose of entitling them to receive any dividend or distribution or any subscription or purchase rights, options or warrants and shall thereafter and before the distribution to such shareholders of any such dividend, distribution or subscription or purchase rights legally abandon its plan to pay or deliver such dividend, distribution or subscription or purchase rights, then no adjustment in the Exercise Price or the number of shares of Common Stock issuable upon exercise of the Warrants shall be required by reason of the setting of such record date.
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3. |
Covenants by the Company
.
|
(a) |
it will reserve and there will remain unissued out of its authorized capital, solely for the purpose of issuing upon the exercise of the Warrants, a sufficient number of shares of Common Stock to satisfy the rights of acquisition provided for in this Warrant Certificate;
|
(b) |
all shares of Common Stock issued upon exercise of the right to purchase provided for herein shall, upon payment of the Exercise Price therefor, be duly authorized and issued as fully paid and non-assessable shares of Common Stock;
|
(c) |
it will make all requisite filings under applicable securities legislation in connection with the issuance of Common Stock upon exercise of the Warrants;
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(d) |
it will at all times, so long as any of the Warrants evidenced by this Warrant Certificate remain outstanding use its reasonable commercial efforts to do and cause to be done all things necessary to maintain its status as a reporting issuer not in default under the laws of the Provinces of British Columbia, Alberta and Ontario; and
|
(e) |
it will at its expense and as expeditiously as possible, use its reasonable commercial efforts to cause all shares of Common Stock issuable upon the exercise of the Warrants to be duly listed on the TSX and/or any other recognized stock exchange upon which the Common Stock may be then listed prior to the issuance of such shares.
|
4. |
Representations and Warranties of the Company
.
|
(a) |
it is duly authorized and has all necessary corporate power and authority to create and issue the Warrants evidenced hereby and the Common Stock issuable upon the exercise of the Warrants;
|
(b) |
this Warrant Certificate has been duly executed and the Warrants evidenced hereby represent valid, legal and binding obligations of the Company enforceable in accordance with their terms, and the Company has the power and authority to issue this certificate and to perform each of its obligations as herein contained; and
|
(c) |
the execution and delivery of this Warrant Certificate by the Company are not, and the issuance of the Common Stock upon exercise of the Warrants in accordance with the terms hereof, will not be, inconsistent with the Company’s constating documents, and do not and will not contravene any provision of, or constitute a default under, any applicable law or any indenture, mortgage, contract or other instrument of which the Company is a party or by which it is bound.
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5. |
Transfer of Warrants
.
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6. |
Replacement
.
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7. |
Expiry
.
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8. |
Time
.
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9. |
Governing Law
.
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10. |
Legends on Common Stock
.
|
11. |
Amendments
.
|
12. |
Miscellaneous Interpretation Matters
.
|
(a) |
The division of this Warrant Certificate into sections and subsections and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation hereof.
|
(b) |
Unless otherwise expressly provided or unless the context otherwise requires, words importing the singular include the plural and vice versa and words importing gender include all genders.
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(c) |
The use of the words, “includes” or “including” shall be deemed to mean “includes, without limitation”, or “including, without limitation”, as applicable, in each case whether or not they are in fact followed by such words or words of like import.
|
(d) |
For the purposes hereof, “business day” means any day except Saturday, Sunday or a statutory holiday in Vancouver, British Columbia and, if any period expires or any day on which any action is to be taken under this Warrant Certificate falls on a day which is not a business day, it shall be deemed to refer to the next business day.
|
13. |
Severability
.
|
14. |
Enurement
.
|
15. |
Language
.
|
16. |
General
.
|
SILVER BULL RESOURCES, INC.
|
|
Name:
Sean Fallis
Title:
Chief Financial Officer
|
(i) | Number of Warrants to be exercised: | ||
(ii) | Number of shares of Common Stock: | ||
(iii) | Exercise Price: | ||
(iv) | Aggregate Purchase Price [(ii) multiplied by (iii)]: | $ |
|
Per:
|
|
|
|
|
|
|
|
Direction as to Registration
|
|
|
Name of Registered Holder:
|
|
|
Address of Registered Holder:
|
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