UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of
the Securities Exchange Act of 1934
Date of report (Date of earliest event reported): November
24, 2014
INTERNATIONAL TOWER HILL MINES LTD.
(Exact Name of Registrant as Specified in Charter)
British Columbia, Canada |
001-33638 |
N/A |
(State or Other Jurisdiction |
(Commission |
(IRS Employer |
of Incorporation) |
File Number) |
Identification No.) |
1177 West Hastings Street, Suite 2300 |
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Vancouver, British Columbia, Canada |
V6E 2K3 |
(Address of Principal Executive Offices) |
(Zip Code) |
Registrants telephone number, including area code: (604)
683-3332
(Former Name or Former Address, if Changed Since Last Report.)
Check the appropriate box below if the Form 8-K filing is
intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions (see General Instruction A.2. below):
[ ] Written communications pursuant to Rule 425
under the Securities Act (17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12
under the Exchange Act (17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to
Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to
Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01 Entry into a Material Definitive Agreement.
On November 24, 2014, International Tower Hill Mines Ltd. (the
Company) entered into subscription agreements relating to a non-brokered
private placement of 18,245,000 common shares of the Company at a price of CAD
0.46 per share, for anticipated aggregate gross proceeds of approximately CAD
8.4 million. The offering will be taken up by certain of the Companys current
institutional shareholders and certain directors and members of management.
The private placement is anticipated to close on or before
December 12, 2014, subject to customary closing conditions, including approval
of the offering by the Toronto Stock Exchange and the NYSE MKT. The Company
intends to use the net proceeds of the private placement for advancement of
optimization studies on the Livengood Gold Project in Alaska and for general
working capital purposes.
The subscription agreements contain customary representations
and warranties, covenants and conditions to closing that the parties made to,
and solely for the benefit of, each other in the context of all of the terms and
conditions of the subscription agreements and in the context of the specific
relationship between the parties. The provisions of the subscription agreements,
including the representations and warranties contained therein, are not for the
benefit of any party other than the parties to such agreements and are not
intended as documents for investors and the public to obtain factual information
about the current state of affairs of the Company.
The foregoing description of the subscription agreements is not
complete and is qualified in its entirety by the full text of the subscription
agreements, a form of which is filed herewith as Exhibit 10.1 and incorporated
into this Item 1.01 by reference.
Item 3.02 Unregistered Sales of Equity Securities.
The disclosure set forth in Item 1.01 of this Current Report is
incorporated in this Section 3.02 by reference. The Company is relying on the
exemptions from registration under Section 4(a)(2) of the Securities Act of
1933, as amended (the Securities Act), and Regulation S under the Securities
Act for purposes of the private placement of the common shares. The common
shares to be issued have not been and will not be registered under the
Securities Act or any applicable securities laws of any state of the United
States and may not be offered or sold in the United States or to, or for the
account or benefit of, U.S. persons (as defined in Regulation S under the
Securities Act) or persons in the United States absent registration or an
applicable exemption from such registration requirements.
Item 8.01 Other Events.
On November 24, 2014, the Company issued a press release
regarding the non-brokered private placement. A copy of the press release is
attached to this report as Exhibit 99.1.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
International Tower Hill Mines Ltd.
(Registrant)
Dated: November 24, 2014 |
By: |
/s/ Tom S. Q. Yip |
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Name: |
Tom S. Q. Yip |
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Title: |
Chief Financial Officer
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Exhibit Index
INTERNATIONAL TOWER HILL MINES LTD.
SUBSCRIPTION AGREEMENT
(SHARES NON-BROKERED)
INSTRUCTIONS
All Subscribers:
1. |
Complete and sign pages i and ii of the Subscription
Agreement. |
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2. |
If you are a portfolio manager resident outside of Canada
and you are not purchasing securities with an aggregate acquisition cost
of at least $150,000, complete and sign the Accredited Investor
Certificate Appendix I to Schedule A |
All Canadian Residents:
1. |
Complete and sign the Canadian Exemption Certificate
Schedule A, and if you are an Accredited Investor, complete and
sign the Accredited Investor Certificate Appendix I to Schedule
A |
All U.S. Purchasers (as defined herein):
1. |
Complete and sign the U.S. Accredited Investor
Certificate Schedule B |
PLEASE DELIVER YOUR COMPLETED AND ORIGINALLY EXECUTED COPY
OF, AND THE OTHER DOCUMENTS REQUIRED TO BE DELIVERED WITH, THIS SUBSCRIPTION
AGREEMENT TO THE CORPORATION, ATTENTION MARLA K. RITCHIE (FAX NO.
1-604-408-7499 OR mritchie@ithmines.com) AS SOON AS POSSIBLE.
THE SHARES OFFERED HEREBY HAVE NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE 1933
ACT) OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND MAY NOT BE
OFFERED OR SOLD UNLESS REGISTERED UNDER THE 1933 ACT AND ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR PURSUANT TO AN EXEMPTION
FROM SUCH REGISTRATION REQUIREMENTS. HEDGING TRANSACTIONS INVOLVING THE SHARES
OFFERED HEREBY MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE 1933 ACT.
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TO: |
International Tower Hill Mines Ltd. (the
Corporation) of Suite 2300 1177 West Hastings Street, Vancouver,
BC V6E 2K3 |
The undersigned (the Subscriber) on its own behalf or,
if applicable, on behalf of the disclosed purchaser who is identified by name
and on whose behalf the Subscriber, as agent, is purchasing hereunder (the
Disclosed Purchaser), hereby irrevocably subscribes for and agrees to
purchase from the Corporation, on and subject to the terms and conditions
attached hereto, that number of common shares without par value in the capital
stock of the Corporation (Common Shares) set forth below, for the
aggregate subscription price set forth below at a subscription price of $0.46
per share (the Purchase Price). Attached as Appendix 1 to this
Agreement are the terms and conditions of the sale of the Purchased Securities
(as defined herein) and the representations, warranties, certifications and
covenants hereby made by the Subscriber and the Corporation, all of which
Appendix 1 forms part of and is hereby incorporated by reference into this
Agreement (the Terms and Conditions).
The Offering (as defined herein) is subject to, among other
things, the Corporation obtaining conditional acceptance from The Toronto Stock
Exchange (the TSX) to list the Offered Securities (as defined herein)
and consent for the Offering from the NYSE MKT LLC (NYSE MKT and,
together with the TSX, the Exchanges).
Number of Common Shares subscribed for
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Subscribers Total Subscription
Funds |
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Execution by the Subscriber (Please also ensure all
schedules (as applicable) are completed and executed (see
Instructions on the first page of this
Agreement)):
EXECUTED by the Subscriber this _________ day of
___________________, 2014.
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Signature of Subscriber (if Subscriber is an individual) or
of |
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(Subscribers Residential or Head Office
Address) (please print) |
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the Authorized Signatory (if Subscriber is not an
individual) |
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Name of Subscriber (please print) |
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Name and Official Capacity or Title of Authorized Signatory
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(Telephone Number) |
(please print) |
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(Facsimile Number) |
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IF YOU ARE SIGNING THIS
AGREEMENT AS AGENT FOR A
DISCLOSED
PURCHASER PLEASE PROVIDE THE |
FOLLOWING
INFORMATION FOR EACH DISCLOSED
PURCHASER |
Details of Disclosed Purchaser, if applicable
Name of Disclosed Purchaser (please print) |
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Disclosed Purchasers Residential
or Head Office Address |
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(Telephone Number) |
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(Facsimile Number) |
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Registration Instructions (if other than in name
of Subscriber): |
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Certificate Delivery Instructions (if
other than the address above): |
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Name and Address (as it should appear on the
certificates) |
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Address |
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Account reference, if applicable |
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Account reference, if applicable |
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Address of Intermediary |
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Contact Name |
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Telephone Number |
The Purchased Securities will be subject to a hold period in
Canada of four months from the Closing Date pursuant to applicable securities
laws. The certificates evidencing the Purchased Securities will bear a legend to
that effect, as applicable. Consequently, the Purchased Securities will be
subject to resale restrictions during such period. Additional restrictions will
apply to Purchased Securities purchased by persons in the United States or
purchasing for the account or benefit of persons in the United States, as
described in Schedule B. You are advised to consult your own legal advisors in
this regard.
Present Ownership of Securities
The Subscriber or Disclosed Purchaser, as the case may be,
either [check appropriate box]:
[ ] |
owns directly or indirectly, or
exercises control or direction over, no common shares in the capital stock
of the Corporation or securities convertible into common shares in the
capital stock of the Corporation; or |
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[ ] |
owns directly or indirectly, or
exercises control or direction over, common shares in the capital stock of
the Corporation and convertible securities entitling the Subscriber to
acquire an additional common shares in the capital stock of the
Corporation. |
Insider
The Subscriber or Disclosed Purchaser, as the case may be, is
either [check appropriate box]:
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an Insider as such term is
defined in the Company Manual of the TSX; or |
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is not an Insider as so
defined. |
- iii -
This Agreement is accepted by International Tower Hill Mines
Ltd., subject to the Terms and Conditions,
this
day of ______________________, 2014.
INTERNATIONAL TOWER HILL MINES LTD.
Per:
____________________________________________
Authorized Signatory
APPENDIX 1
TERMS AND CONDITIONS OF THE OFFERING
THE TERMS AND CONDITIONS OF THE OFFERING ARE AS FOLLOWS:
1.
Definitions
Definitions: In this Agreement, unless the context
otherwise requires:
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(a) |
1933 Act means the United States Securities Act of
1933, as amended; |
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(b) |
Accredited Investor has the meaning ascribed to such
term in National Instrument 45-106; |
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(c) |
Agreement means the subscription agreement of which
this Appendix 1 forms part, and includes all other schedules and
appendices attached thereto, in each case, as the same may be amended,
supplemented or restated from time to time; |
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(d) |
Business Day means a day on which Canadian chartered
banks are open for the transaction of regular business in the City of
Vancouver, British Columbia; |
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(e) |
Closing means the closing of the purchase and sale of
the Offered Securities which may, at the discretion of the Corporation,
occur in one or more tranches; |
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(f) |
Closing Date means the date or dates (as applicable) of
Closing, which will be such date or dates (as applicable) as the
Corporation may determine following receipt by the Corporation of all
required regulatory acceptances/approvals; |
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(g) |
Commissions means the provincial securities commission
or other regulatory authority in each of the Offering
Jurisdictions; |
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(h) |
Common Shares means the common shares without par value
in the capital stock of the Corporation as constituted on the date
hereof; |
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(i) |
Corporation means International Tower Hill Mines Ltd.,
a company incorporated under the Business Corporations Act (British
Columbia) and includes any successor corporation thereto; |
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(j) |
CRA means the Canada Revenue Agency; |
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(k) |
Directed Selling Efforts means directed selling
efforts as defined under Regulation S; |
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(l) |
Disclosed Purchaser means the person on whose behalf
the Subscriber, as agent, is purchasing hereunder, if any; |
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(m) |
Distribution Compliance Period means the distribution
compliance period as defined under Rule 902(f) of Regulation S; |
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(n) |
Distributor means a distributor as defined in Rule
902(d) of Regulation S; |
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(o) |
Dollars or $ means lawful money of Canada; |
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(p) |
General Solicitation or General Advertising means
general solicitation or general advertising, as used under Rule 502(c)
of Regulation D, including any advertisements, articles, notices or other
communications published in any newspaper, magazine or similar media or
broadcast over radio or television, or any seminar or meeting whose
attendees had been invited by general solicitation or general
advertising; |
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(q) |
National Instrument 45-106 means National Instrument
45-106 Prospectus and Registration Exemptions of the Canadian Securities
Administrators; |
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(r) |
Offered Securities means up to 20,567,341 Common Shares
offered for sale by the Corporation pursuant to the Offering; |
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(s) |
Offering means the offering of the Offered Securities
on a private placement basis; |
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(t) |
Offering Jurisdictions means collectively the provinces
of British Columbia, Alberta and Ontario, the United States and such other
jurisdictions as may be agreed to by the Corporation; |
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(u) |
Person means an individual, a firm, a corporation, a
syndicate, a partnership, a trust, an association, an unincorporated
organization, a joint venture, an investment club, a government or an
agency or political subdivision thereof and every other form of legal or
business entity of whatsoever nature or kind; |
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(v) |
Personal Information means any 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 and without limiting the foregoing, but for greater clarity
in this Agreement, means information about an identifiable individual,
including but not limited to any information about the Subscriber and, if
applicable, any Disclosed Purchaser, and includes information provided by
the Subscriber in this Agreement; |
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(w) |
Purchase Price means $0.46 per Offered
Security; |
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(x) |
Purchased Securities means the Common Shares which the
Subscriber has agreed to purchase under this Agreement; |
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(y) |
Regulation D means Regulation D promulgated under the
1933 Act; |
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(z) |
Regulation S means Regulation S promulgated under the
1933 Act; |
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(aa) |
Regulatory Authorities means the Commissions and the
Exchanges; |
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(bb) |
Securities Laws means the securities legislation and
regulations of, and the instruments, policies, rules, orders, codes,
notices and interpretation notes of each of the Commissions; |
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(cc) |
Subscriber means the Person purchasing the Purchased
Securities, whose name appears on the execution page of the Agreement and
who has signed the Agreement or, if the Person whose name appears on the
execution pages hereof has signed the Agreement as agent for or on behalf
of a Disclosed Purchaser and is not purchasing the Purchased Securities as
principal, the Disclosed Purchaser as identified on page ii of the
Agreement; |
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(dd) |
Subscription Proceeds means the aggregate Purchase
Price paid by the Subscriber for the Purchased Securities; |
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(ee) |
U.S. Accredited Investor means an accredited investor
that satisfies one or more of the criteria set forth in Rule 501(a) of
Regulation D; |
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(ff) |
U.S. Person means U.S. person as defined in Rule
902(k) of Regulation S; |
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(gg) |
U.S. Purchaser means (i) any person resident in the
United States; (ii) any U.S. Person; (iii) any person purchasing the
Purchased Securities for the account or benefit of a U.S. Person or person
in the United States; (iv) any person that receives or received an offer
of the Purchased Securities while in the United States; or (iv) any person that was (or
whose authorized signatory was) in the United States at the time their buy
order was originated or this Agreement was executed. U.S. Purchaser does
not include persons excluded from the definition of U.S. Person pursuant
to Rule 902(k)(2)(vi) of Regulation S or persons holding accounts excluded
from the definition of U.S. Person pursuant to Rule 902(k)(2)(i) of
Regulation S, solely in their capacities as holders of such accounts;
and |
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(hh) |
United States means the United States of America, its
territories and possessions, any state of the United States and the
District of Columbia. |
2.
Conditions of the Offering
In connection with your purchase of the Purchased Securities,
you agree to return to the Corporation as soon as possible the following
documents:
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(a) |
this Agreement, duly completed and executed; |
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(b) |
a certified cheque, bank draft or wire transfer for the
aggregate Purchase Price of the Purchased Securities payable to the
Corporation; |
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(c) |
if you are, or, if applicable, the Disclosed Purchaser
is, a resident of Canada, a duly completed Canadian Exemption Certificate,
attached as Schedule A hereto, and if you are, or, if applicable, the
Disclosed Purchaser is, an Accredited Investor, a duly executed and
completed Accredited Investor Certificate, attached as Appendix I to
Schedule A hereto; |
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(d) |
if you are a portfolio manager resident outside of Canada
and you are not purchasing sufficient Offered Securities so that the
aggregate acquisition cost of the Purchased Securities is $150,000, a duly
executed and completed Accredited Investor Certificate, attached as
Appendix I to Schedule A hereto; |
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(e) |
if you are, or, if applicable, the Disclosed Purchaser
is, in the United States or purchasing for the benefit or account of a
person in the United States, a duly executed and completed U.S. Accredited
Investor Certificate, attached as Schedule B hereto; and |
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(f) |
any further documentation as required to be provided by
the Subscriber under the Securities Laws or by the policies of the
Exchanges or other Regulatory Authorities in connection with the purchase
and sale of the Purchased Securities. |
The obligation of the Corporation to sell the Purchased
Securities to you is subject to, among other things, the conditions that:
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(a) |
you having executed and returned all documents required
by the Securities Laws and the policies of the Exchanges for delivery on
your behalf, including the forms set out in Schedule A and Schedule B
attached hereto, as applicable, to the Corporation, as the sale of the
Purchased Securities by the Corporation to you will not be qualified by a
prospectus; |
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(b) |
the representations and warranties made by you on your
own behalf or, if applicable, on behalf of the Disclosed Purchaser
(including representations and warranties made in any Schedule attached
hereto, as applicable) being true and correct when made and true and
correct on the Closing Date with the same force and effect as if they had
been made on and as of such date; |
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(c) |
all covenants, agreements and conditions contained in
this Agreement to be performed by you or, if applicable, the Disclosed
Purchaser on or prior to the Closing Date having been performed or
complied with in all material respects; |
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(d) |
the Corporation receives conditional acceptance of notice
of the Offering and conditional approval for the listing of the Offered
Securities from the TSX and approval for the listing of the Offered
Securities from NYSE MKT; and |
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(e) |
all other necessary regulatory approvals having been
obtained by the Corporation prior to the Closing
Date. |
The obligation of the Subscriber and, if applicable, the
Disclosed Purchaser to purchase the Purchased Securities from the Corporation is
subject to, among other things, the conditions that:
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(a) |
the representations and warranties made by the
Corporation being true and correct when made and true and correct on the
Closing Date with the same force and effect as if they had been made on
and as of such date; |
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(b) |
all covenants, agreements and conditions contained in
this Agreement to be performed by the Corporation on or prior to the
Closing Date having been performed or complied with in all material
respects; |
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(c) |
the Corporation receives conditional acceptance of notice
of the Offering and conditional approval for the listing of the Offered
Securities from the TSX and approval for the listing of the Offered
Securities from NYSE MKT; and |
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(d) |
all other necessary regulatory approvals having been
obtained by the Corporation prior to the Closing
Date. |
By returning this Agreement you consent on your own behalf or,
if applicable, on behalf of the Disclosed Purchaser, to the filing by the
Corporation of all documents and personal information concerning you or, if
applicable, the Disclosed Purchaser, provided in this Agreement required by the
Securities Laws and the policies of the Exchanges.
If you are not subscribing for the Purchased Securities for
your own account, each Disclosed Purchaser for whom you are contracting
hereunder must be purchasing the Purchased Securities as principal, for such
Disclosed Purchasers own account, and (unless you are an authorized agent with
power to sign on behalf of the beneficial purchaser) must execute all documents
required by the Securities Laws of the Offering Jurisdictions and the policies
of the Exchanges with respect to the Purchased Securities being acquired by such
Disclosed Purchaser as principal. If you are signing this Agreement as agent or
pursuant to a power of attorney for the Subscriber, you represent and warrant
that you have authority to bind the Subscriber.
You agree, and you agree to cause any Disclosed Purchaser for
whom you are contracting hereunder, to comply with all Securities Laws and with
the policies of the Exchanges concerning the purchase of, the holding of, and
the resale restrictions applicable to, the Purchased Securities.
You acknowledge on your own behalf or, if applicable, on behalf
of the Disclosed Purchaser, that the Corporation has the right to close the
subscription books at any time without notice and to accept or reject any
subscription in its sole discretion.
3.
The Purchased Securities
The Purchased Securities will be issued and registered in the
name of the Subscriber or its nominee in accordance with the instructions
provided by the Subscriber on page ii of this Agreement.
The issue of the Purchased Securities will not restrict or
prevent the Corporation from obtaining any other financing, or from issuing
additional securities, options, warrants or rights.
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4.
The Closing
Subject to receipt of all completed documentation and the
satisfaction or waiver by the relevant party of the conditions to the purchase
and sale of the Purchased Securities in accordance with section 2, the Closing
of the purchase and sale of the Offered Securities will take place at the
offices of the Corporation, Suite 2300, 1177 West Hastings Street, Vancouver,
British Columbia V6E 2K3, at 10:00 a.m. (Vancouver time) on the Closing Date, or
at such other place and time as the Corporation may determine. Certificates
representing the Purchased Securities will be available for delivery to you
against payment to the Corporation of the amount of the Purchase Price for the
Purchased Securities in freely transferable funds.
The Subscriber acknowledges that the Offering may be completed
at one or more partial closings in the discretion of the Corporation and that
the Closing as contemplated in this Agreement may be effected at one or more of
such partial closings.
Upon completion of the Closing, the Corporation is irrevocably
entitled to the Purchase Price for the Purchased Securities, subject to the
rights of the Subscriber under this Agreement and any applicable laws.
5.
Representations and Warranties of the Subscriber
The sale of the Purchased Securities by the Corporation to the
Subscriber is conditional upon such sale being exempt from the requirements as
to the filing of a prospectus or registration statement and as to the
preparation of an offering memorandum or similar document contained in any
statute, regulation, instrument, rule or policy applicable to the sale of the
Purchased Securities or upon the issue 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.
The Subscriber and, if applicable, the Disclosed Purchaser
through the Subscriber acting as its agent, acknowledges, represents, warrants,
covenants and certifies to and with the Corporation that, as at the date given
above and at the Closing Date:
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(a) |
the Corporation has advised you that the Corporation is
relying on exemptions from the requirements under the Securities Laws to
provide you with a prospectus or registration statement and no prospectus
or registration statement has been filed by the Corporation with any of
the Commissions in connection with the issuance of the Purchased
Securities, and as a consequence: |
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(i) |
you are restricted from using most of the civil remedies
available under the Securities Laws and certain protections, rights and
remedies provided by the Securities Laws, including statutory rights of
rescission or damages, will not be available to you; |
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(ii) |
you may not receive information that would otherwise be
required to be provided to you under the Securities Laws; and |
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(iii) |
the Corporation is relieved from certain obligations that
would otherwise apply under the Securities Laws; |
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(b) |
you are resident in the jurisdiction set out under
Subscribers Residential or Head Office Address on the first page of
this Agreement or under Disclosed Purchasers Residential or Head Office
Address on the second page of this Agreement (if applicable), which
address is your residence or principal place of business, and such address
was not obtained or used solely for the purpose of acquiring the Purchased
Securities; |
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(c) |
you are: |
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(i) |
purchasing the Purchased Securities as principal for your
own account or, in the case section 5(d)(i) below applies, are deemed
under the applicable Securities Laws to be purchasing as principal, and
not for the benefit of any other person; or |
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(ii) |
purchasing the Purchased Securities as agent for the
Disclosed Purchaser and the Disclosed Purchaser for whom you may be acting
is purchasing the Purchased Securities as principal for its own account
and not for the benefit of any other Person; |
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(d) |
if you are resident in any province or territory in
Canada you: |
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(i) |
are an Accredited Investor, by virtue of the fact that
you fall within one or more of the sub-paragraphs of the definition of
Accredited Investor set out in the Accredited Investor Certificate
attached as Appendix I to Schedule A , you confirm the truth and accuracy
of all statements in such schedule as of the date of this Agreement and
the Closing Date, and you were not created or used solely to purchase
securities as an Accredited Investor as described in paragraph (m) of the
definition of Accredited Investor set out in Schedule A; or |
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(ii) |
are purchasing sufficient Offered Securities so that the
aggregate acquisition cost of the Purchased Securities is not less than
$150,000 and, if you are not an individual, you were not created solely to
purchase or hold securities in reliance on section 2.10 of National
Instrument 45-106; |
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(e) |
if you are a portfolio manager resident outside of Canada
and you are not purchasing sufficient Offered Securities so that the
aggregate acquisition cost of the Purchased Securities is $150,000, you
have completed an Accredited Investor Certificate, attached as Appendix I
to Schedule A hereto and you confirm the truth and accuracy of all
statements in such schedule as of the date of this Agreement and the
Closing Date; |
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(f) |
if you are not an individual, you pre-existed the
offering of the Offered Securities and you have a bona fide
business purpose other than the investment in the Offered Securities
and you were not created, formed or established solely or primarily to
acquire Offered Securities, or permit purchases of securities without a
prospectus, in reliance on an exemption from the prospectus requirements
of applicable Securities Laws; |
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(g) |
unless you are a U.S. Purchaser and have completed and
delivered the U.S. Accredited Investor Certificate attached as Schedule B
hereto (in which case you have properly completed, executed and delivered
to the Corporation such U.S. Accredited Investor Certificate and make the
representations, warranties and covenants therein and you confirm the
truth and accuracy of all statements in such U.S. Accredited Investor
Certificate as of the date of this Agreement and the Closing Date), you
acknowledge and agree that: |
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(i) |
unless you are excluded from the definition of U.S.
Person pursuant to Rule 902(k)(2)(vi) of Regulation S or a person holding
accounts excluded from the definition of U.S. Person pursuant to Rule
902(k)(2)(i) of Regulation S, solely in your capacity as holder of such
accounts, the Offered Securities were not offered to you, or any
beneficial purchaser for whom you are acting, in the United
States; |
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(ii) |
unless you are excluded from the definition of U.S.
Person pursuant to Rule 902(k)(2)(vi) of Regulation S or a person holding
accounts excluded from the definition of U.S. Person pursuant to Rule
902(k)(2)(i) of Regulation S, solely in your capacity as holder of such
accounts, the order to purchase the Purchased Securities was made outside
the United States and this Agreement was delivered to, executed and
delivered by, you (or your authorized signatory) outside the United
States; |
- 7 -
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(iii) |
you are not a U.S. Person and you are not, and will not
be, purchasing the Purchased Securities for the account or benefit of, a
U.S. Person or a person in the United States; |
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(iv) |
the transactions contemplated hereunder have not been
pre-arranged with a buyer located in the United States or with a U.S.
Person, and the current structure of this transaction and all transactions
and activities contemplated hereunder is not a scheme to avoid the
registration requirements of the 1933 Act; |
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(v) |
you, and any beneficial purchaser for whom you are
acting, (a) have no intention to distribute either directly or indirectly
any of the Purchased Securities in the United States or to, or for the
account or benefit of, a U.S. Person or person in the United States,
except in compliance with the 1933 Act, any applicable securities laws of
any state of the United States and applicable Securities Laws, and,
without limiting the generality of the foregoing, (b) will not, directly
or indirectly offer, sell, pledge or otherwise transfer the Purchased
Securities (1) during the Distribution Compliance Period, in the United
States, to, or for the account or benefit of, a U.S. Person or person in
the United States, or otherwise in a manner that is not in compliance with
Regulation S, or (2) after the Distribution Compliance Period, otherwise
than pursuant to registration under the 1933 Act or an available exemption
therefrom and, in accordance with all applicable state and foreign
securities laws; |
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(vi) |
you, and any beneficial purchaser for whom you are
acting, have not purchased the Purchased Securities as a result of any
form of Directed Selling Efforts; |
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(vii) |
none of you, any beneficial purchaser for whom you are
acting, and any person acting on your behalf has engaged, nor will engage,
in any Directed Selling Efforts to a U.S. Person with respect to the
Purchased Securities, and you, any beneficial purchaser for whom you are
acting, and any person acting on your behalf have complied and will comply
with the offering restrictions requirements of Regulation S; |
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(viii) |
you, and any beneficial purchaser for whom you are
acting, understand that the Purchased Securities have not been registered
under the 1933 Act or the applicable securities laws of any state of the
United States, the Purchased Securities may not be offered or sold,
directly or indirectly, in the United States except pursuant to
registration under the 1933 Act and the applicable securities laws of any
state of the United States or pursuant to applicable exemptions from such
registration requirements, and the Corporation has no obligation or
present intention of filing a registration statement under the 1933 Act in
respect of any of the Purchased Securities; |
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(ix) |
you, and any beneficial purchaser for whom you are
acting, will not engage in any hedging transactions involving the
Purchased Securities before the expiration of the Distribution Compliance
Period unless in compliance with the 1933 Act; |
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(x) |
the Purchased Securities are restricted securities as
such term is defined under Rule 144 of the 1933 Act and will retain such
status following the expiration of the Distribution Compliance Period in
accordance with Rule 905 of Regulation S; |
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(xi) |
each certificate representing the Purchased Securities
will bear a legend in substantially the following form, in addition to any
other legend required to be placed thereon by applicable Securities
Laws: |
THE SECURITIES REPRESENTED BY THIS
CERTIFICATE WERE ISSUED IN AN OFFSHORE TRANSACTION TO PERSONS WHO ARE NOT U.S.
PERSONS PURSUANT TO REGULATION S UNDER THE UNITED STATES SECURITIES ACT OF 1933,
AS AMENDED (THE 1933 ACT).
- 8 -
NONE OF THE SECURITIES TO WHICH THIS
CERTIFICATE RELATES HAVE BEEN REGISTERED UNDER THE 1933 ACT, OR ANY U.S. STATE
SECURITIES LAWS, AND, UNLESS SO REGISTERED, NONE MAY BE OFFERED OR SOLD IN THE
UNITED STATES OR, DIRECTLY OR INDIRECTLY, TO U.S. PERSONS EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT OR PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN
EACH CASE ONLY IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. IN ADDITION,
HEDGING TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE CONDUCTED UNLESS IN
ACCORDANCE WITH THE 1933 ACT.
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(xii) |
you, and any beneficial purchaser for whom you are
acting, (i) acknowledge that the Corporation will refuse to register any
transfer of the Purchased Securities not made in accordance with
Regulation S or pursuant to registration under the 1933 Act or an
available exemption therefrom, and (ii) consent to the Corporation making
a notation on its records or giving instructions to any transfer agent of
the Corporation in order to implement the restrictions on transfer of the
Purchased Securities set forth in this section
5(g); |
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(h) |
if you are resident outside of Canada and the United
States, you: |
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(i) |
are knowledgeable of, or have been independently advised
as to the applicable securities laws of the securities regulatory
authorities (the Authorities) having application in the
jurisdiction in which you are resident (the International
Jurisdiction) which would apply to the acquisition of the Purchased
Securities, if any; |
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(ii) |
are purchasing the Purchased Securities pursuant to
exemptions from the prospectus and registration requirements under the
applicable securities laws of the Authorities in the International
Jurisdiction or, if such is not applicable, you are permitted to purchase
the Purchased Securities under the applicable securities laws of the
Authorities in the International Jurisdiction without the need to rely on
any exemption; |
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(iii) |
confirm that the subscription by the Subscriber does not
contravene any applicable securities laws of the Authorities in the
International Jurisdiction and does not require the Corporation to make
any filings or seek any approvals of any nature whatsoever from any
Authority of any kind whatsoever in the International Jurisdiction in
connection with the issue and sale or resale of the Purchased Securities;
and |
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(iv) |
confirm that the purchase of the Purchased Securities by
you does not trigger: |
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(A) |
an obligation by the Corporation or any other Person to
prepare and file a registration statement, prospectus or similar document,
or any other report with respect to such purchase in the International
Jurisdiction; or |
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(B) |
continuous disclosure reporting obligations of the
Corporation in the International Jurisdiction; and |
you will, if requested by the
Corporation, comply with such other requirements as the Corporation may
reasonably require;
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(i) |
the Corporation has advised you that no agency, stock
exchange or governmental agency, securities commission or similar
regulatory authority or other entity has reviewed or passed on or made any
finding or determination as to the merits of or made any recommendation or
endorsement with respect to the Purchased
Securities; |
- 9 -
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(j) |
if you are not a resident of the Province of British
Columbia, you certify to the Corporation that you are not a resident of
British Columbia and acknowledge that: |
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(i) |
no securities commission or similar regulatory authority
has reviewed or passed on or passed on the merits of the Purchased
Securities; |
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(ii) |
there is no government or other insurance covering the
Purchased Securities; |
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(iii) |
there are risks associated with the purchase of the
Purchased Securities and you are aware of the risks and other
characteristics of the Purchased Securities; |
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(iv) |
there are restrictions on your ability to resell the
Purchased Securities and it is your responsibility to find out what those
restrictions are and to comply with them before selling the Purchased
Securities; and |
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(v) |
the Corporation has advised you that it is relying on an
exemption from the requirements to provide you with a prospectus and to
sell securities through a person registered to sell securities under the
Securities Act (British Columbia) and, as a consequence of
acquiring securities pursuant to this exemption, certain protections,
rights and remedies provided by the Securities Act (British
Columbia), including statutory rights of rescission or damages, will not
be available to you; |
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(k) |
you acknowledge and consent to the fact that the
Corporation is collecting Personal Information of the Subscriber and
Disclosed Purchaser, if any, for the purpose of completing this Agreement.
You acknowledge and consent to the Corporation retaining such Personal
Information for as long as permitted or required by law or business
practices, and you agree and acknowledge that the Corporation may use and
disclose such Personal Information: |
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(i) |
for internal use with respect to managing the
relationships between and contractual obligations of the Corporation and
the Subscriber and Disclosed Purchaser, if any; |
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(ii) |
for use and disclosure for income tax-related purposes,
including, without limitation, where required by law, disclosure to
CRA; |
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(iii) |
disclosure to professional advisers of the
Corporation; |
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(iv) |
disclosure to securities regulatory authorities and other
regulatory bodies with jurisdiction with respect to reports of trade or
similar regulatory filings; |
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(v) |
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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(vi) |
disclosure to any person where such disclosure is
necessary for legitimate business reasons and is made with your prior
written consent; |
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(vii) |
disclosure to a court determining the rights of the
parties under this Agreement; and |
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(viii) |
for use and disclosure as otherwise required or permitted
by law. |
In addition, you further acknowledge
and consent to the fact that the Corporation may be required to provide any one
or more of the Canadian securities regulators, stock exchanges, the Investment
Industry Regulatory Organization of Canada, other regulatory agencies or the
Corporations registrar and transfer agent with any Personal Information
provided by the Subscriber and Disclosed Purchaser, if any, in this Agreement,
and may make any other filings of such Personal Information as the Corporations counsel deems
appropriate, and you acknowledge receipt of notification of the disclosure
of Personal Information by the Corporation to the Exchanges and the
Subscriber and Disclosed Purchaser, if any, hereby consent to and
authorize the foregoing use and disclosure of such Personal Information
and agree to provide, on request, all particulars required by the
Corporation in order to comply with the foregoing;
- 10 -
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(l) |
you further acknowledge and expressly consent
to: |
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(i) |
the disclosure of Personal Information by the Corporation
to the Exchanges and other applicable regulatory authorities, as required;
and |
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(ii) |
the collection, use and disclosure of Personal
Information by the Exchanges for such purposes as may be identified by the
Exchanges from time to time; |
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(m) |
if you are a resident of Ontario, you authorize the
indirect collection of Personal Information by the Ontario Securities
Commission and confirm that you have been notified by the
Corporation: |
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(i) |
that the Corporation will be delivering the Personal
Information to the Ontario Securities Commission; |
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(ii) |
that such Personal Information is being collected
indirectly by the Ontario Securities Commission under the authority
granted to it in applicable Securities Laws; |
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(iii) |
that such Personal Information is being collected for the
purpose of the administration and enforcement of applicable Securities
Laws; and |
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(iv) |
that the title, business address and business telephone
number of the public official in the Province of Ontario who can answer
questions about the Ontario Securities Commissions indirect collection of
the Personal Information is as follows: |
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Administrative Assistant to the Director of Corporate
Finance Ontario Securities Commission Suite 1903, Box 55, 20 Queen
Street West |Toronto, Ontario M5H 2S8 Telephone: (416)
593-3684 |
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(n) |
the funds representing the aggregate Purchase Price in
respect of the Purchased Securities which will be advanced by the
Subscriber to the Corporation hereunder will not represent proceeds of
crime for the purpose of the Proceeds of Crime (Money Laundering) and
Terrorist Financing Act |
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(Canada) (the PCMLTF Act) or the United States
Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act (the PATRIOT
Act) and you acknowledge that the Corporation may in the future be
required by law to disclose the Subscribers or Disclosed Purchasers name
and other information relating to this Agreement and the Subscribers
subscription hereunder, on a confidential basis, pursuant to the PCMLTF
Act or PATRIOT Act. To the best of your knowledge, none of the
subscription funds to be provided hereunder: |
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(i) |
have been or will be obtained or derived, directly or
indirectly, from or related to any activity that is deemed illegal under
the laws of Canada or the United States or any other jurisdiction,
or |
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(ii) |
are being tendered on behalf of a person or entity who
has not been identified to you. |
You will promptly notify the
Corporation if you discover that any such representation ceases to be true, and
will provide the Corporation with appropriate information in connection
therewith;
- 11 -
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(o) |
you have been advised to consult your own legal advisors
with respect to the applicable hold periods imposed in respect of the
Purchased Securities by the applicable Securities Laws and confirm that no
representation by the Corporation has been made respecting the hold
periods applicable to the Purchased Securities and you are solely
responsible (and the Corporation is not responsible) for compliance with
the applicable resale restrictions; |
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(p) |
no person has made to you any written or oral
representations: |
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(i) |
that any Person will resell or repurchase any of the
Purchased Securities; |
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(ii) |
that any Person will refund the Purchase Price of any of
the Purchased Securities; |
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(iii) |
as to the future price or value of any of the Purchased
Securities; or |
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(iv) |
other than as set forth in this Agreement, that any of
the Purchased Securities will be listed and posted for trading on a stock
exchange or that application has been made to list and post any of the
Purchased Securities for trading on a stock
exchange; |
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(q) |
you acknowledge that you have not received an offering
memorandum, prospectus or other disclosure document in respect of the
Purchased Securities or the Corporation describing the business and
affairs of the Corporation in order to assist you in making an investment
decision in respect of the Purchased Securities, that you have had access
to the Corporations public filings on the Internet at www.sedar.com and www.sec.gov and that you have not become aware of any
advertisement in printed media of general and regular paid circulation,
radio or television with respect to the distribution of the Purchased
Securities; |
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(r) |
you have no knowledge of a material fact or material
change (as those terms are defined in the Securities Laws) in the affairs
of the Corporation that has not been generally disclosed to the
public; |
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(s) |
your decision to tender this offer and purchase the
Purchased Securities has not been made as a result of any non-public oral
or written representation as to fact made by or on behalf of the
Corporation or any other Person and is based entirely upon the
representations, warranties and covenants of the Corporation provided to
the Subscriber in this Agreement and on currently available public
information concerning the Corporation; |
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(t) |
the offer made by this subscription is irrevocable and
requires acceptance by the Corporation and the acceptance or approval of
the Exchanges; |
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(u) |
the acceptance of this subscription offer will be
conditional upon the sale of the Purchased Securities to you being exempt
from the prospectus and registration requirements under applicable
Securities Laws; |
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(v) |
if you are: |
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(i) |
a corporation, you are duly incorporated and are validly
subsisting under the laws of your jurisdiction of incorporation and have
all requisite legal and corporate power and authority to execute and
deliver this Agreement, to subscribe for the Purchased Securities as
contemplated herein and to carry out and perform your covenants and
obligations under the terms of this Agreement and the entering into of
this Agreement and the transactions contemplated hereby will not result in
the violation of any of the terms and provisions of any law applicable to,
or the constating documents of, you or any agreement, written or oral, to
which you may be a party or by which you are or may be
bound; |
- 12 -
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(ii) |
a partnership, syndicate or other form of unincorporated
organization, you have the necessary legal capacity and authority to
execute and deliver this Agreement and to observe and perform your
covenants and obligations hereunder and have obtained all necessary
approvals in respect thereof; or |
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(iii) |
an individual, you are of full age of majority and have
the legal capacity and competence to enter into and to execute this
Agreement and to observe and perform your covenants and obligations
hereunder; |
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(w) |
this Agreement has been duly executed and delivered by
you and constitutes a legal, valid and binding obligation of you
enforceable against you; |
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(x) |
if required by applicable Securities Laws, policy or
order or by any Regulatory Authority, you will execute, deliver, file and
otherwise assist the Corporation in filing, such reports, undertakings and
other documents with respect to the issue of the Purchased Securities as
may be required; |
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(y) |
the Purchased Securities are highly speculative in nature
and you have such sophistication and experience in business and financial
matters as to be capable of evaluating the merits and risks of this
investment and you are able to bear the economic risk of loss of this
investment; |
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(z) |
this subscription is not enforceable by you unless it has
been accepted by the Corporation and you waive any requirement on the
Corporations behalf to immediately communicate its acceptance of this
subscription to you; |
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(aa) |
in connection with your subscription, you have not relied
upon the Corporation for investment, legal or tax advice, or other
professional advice, and have in all cases sought or elected not to seek
the advice of your own personal investment advisers, legal counsel and tax
advisers and you are able, without impairing your financial condition, to
bear the economic risk of, and withstand a complete loss of, the
investment and you can otherwise be reasonably assumed to have the
capacity to protect your own interest in connection with your
investment; |
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(bb) |
all costs and expenses incurred by you (including any
fees and disbursements of any special counsel or other advisors retained
by you) relating to the purchase of the Purchased Securities shall be
borne by you; |
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(cc) |
you acknowledge that legal counsel retained by the
Corporation is acting as counsel to the Corporation and not as counsel to
you and you may not rely upon such counsel in any respect; |
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(dd) |
this Agreement has been duly executed and delivered and,
when accepted by the Corporation, will constitute your legal, valid and
binding obligation enforceable against you in accordance with the terms
hereof or, if you are acting on behalf of a Disclosed Purchaser , will
constitute a legal, valid and binding obligation against such Disclosed
Purchaser in accordance with the terms hereof; and |
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(ee) |
the above representations, warranties, covenants and
acknowledgements in this section will be true and correct both as of the
execution of this subscription and as of the Closing
Date. |
The Subscriber and, if applicable, the Disclosed Purchaser
through the Subscriber acting as its agent, acknowledges and agrees that the
foregoing representations, warranties, covenants and certifications are made by
the Subscriber and, if applicable, the Disclosed Purchaser through the
Subscriber acting as its agent, with the intent that they may be relied upon in
determining its eligibility as a purchaser of the Purchased Securities under
relevant Securities Laws. The Subscriber and, if applicable, the Disclosed
Purchaser through the Subscriber acting as its agent, further agrees that by
accepting the Purchased Securities, the Subscriber and, if applicable, the
Disclosed Purchaser through the Subscriber acting as its agent, shall be
representing and warranting that the foregoing representations, warranties and
certifications contained herein or in any document furnished by the Subscriber
or, if applicable, the Disclosed Purchaser through the Subscriber acting as its
agent, to the Corporation are true as at the Closing, with the same force and effect as if they had been made by the Subscriber as
at the Closing and shall continue in full force and effect notwithstanding any
subsequent disposition by the Subscriber or Disclosed Purchaser (if applicable)
of the Purchased Securities. The Subscriber or, if applicable, the Disclosed
Purchaser through the Subscriber acting as its agent, undertakes to notify the
Corporation immediately of any changes in any representation, warranty,
certification or other information relating to the Subscriber or the Disclosed
Principal (if applicable) set forth herein which takes place prior to the
Closing Date.
- 13 -
6.
Legends
The Subscriber and, if applicable, the Disclosed Purchaser
through the Subscriber acting as its agent, acknowledges that the certificates
representing the Purchased Securities will, in addition to the legend specified
in subparagraph 5(g)(xi), bear the following legends:
UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF
THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE , 2015 [the date which is
four months and one day after the Closing Date will be inserted]
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE LISTED ON
THE TORONTO STOCK EXCHANGE (TSX); HOWEVER, THE SAID SECURITIES CANNOT
BE TRADED THROUGH THE FACILITIES OF THE TSX SINCE THEY ARE NOT FREELY
TRANSFERABLE, AND CONSEQUENTLY ANY CERTIFICATE REPRESENTING SUCH SECURITIES IS
NOT GOOD DELIVERY IN SETTLEMENT OF TRANSACTIONS ON THE TSX.
provided that subsequent to the date which is four months and
one day after the Closing Date the certificates representing the Purchased
Securities may be exchanged for certificates bearing no such legends.
The Subscriber and, if applicable, the Disclosed Purchaser
through the Subscriber acting as its agent, also acknowledges that it has been
advised to consult its own independent legal advisor with respect to the
applicable resale restrictions; that it is solely responsible for complying with
such restrictions; that the Corporation is not responsible for ensuring
compliance by the Subscriber or, if applicable, the Disclosed Purchaser, of the
applicable resale restrictions; and that additional restrictions are applicable
to resales of, and additional restrictive legends will be placed upon, Purchased
Securities acquired by U.S. Persons as described in Schedule B.
7.
Representations and Warranties of the Corporation
The Corporation represents, warrants, covenants and certifies
to and with the Subscriber and, if applicable, the Disclosed Purchaser that, as
of the date given above and at the Closing:
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(a) |
the Corporation is a valid and subsisting company
incorporated and in good standing under the laws of the Province of
British Columbia; |
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(b) |
the Corporation and each of its subsidiaries is duly
registered and licensed to carry on business in each jurisdiction in which
it carries on business or owns property where required under the laws of
that jurisdiction; |
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(c) |
all annual and quarterly reports, financial statements,
proxy statements/information circulars, press releases, material change
reports and other documents filed by or on behalf of the Corporation
within the past 12 months with the Exchanges and any of the Commissions
(the Disclosure Record) were true and correct in all material
respects and did not contain any misrepresentation (as defined in the
Securities Act (British Columbia)) as at the respective dates of
such filings; |
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(d) |
except as qualified by the disclosure in the Disclosure
Record, the Corporation is the beneficial owner of the properties,
business and assets or the interests in the properties, business or assets
referred to in the Disclosure Record as being beneficially owned by the
Corporation; |
- 14 -
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(e) |
the financial statements of the Corporation contained in
the Disclosure Record have all been prepared in accordance with United
States generally accepted accounting principles, accurately and fairly
reflect the financial position, performance, cash flows and all
liabilities (accrued, absolute, contingent or otherwise) of the
Corporation and its subsidiaries in all material respects as of the dates
thereof; |
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(f) |
subject to the representations, warranties and
certifications of the Subscriber herein contained being accurate and
truthful in all material respects and the Subscriber fulfilling all of its
covenants and obligations herein contained, the Corporation has complied
and will comply fully with the requirements of all applicable corporate
and securities laws and administrative policies and directions, including,
without limitation, the Securities Laws and the Business Corporations
Act (British Columbia) in relation to the issue and trading of its
securities and in all matters relating to the private placement of the
Offered Securities; |
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(g) |
there is not presently any material change, as defined in
the Securities Laws, relating to the Corporation or change in any material
fact, as defined in the Securities Laws, relating to any of the Purchased
Securities, which has not been fully disclosed in accordance with the
requirements of the Securities Laws and the policies of the
Exchange; |
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(h) |
the issue and sale of the Offered Securities by the
Corporation does not and will not conflict with, and does not and will not
(including, without limitation, with the giving of notice, the lapse of
time or the happening of any other event or condition or any combination
of the foregoing) result in a material breach of, any of the terms of the
Corporations constating documents or any agreement or instrument to which
the Corporation is a party or by which it is bound; |
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(i) |
the Corporation is not a party to any actions, suits or
proceedings which could materially affect its business or financial
condition, and to the best of the Corporations knowledge, no such
actions, suits or proceedings are contemplated or have been
threatened; |
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(j) |
there are no judgments against the Corporation which are
unsatisfied, nor is the Corporation subject to any consent decrees or
injunctions; |
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(k) |
this Agreement has been or will be at the Closing Date
duly authorized by all necessary corporate action on the part of the
Corporation, and the Corporation has full corporate power and authority to
undertake the Offering and to issue, sell and deliver the Purchased
Securities; |
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(l) |
to the Corporations knowledge, after due enquiry, it is
not in material default of any of the requirements of the Securities Laws
or any of the administrative policies or notices of the
Exchange; |
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(m) |
to the Corporations knowledge, after due enquiry, no
order ceasing or suspending trading in securities of the Corporation nor
prohibiting the sale of such securities has been issued to and is
outstanding against the Corporation or its directors, officers or
promoters; |
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(n) |
except for as provided in the Disclosure Record, no
person has any right, agreement or option, present or future, contingent
or absolute, or any right capable of becoming such a right, agreement or
option, for the issue or allotment of any unissued shares in the capital
of the Corporation, or any other security convertible into or exchangeable
for any such shares, or to require the Corporation to purchase, redeem or
otherwise acquire any of the issued and outstanding shares in its
capital; |
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(o) |
each of the Corporations subsidiaries is a valid and
subsisting corporation organized and in good standing under the laws of
their respective jurisdictions of
organization; |
- 15 -
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(p) |
the Corporation and each of its subsidiaries is in all
material respects conducting its business in material compliance with all
applicable laws, rules and regulations of each jurisdiction in which its
business is carried on; |
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(q) |
the authorized capital of the Corporation consists of
500,000,000 Common Shares, of which, immediately prior to the Closing
Date, 98,068,638 Common Shares are issued and outstanding; |
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(r) |
as of the Closing, the Purchased Securities will be
validly issued and outstanding; |
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(s) |
no approval, authorization, consent or other order of,
and no filing, registration or recording with, any governmental authority
is required to be obtained or made by the Corporation in connection with
the execution and delivery by the Corporation of this Agreement or the
performance by the Corporation of its obligations hereunder, except such
approvals, authorizations, consents, orders, filing, registrations or
recordings required under the Securities Laws and the rules of the
Exchanges, which shall be obtained or made by the Corporation prior to the
Closing or otherwise within the periods prescribed thereunder; |
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(t) |
none of the Corporation, its subsidiaries or any of their
respective officers, directors or employees acting on behalf of the
Corporation or any of its subsidiaries has taken, committed to take or
been alleged to have taken any action which would cause the Corporation or
any of its subsidiaries to be in violation of the Corruption of Foreign
Public Officials Act (Canada) (and the regulations promulgated
thereunder) or any applicable law of similar effect of another
jurisdiction, and to the knowledge of the Corporation no such action has
been taken by any of its agents, representatives or other Persons acting
on behalf of the Corporation or any of its subsidiaries; |
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(u) |
the Offering constitutes an Exempt Acquisition as such
term is defined in the Amended and Restated Shareholder Rights Plan
Agreement dated August 26, 2009, as amended and restated on September 19,
2012, between the Corporation and Computershare Investor Services Inc., as
may be further amended, supplemented or restated from time to time;
and |
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(v) |
the representations, warranties, covenants and
certifications in this Section 7 will be true and correct both as of the
execution of this Agreement and as of the Closing
Date. |
8.
No Finders Fee
The Corporation confirms that it is
not paying any form of commission, bonus, finders fee or similar compensation
to any Person in connection with the Offering.
9.
General
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(a) |
Headings: The division of this Agreement into
articles and sections and the insertion of headings are for convenience of
reference only and shall not affect the construction or interpretation of
this Agreement. The terms this Agreement, hereof, hereunder,
herein and similar expressions refer to this Agreement and not to any
particular article, section or other portion hereof and include any
agreement supplemental thereto and any exhibits attached hereto. Unless
something in the subject matter or context is inconsistent therewith,
reference herein to articles, sections and paragraphs are to articles,
sections, subsections and paragraphs of this Agreement. |
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(b) |
Number and Gender: Words importing the singular
number only shall include the plural and vice versa, words importing the
masculine gender shall include the feminine gender and neuter and vice
versa. |
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(c) |
Severability: If one or more of the provisions
contained in this Agreement shall be invalid, illegal or unenforceable in
any respect under any applicable law, the validity, legality or
enforceability of the remaining provisions hereof shall not be affected or
impaired thereby. Each of the provisions of this Agreement is hereby
declared to be separate and distinct. |
- 16 -
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(d) |
Notices: All notices or other communications to be
given hereunder shall be delivered by hand or by telecopier, and if
delivered by hand, shall be deemed to have been given on the date of
delivery or, if sent by telecopier, on the date of transmission if sent
before 5:00 p.m. and such day is a Business Day or, if not, on the first
Business Day following the date of transmission. |
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Notices to the Corporation shall be addressed
to: |
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International Tower Hill Mines Ltd. Ltd. Suite 2300,
1177 West Hastings Street Vancouver, British Columbia V6E
2K3 |
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Attention: General Counsel Fax Number: (604)
408-7499 |
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Notices to the Subscriber shall be addressed to the
address of the Subscriber set out on the execution page hereof. |
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Either the Corporation or the Subscriber may change its
address for service aforesaid by notice in writing to the other party
hereto specifying its new address for service
hereunder. |
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(e) |
Further Assurances: Each party hereto shall from
time to time at the request of the other party hereto do such further acts
and execute and deliver such further instruments, deeds and documents as
shall be reasonably required in order to fully perform and carry out the
provisions of this Agreement. The parties hereto agree to act honestly and
in good faith in the performance of their respective obligations
hereunder. |
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(f) |
Successors and Assigns: Except as otherwise
provided, this Agreement shall enure to the benefit of and shall be
binding upon the parties hereto and their respective successors and
permitted assigns. |
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(g) |
Notification of Changes: The parties hereby
covenant and agree to notify the other party upon the occurrence of any
event prior to the Closing which would cause any partys representations,
warranties or covenants contained in this Agreement to be false or
incorrect in any material respect. |
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(h) |
Assignment: This Agreement is not assignable or
transferable by the parties hereto without the express written consent of
the other party to this Agreement. |
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(i) |
Entire Agreement: The terms of this Agreement
express and constitute the entire agreement between the parties hereto
with respect to the subject matter hereof and no implied term or liability
of any kind is created or shall arise by reason of anything in this
Agreement. |
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(j) |
Time of Essence: Time is of the essence of this
Agreement. |
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(k) |
Amendments: The provisions of this Agreement may
only be amended with the written consent of all of the parties
hereto. |
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(l) |
Survival: Notwithstanding any other provision of
this Agreement, the representations, warranties, covenants and indemnities
of or by the Corporation, the Subscriber and the Disclosed Purchaser
contained herein or in any certificate, document or instrument delivered
pursuant hereto shall survive the completion of the transactions
contemplated by this Agreement. |
- 17 -
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(m) |
Governing Law and Venue: The contract arising out
of this Agreement shall be governed by and construed in accordance with
the laws of the Province of British Columbia and the laws of Canada
applicable therein, governing contracts made and to be performed wholly
therein, and without reference to its principles governing the choice or
conflict of laws. The parties hereto irrevocably attorn and submit to the
exclusive jurisdiction of the courts of the Province of British Columbia,
sitting in the City of Vancouver, with respect to any dispute related to
or arising from this Agreement. |
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(n) |
Counterparts: This Agreement may be executed in
two or more counterparts which when taken together shall constitute one
and the same agreement. Delivery of counterparts may be effected by
facsimile transmission thereof. |
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(o) |
Facsimile Copies: The Corporation shall be
entitled to rely on a facsimile copy of an executed subscription agreement
and acceptance by the Corporation of such facsimile subscription shall be
legally effective to create a valid and binding agreement between the
Subscriber and the Corporation in accordance with the terms thereof. If
less than a complete copy of this Agreement is delivered to the
Corporation at Closing, the Corporation and its advisors are entitled to
assume that the Subscriber accepts and agrees to all of the terms and
conditions of the pages not delivered at Closing unaltered. |
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(p) |
Regulatory Acceptance/Approval: Without
limitation, this Agreement and the transactions contemplated hereby are
conditional upon receipt by the Corporation of the conditional
acceptance/approval from the Exchanges to list the Purchased Securities.
This condition (p) is for the benefit of both the Corporation and the
Subscriber. |
If the foregoing is in accordance with your understanding,
please sign and return this Agreement together with the other required documents
signifying your agreement to purchase the Purchased Securities.
SCHEDULE A
CANADIAN EXEMPTION CERTIFICATE
Capitalized terms used in this Schedule A and defined in the
Agreement to which this Schedule A is attached have the meaning defined in the
Agreement unless otherwise defined herein.
In connection with the purchase by the Subscriber of the
Purchased Securities, the Subscriber or, if applicable, the Disclosed Purchaser
through the Subscriber acting as its agent, hereby represents, warrants,
covenants and certifies that:
1. |
the Subscriber or, if applicable, the Disclosed Purchaser
(please check the appropriate line): |
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(a) |
Accredited Investor Exemption:
________is an accredited investor within the meaning of National
Instrument 45-106 entitled Prospectus and Registration Exemptions (NI
45-106) by virtue of the fact that the Subscriber or Disclosed Purchaser,
as the case may be, falls within one or more of the subparagraphs of the
definition of accredited investor set out in Appendix I to this Schedule
A (YOU MUST ALSO COMPLETE APPENDIX A ATTACHED TO THIS CERTIFICATE);
or |
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(b) |
$150,000 Exemption: ________is
purchasing sufficient Purchased Securities such that the aggregate
acquisition cost of the Purchased Securities is not less than $150,000 and
if the Subscriber or, if applicable, the Disclosed Purchaser, is not an
individual, it was not created or used solely to purchase or hold
securities in reliance on the exemptions from the dealer registration
requirement or the prospectus requirement contained in Section 2.10 of NI
45-106; |
2. |
the above representations, warranties and covenants will
be true and correct both as of the execution of this certificate and as of
the closing time of the purchase and sale of the Purchased Securities and
will survive the completion of the issue of the Purchased Securities;
and |
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3. |
the foregoing representations, warranties and covenants
are made by the Subscriber or, if applicable, the Disclosed Purchaser
through the Subscriber acting as its agent, with the intent that they be
relied upon in determining the suitability of the Subscriber or Disclosed
Purchaser as a purchaser of the Purchased Securities and the Subscriber
undertakes to immediately notify the Corporation of any change in any
statement or other information relating to the Subscriber or, if
applicable, the Disclosed Purchaser, set forth herein which takes place
prior to the closing time of the purchase and sale of the Purchased
Securities. |
The Subscriber has executed this certificate as of the ____ day
of ______________, 2014.
If a trust, partnership or other entity: |
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If an individual: |
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Name of Entity |
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Signature |
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Type of Entity |
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Name of Individual |
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Signature of Person Signing |
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Title of Person Signing |
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APPENDIX I TO SCHEDULE A
ACCREDITED INVESTOR CERTIFICATE
TO: INTERNATIONAL
TOWER HILL MINES LTD.
Capitalized terms used in this Appendix I to Schedule A and
defined in the Agreement to which this Appendix I to Schedule A is attached have
the meaning defined in the Agreement unless otherwise defined herein.
The undersigned or, if applicable, the Disclosed Purchaser
through the undersigned acting as its agent, hereby represents, warrants and
certifies to the Corporation that the undersigned, or, if applicable, the
Disclosed Purchaser, is an Accredited Investor as defined in subsection 1.1 of
National Instrument 45-106. The undersigned has indicated below the categories
which the undersigned, or, if applicable, the Disclosed Purchaser, satisfies in
order to qualify as an Accredited Investor.
The undersigned or, if applicable, the Disclosed Purchaser
through the undersigned acting as its agent, understands that the Corporation
and its counsel are relying upon this information in determining to sell
securities to the undersigned or, if applicable, the Disclosed Purchaser, in a
manner exempt from the prospectus and registration requirements of applicable
securities laws.
The undersigned or, if applicable, the Disclosed Purchaser
through the undersigned acting as its agent, represents, warrants and certifies
that it, he or she is: [initial or place a checkmark above the line to the
left of each applicable item]
_____ |
(a) |
a Canadian financial institution, or an authorized
foreign bank named in Schedule III of the Bank Act (Canada);
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_____ |
(b) |
the Business Development Bank of Canada incorporated
under the Business Development Bank of Canada Act (Canada);
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_____ |
(c) |
a subsidiary of any person referred to in paragraphs (a)
to (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; |
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_____ |
(d) |
a person registered under the securities legislation of a
jurisdiction of Canada as an adviser or dealer, other than a person
registered solely as a limited market dealer under one or both of the
Securities Act (Ontario) or the Securities Act (Newfoundland
and Labrador); |
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_____ |
(e) |
an individual registered or formerly registered under the
securities legislation of a jurisdiction of Canada as a representative of
a person referred to in paragraph (d); |
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_____ |
(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; |
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_____ |
(g) |
a municipality, public board or commission in Canada and
a metropolitan community, school board, the Comité de gestion de la taxe
scolaire de lîle de Montréal or an intermunicipal management board in
Québec; |
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_____ |
(h) |
any national, federal, state, provincial, territorial or
municipal government of or in any foreign jurisdiction, or any agency of
that government; |
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_____ |
(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;
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- 2 -
_____ |
(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; |
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_____ |
(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;
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_____ |
(l) |
an individual who, either alone or with a spouse, has net
assets of at least $5,000,000; |
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_____ |
(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; |
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_____ |
(n) |
an investment fund that distributes or has distributed
its securities only to: |
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(i) |
a person that is or was an accredited investor at the
time of the distribution, |
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(ii) |
a person that acquires or acquired securities in the
circumstances referred to in sections 2.10 Minimum amount investment
and 2.19 Additional investment in investment funds of NI 45-
106; or |
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(iii) |
a person described in paragraph (i) or (ii) that acquires
or acquired securities under section 2.18 Investment fund reinvestment
of NI 45-106; |
_____ |
(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; |
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_____ |
(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 a foreign jurisdiction, acting on behalf of a
fully-managed account managed by the trust company or trust corporation,
as the case may be; |
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_____ |
(q) |
a person acting on behalf of a fully-managed account
managed by that person, if that person: |
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(i) |
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; and |
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(ii) |
in Ontario, is purchasing a security that is not a
security of an investment fund; |
_____ |
(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; |
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_____ |
(s) |
an entity organized in a foreign jurisdiction that is
analogous to any of the entities referred to in paragraphs (a) through (d)
or paragraph (i) in form and function; |
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_____ |
(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; |
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_____ |
(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;
or |
- 3 -
_____ |
(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. |
The Subscriber has executed this Certificate as of the ______
day of ____________, 2014.
If a trust, partnership or other entity: |
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If an individual: |
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Name of Entity |
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Signature |
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Type of Entity |
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Name of Individual |
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Signature of Person Signing |
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Title of Person Signing |
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As used in this Certificate, the following terms have the
following meanings:
An issuer is an affiliate of another issuer if:
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(a) |
one of them is the subsidiary of the other, or |
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(b) |
each of them is controlled by the same
person; |
Canadian financial institution means:
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(a) |
an association governed by the Cooperative Credit
Associations Act (Canada) or a central cooperative credit society for
which an order has been made under section 473(1) of that Act;
or |
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(b) |
a bank, loan corporation, trust company, trust
corporation, insurance company, treasury branch, credit union, caisse
populaire, financial services cooperative, or league that, in each case,
is authorized by an enactment of Canada or a jurisdiction of Canada to
carry on business in Canada or a jurisdiction of
Canada; |
control person has the meaning ascribed to that term
in securities legislation except in Ontario, Québec and Nova Scotia where
control person means any person that holds or is one of a combination of
persons that holds:
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(a) |
a sufficient number of any of the securities of an issuer
so as to affect materially the control of the issuer, or |
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(b) |
more than 20% of the outstanding voting securities of an
issuer except where there is evidence showing that the holding of those
securities does not affect materially the control of the
issuer; |
- 4 -
eligibility advisor means:
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(a) |
a person that is registered as an investment dealer or in
an equivalent category of registration under the securities legislation of
the jurisdiction of a purchaser and authorized to give advice with respect
to the type of security being distributed; and |
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(b) |
in Saskatchewan or Manitoba, also means a lawyer who is a
practicing member in good standing with a law society of a jurisdiction of
Canada or a public accountant who is a member in good standing of an
institute or association of chartered accountants, certified general
accountants or certified management accountants in a jurisdiction of
Canada provided that the lawyer or public accountant must not: |
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(i) |
have a professional business or personal relationship
with the issuer, or any of its directors, executive officers, founders or
control persons, and |
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(ii) |
have acted for or been retained personally or otherwise
as an employee, executive officer, director, associate or partner of a
person that has acted for or been retained by the issuer or any of its
directors, executive officers, founders or control persons within the
previous 12 months; |
financial assets means cash, securities, or a contract
of insurance, a deposit or an evidence of a deposit that is not a security for
the purposes of securities legislation;
foreign jurisdiction means a country other than Canada
or a political subdivision of a country other than Canada;
fully managed account means an account of a client for
which a person makes the investment decisions if that person has full discretion
to trade in securities for the account without requiring the clients express
consent to a transaction;
investment fund has the same meaning as in National
Instrument 81-106 Investment Fund Continuous Disclosure and means a
mutual fund or a non-redeemable investment fund;
jurisdiction means a province or territory of Canada
except when used in the term foreign jurisdiction;
local jurisdiction means the jurisdiction in which the
Canadian securities regulatory authority is situated;
non-redeemable investment fund has the same meaning as
in National Instrument 81-106 Investment Fund Continuous Disclosure and
means an issuer:
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(a) |
whose primary purpose is to invest money provided by its
securityholders; |
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(b) |
that does not invest; |
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(i) |
for the purpose of exercising or seeking to exercise
control of an issuer, other than an issuer that is a mutual fund or a
non-redeemable investment fund; or |
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(ii) |
for the purpose of being actively involved in the
management of any issuer in which it invests, other than an issuer that is
a mutual fund or a non-redeemable investment fund; and |
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(c) |
that is not a mutual fund; |
person includes an individual, a corporation, a
partnership, trust, fund and an association, syndicate, organization or other
organized group of persons, whether incorporated or not; and an individual or
other person in that persons capacity as a trustee, executor, administrator or
personal or other legal representative;
- 5 -
regulator means, for the local jurisdiction, the
Executive Director as defined under securities legislation of the local
jurisdiction;
related liabilities means:
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(a) |
liabilities incurred or assumed for the purpose of
financing the acquisition or ownership of financial assets; or |
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(b) |
liabilities that are secured by financial
assets; |
securities legislation means securities legislation as
such term is defined in National Instrument 14-101
Definitions;
spouse means, an individual who:
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(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; |
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(b) |
is living with another individual in a marriage-like
relationship, including a marriage-like relationship between individuals
of the same gender; or |
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(c) |
in Alberta, is an individual referred to in paragraph (a)
or (b), or is an adult interdependent partner within the meaning of the
Audit Interdependent Relationships Act (Alberta);
and |
subsidiary means an issuer that is controlled directly
or indirectly by another issuer and includes a subsidiary of that subsidiary.
Calculation of purchasers net assets: To calculate a
purchasers net assets under paragraph (a) of the Accredited Investor
definition, subtract the purchasers total liabilities from the purchasers
total assets. The value attributed to assets should reasonably reflect their
estimated fair value. Income tax should be considered a liability if the
obligation to pay it is outstanding at the time of the trade.
SCHEDULE B
U.S. ACCREDITED INVESTOR CERTIFICATE
TO:
INTERNATIONAL TOWER HILL MINES LTD. (the Corporation)
Capitalized terms used in this Schedule B and defined in the
Agreement to which is Schedule B is attached have the meaning defined in the
Agreement unless otherwise defined herein.
The undersigned or, if applicable, the Disclosed Purchaser
through the undersigned acting as its agent, (the Subscriber) represents,
warrants and covenants (which representations, warranties and covenants shall
survive the Closing) to the Corporation (and acknowledges that the Corporation
is relying thereon) that:
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(a) |
it understands and agrees that the Purchased Securities
have not been and will not be registered under the 1933 Act, or applicable
securities laws of any state of the United States, and the Purchased
Securities are being offered and sold by the Corporation to the Subscriber
in reliance upon the exemption from the registration requirements of the
1933 Act set forth in Section 4(a)(2) of the 1933 Act and Rule 506(b) of
Regulation D; |
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(b) |
it is purchasing the Purchased Securities for its own
account or for the account or benefit of one or more persons for whom it
is exercising sole investment discretion, (a Beneficial
Purchaser), for investment purposes only and not with a view to
resale or distribution and, in particular, neither it nor any Beneficial
Purchaser for whose account it is purchasing the Purchased Securities has
any intention to distribute either directly or indirectly any of the
Purchased Securities in the United States or to, or for the account or
benefit of a U.S. Person; provided, however, that this paragraph shall not
restrict the Subscriber from selling or otherwise disposing of any of the
Purchased Securities pursuant to registration thereof pursuant to the 1933
Act and any applicable securities laws of any state of the United States
or under an applicable exemption from such registration
requirements; |
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(c) |
it, and if applicable, each Beneficial Purchaser for
whose account or benefit it is purchasing the Purchased Securities, is a
U.S. Accredited Investor that satisfies one or more of the categories of
U.S. Accredited Investor as indicated below (the Subscriber must
initial SUB for the Subscriber, and BP for each Beneficial Purchaser,
if any, on the appropriate line(s)): |
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_____ |
Category 1. |
A bank, as defined in Section 3(a)(2) of the 1933 Act,
whether acting in its individual or fiduciary capacity; or |
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Category 2. |
A savings and loan association or other institution as
defined in Section 3(a)(5)(A) of the 1933 Act, whether acting in its
individual or fiduciary capacity; or |
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Category 3. |
A broker or dealer registered pursuant to Section 15 of
the United States Securities Exchange Act of 1934, as amended; or
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Category 4. |
An insurance company as defined in Section 2(a)(13) of
the 1933 Act; or |
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Category 5. |
An investment company registered under the United States
Investment Company Act of 1940; or |
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Category 6. |
A business development company as defined in Section
2(a)(48) of the United States Investment Company Act of 1940; or
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- 2 -
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_____ |
Category 7. |
A small business investment company licensed by the U.S.
Small Business Administration under Section 301 (c) or (d) of the United
States Small Business Investment Act of 1958; or |
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_____ |
Category 8. |
A plan established and maintained by a state, its
political subdivisions or any agency or instrumentality of a state or its
political subdivisions, for the benefit of its employees, with total
assets in excess of U.S. $5,000,000; or |
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_____ |
Category 9. |
An employee benefit plan within the meaning of the United
States Employee Retirement Income Security Act of 1974 in
which the investment decision is made by a plan fiduciary, as defined in
Section 3(21) of such Act, which is either a bank, savings and loan
association, insurance company or registered investment adviser, or an
employee benefit plan with total assets in excess of U.S. $5,000,000 or,
if a self-directed plan, with investment decisions made solely by persons
who are U.S. accredited investors; or |
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_____ |
Category 10. |
A private business development company as defined in
Section 202(a)(22) of the United States Investment Advisers Act of
1940; or |
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_____ |
Category 11. |
An organization described in Section 501(c)(3) of the
United States Internal Revenue Code, a corporation, a
Massachusetts or similar business trust, or a partnership, not formed for
the specific purpose of acquiring the securities offered, with total
assets in excess of U.S. $5,000,000; or |
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_____ |
Category 12. |
Any director or executive officer of the Corporation; or
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Category 13. |
A natural person whose individual net worth (i.e. the
excess of total assets at fair market value, including personal and real
property but excluding the estimated fair market value of a persons
primary home, over total liabilities), or joint net worth with that
person's spouse, at the time of this purchase exceeds US$1,000,000;
provided that total liabilities excludes any mortgage on the primary home
in an amount of up to the home's estimated fair market value as long as
the mortgage was incurred more than 60 days before the securities are
purchased, but includes (i) any mortgage amount in excess of the home's
fair market value and (ii) any mortgage amount that was borrowed during
the 60-day period before the closing date for the sale of securities for
the purpose of investing in the securities; or |
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_____ |
Category 14. |
A natural person who had an individual income in excess
of U.S. $200,000 in each of the two most recent years or joint income with
that persons spouse in excess of U.S. $300,000 in each of those years and
has a reasonable expectation of reaching the same income level in the
current year; or |
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_____ |
Category 15. |
A trust, with total assets in excess of U.S. $5,000,000,
not formed for the specific purpose of acquiring the securities offered,
whose purchase is directed by a sophisticated person as described in Rule
506(b)(2)(ii) under the 1933 Act; or |
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_____ |
Category 16. |
Any entity in which all of the equity owners meet the
requirements of at least one of the above categories;
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(d) |
it acknowledges that the Purchased Securities are
restricted securities, as such term is defined under Rule 144 of the
1933 Act, and may not be offered, sold, pledged, or otherwise transferred,
directly or indirectly, without prior registration under the 1933 Act and
applicable securities laws of any state of the United States, and it
agrees that if it decides to offer, sell, pledge or
otherwise transfer, directly or indirectly, any
of the Purchased Securities absent such registration, it will not offer, sell,
pledge or otherwise transfer, directly or indirectly, any of the Purchased
Securities, directly or indirectly, except: |
- 3 -
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(i) |
to the Corporation; or |
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(ii) |
outside the United States in an offshore transaction in
compliance with the requirements of Rule 904 of Regulation S under the
1933 Act, if available, and in compliance with applicable local laws and
regulations; or |
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(iii) |
in compliance with an exemption from registration under
the 1933 Act provided by Rule 144 thereunder, if available, and in
accordance with any applicable securities or Blue Sky laws of any state
of the United States; or |
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(iv) |
in a transaction that does not require registration under
the 1933 Act or any applicable securities laws of any state of the United
States; |
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and, in the case of subparagraph (iii) or (iv), it has
furnished to the Corporation an opinion of counsel of recognized standing
in form and substance satisfactory to the Corporation to such
effect; |
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(e) |
it understands that upon the issuance thereof, and until
such time as the same is no longer required under the applicable
requirements of the 1933 Act or applicable U.S. state laws and
regulations, the certificates representing the Purchased Securities, and
all securities issued in exchange therefor or in substitution thereof,
will bear a legend in substantially the following
form: |
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN AND WILL NOT
BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
1933 ACT) OR ANY APPLICABLE STATE SECURITIES LAWS. THE HOLDER HEREOF, BY
PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF INTERNATIONAL TOWER HILL
MINES LTD. (THE CORPORATION) THAT SUCH SECURITIES MAY BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED, DIRECTLY OR INDIRECTLY, ONLY (A) TO THE
CORPORATION, (B) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 OF
REGULATION S UNDER THE 1933 ACT AND IN COMPLIANCE WITH LOCAL LAWS AND
REGULATIONS, (C) IN COMPLIANCE WITH THE EXEMPTION FROM REGISTRATION UNDER THE
1933 ACT PROVIDED BY RULE 144 THEREUNDER, IF AVAILABLE, AND IN COMPLIANCE WITH
ANY APPLICABLE STATE SECURITIES OR BLUE SKY LAWS, OR (D) IN A TRANSACTION THAT
DOES NOT REQUIRE REGISTRATION UNDER THE 1933 ACT OR ANY APPLICABLE STATE
SECURITIES LAWS, AND, IN THE CASE OF SUBPARAGRAPH (C) OR (D), THE SELLER
FURNISHES TO THE CORPORATION AN OPINION OF COUNSEL OF RECOGNIZED STANDING IN
FORM AND SUBSTANCE SATISFACTORY TO THE CORPORATION TO SUCH EFFECT. DELIVERY OF
THIS CERTIFICATE MAY NOT CONSTITUTE GOOD DELIVERY IN SETTLEMENT OF
TRANSACTIONS ON STOCK EXCHANGES IN CANADA.
provided, that if the Purchased
Securities are being sold under clause (B) above, at a time when the Corporation
is a foreign issuer as defined in Rule 902 under the 1933 Act, the legend set
forth above may be removed by providing a declaration to the Corporation and its
transfer agent in the form attached hereto as Appendix I to Schedule B or such
other evidence of exemption as the Corporation or its transfer agent may from
time to time prescribe, to the effect that the sale of the securities is being
made in compliance with Rule 904 of Regulation S;
provided further, that if any of the
Purchased Securities are being sold pursuant to Rule 144 of the 1933 Act and in
compliance with any applicable securities laws of any state of the United
States, the legend may be removed by delivery to the Corporations transfer
agent of an opinion of reputable counsel in form and substance satisfactory to
the Corporation and its transfer agent to the effect that the legend is no
longer required under applicable requirements of the 1933 Act or
applicable securities laws of any state of the United States;
- 4 -
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(f) |
it has had the opportunity to ask questions of and
receive answers from the Corporation regarding the investment, and has
received all the information regarding the Corporation that it has
requested; |
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(g) |
it consents to the Corporation making a notation on its
records or giving instruction to the registrar and transfer agent of the
Corporation in order to implement the restrictions on transfer with
respect to the Purchased Securities set forth and described herein and
understands that the Corporation may instruct its registrar and transfer
agent not to record any transfer of any securities of the Corporation
without first being notified by the Corporation that it is satisfied that
such transfer is exempt from or not subject to the registration
requirements of the 1933 Act and applicable securities laws of any state
of the United States; |
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(h) |
it understands and acknowledges that the Corporation has
no obligation or present intention of filing with the United States
Securities and Exchange Commission or with any state securities
administrator any registration statement in respect of resales of the
Purchased Securities in the United States; |
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(i) |
the office or other address of the Subscriber at which
the Subscriber received and accepted the offer to purchase the Purchased
Securities is the address listed as the Subscribers Residential or Head
Office Address on the first page of the Subscription Agreement; |
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(j) |
it understands and agrees that there may be material tax
consequences to the Subscriber of an acquisition, disposition or exercise
of any of the Purchased Securities, the Corporation gives no opinion and
makes no representation with respect to the tax status of the Corporation
or the consequences to the Subscriber under United States, state, local or
foreign tax law of the Subscribers acquisition or disposition or exercise
of the Purchased Securities, including whether the Corporation will at any
given time be deemed a passive foreign investment company within the
meaning of Section 1297 of the United States Internal Revenue
Code; |
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(k) |
it understands that (i) the Corporation may be deemed to
be an issuer that is, or that has been at any time previously, an issuer
with no or nominal operations and no or nominal assets other than cash and
cash equivalents (a Shell Company), (ii) if the Corporation is deemed to
be, or to have been at any time previously, a Shell Company, Rule 144
under the 1933 Act may not be available for resales of the Purchased
Securities, and (iii) the Corporation is not obligated to make Rule 144
under the 1933 Act available for resales of the Purchased
Securities; |
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(l) |
it acknowledges that it had a prior relationship with the
Corporation before such time as any announcement, press release, or other
notice or report of the offering of the Purchased Securities was made by
the Corporation; |
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(m) |
it acknowledges that it has not purchased the Securities
as a result of any form of General Solicitation or General Advertising,
including any advertisements, articles, notices or other communications
published in any newspaper, magazine or similar media or broadcast over
radio, television or internet or any seminar or meeting whose attendees
have been invited by general solicitation or general
advertising; |
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(n) |
it confirms that it or the Beneficial Purchaser, if any,
(i) is able to bear the economic risk of the investment in the Purchased
Securities, (ii) is able to hold the Purchased Securities for an
indefinite period of time, (iii) is able to afford a complete loss of its
investment and that it has adequate means of providing for its current
needs and possible personal contingencies, and that it has no need for
liquidity in this investment, (iv) finds this investment is suitable for
it based upon its investment holdings and financial situation and
needs, and this investment does not exceed ten percent of its net worth,
and (v) by reason of its business or financial experience could be
reasonably assumed to have the capacity to protect its own interests in
connection with this investment; and |
- 5 -
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(o) |
it acknowledges that the representations, warranties and
covenants contained in this Schedule are made by it with the intent that
they may be relied upon by the Corporation in determining its eligibility
to purchase the Purchased Securities and in establishing that the issuance
of the Purchased Securities is exempt from the registration requirements
of the 1933 Act. It agrees that by accepting the Purchased Securities it
shall be representing and warranting that the representations and
warranties above are true as at the Closing with the same force and effect
as if they had been made by it at the Closing and that they shall survive
the purchase by it of the Purchased Securities and shall continue in full
force and effect notwithstanding any subsequent disposition by it of such
securities. |
The Subscriber and, if applicable, the Disclosed Purchaser
through the Subscriber acting as its agent, undertakes to notify the Corporation
immediately of any change in any representation, warranty or other information
relating to the Subscriber or, if applicable, the Disclosed Purchaser set forth
herein which takes place prior to the Closing.
Executed this _________ day of _______________________, 2014
If a Corporation, Partnership or Other Entity: |
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If an Individual: |
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Name of Entity |
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Signature |
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Type of Entity |
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Print or Type Name |
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Signature of Person Signing |
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Print or Type Name and Title of Person Signing |
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Appendix I to Schedule B
U.S. Accredited Investor Certificate
FORM OF DECLARATION FOR REMOVAL OF U.S. LEGEND
To: |
Computershare Investor Services Inc., as Registrar and
Transfer Agent for the Shares of International Tower Hill Mines Ltd. (the
Corporation). |
The undersigned (a) acknowledges that the sale of the
securities of the Corporation to which this declaration relates is being made in
reliance on Rule 904 of Regulation S under the United States Securities Act of
1933, as amended (the 1933 Act) and (b) certifies that (1) the undersigned is
not an affiliate of the Corporation (as that term is defined in Rule 405 under
the 1933 Act), (2) the offer of such securities was not made to a person in the
United States and either (A) at the time the buy order was originated, the buyer
was outside the United States, or the seller and any person acting on its behalf
reasonably believed that the buyer was outside the United States, or (B) the
transaction was executed in, on or through the facilities of a Designated
Offshore Securities Market as defined in Rule 902 of Regulation S under the
1933 Act and neither the seller nor any person acting on its behalf knows that
the transaction has been prearranged with a buyer in the United States, (3)
neither the seller nor any affiliate of the seller nor any person acting on any
of their behalf has engaged or will engage in any directed selling efforts in
the United States in connection with the offer and sale of such securities, (4)
the sale is bona fide and not for the purpose of washing off the resale
restrictions imposed because the securities are restricted securities (as such
term is defined in Rule 144(a)(3) under the 1933 Act), (5) the seller does not
intend to replace such securities with fungible unrestricted securities of the
Corporation and (6) the contemplated sale is not a transaction, or part of a
series of transactions which, although in technical compliance with Regulation
S, is part of a plan or scheme to evade the registration provisions of the 1933
Act. Terms used herein have the meanings given to them by Regulation S.
securities. Terms used herein have the meanings given to them by Regulation S.
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Date |
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Authorized signatory (if Holder is not
an individual) |
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X |
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Signature of individual (if Holder is an individual)
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Name of authorized signatory (please
print) |
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Name of Holder (please print) |
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Official capacity of authorized signatory
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(please print) |
Affirmation by Sellers Broker-Dealer
We have read the foregoing representations of our customer,
_____________________________ (the Seller), dated _______________________,
with regard to our sale, for such Sellers account, of the _________________
common shares, represented by certificate number ______________ (the Shares),
of the Corporation described therein, and on behalf of ourselves we certify and
affirm that (A) we have no knowledge that the transaction had been prearranged
with a buyer in the United States, (B) the transaction was executed on or
through the facilities of The Toronto Stock Exchange and (C) neither we, nor any
person acting on our behalf, engaged in any directed selling efforts in
connection with the offer and sale of such securities. Terms used herein have
the meanings given to them by Regulation S.
___________________________________________________________ |
Name of Firm |
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By:
________________________________________________________ |
Authorized officer |
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Date:
______________________________________________________ |
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1177 West Hastings Street Suite 2300
Vancouver, BC Canada V6E 2K3 |
Tel: 604.683.6332 Fax: 604.408.7499
www.ithmines.com
|
NR14-07 |
November 24, 2014 |
International Tower Hill Mines Announces CAD 8.4
Million Non-
Brokered Private Placement
Vancouver, B.C. International Tower Hill Mines Ltd. (TSX:
ITH, NYSE-MKT: THM, Frankfurt: IW9) (ITH or the Company) announces that it
has arranged a non-brokered private placement financing (the Offering) of
common shares to raise gross proceeds of approximately CAD 8.4 million.
The Offering will consist of 18,245,000 common shares of the
Company at a price of CAD 0.46 per share. The transaction is anticipated to
close on or before December 12, 2014. The Company intends to use the net
proceeds of the private placement for advancement of optimization studies on the
Livengood Gold Project in Alaska and for general working capital purposes.
The Offering will be taken up by certain current institutional
shareholders (17,850,000 shares) and by certain directors and members of
management (395,000 shares). The Company has determined that there are
exemptions available from the various requirements of Multilateral Instrument
61-101 for the issuance of any common shares issued to related parties.
All common shares issued in the Offering will be subject to a
hold period in Canada of four months from the closing of the Offering. All
common shares issued in the United States will be subject to resale restrictions
under U.S. federal and state securities laws. Completion of the Offering is
subject to the Company obtaining all necessary regulatory approvals, including
acceptance for filing by the Toronto Stock Exchange and the approval of the
NYSE-MKT.
The common shares to be issued in the Offering have not been
and will not be registered under the U.S. Securities Act of 1933, as amended
(the 1933 Act) or any applicable securities laws of any state of the United
States and may not be offered or sold in the United States or to, or for the
account or benefit of, U.S. persons (as defined in Regulation S under the 1933
Act) or persons in the United States absent registration or an applicable
exemption from such registration requirements. This press release shall not
constitute an offer to sell or the solicitation of an offer to buy any of the
common shares to be issued in the Offering, nor shall there be any offer or sale
of the common shares to be issued in the Offering in any jurisdiction in which
such offer, solicitation or sale would be unlawful prior to registration or
qualification under the securities laws of any such jurisdiction.
About International Tower Hill Mines Ltd.
International Tower Hill Mines Ltd. controls a 100% interest in
the world-class Livengood Gold Project, located along the paved Elliott Highway,
70 miles north of Fairbanks, Alaska.
On behalf of
International Tower Hill Mines Ltd.
(signed) Thomas E. Irwin
Chief Executive Officer
International Tower Hill Mines Ltd. |
- 2 - |
November 24, 2014 |
NR14-07
Continued |
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Contact Information: |
Rick Solie, Manager - Investor
Relations |
|
E-mail: rsolie@ithmines.com |
|
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Direct line: 907-328-2825 |
Toll-Free: 1-855-428-2825 |
Cautionary Note Regarding Forward-Looking Statements
This press release contains forward-looking statements and
forward-looking information (collectively, forward-looking statements) within
the meaning of applicable Canadian and US securities legislation. All
statements, other than statements of historical fact, included herein, including
statements with respect to the anticipated completion of the Offering and the
proposed use of the proceeds of the Offering by the Company, the ability of the
Company to carry out and complete optimization studies with respect to the
Livengood Gold Project, the ability of the Company to advance the Livengood Gold
Project, the potential development of any mine at Livengood, business and
financing plans and business trends are forward-looking statements. Although the
Company believes that such statements are reasonable, it can give no assurance
that such expectations will prove to be correct. Forward-looking statements are
typically identified by words such as: believe, expect, anticipate, intend,
estimate, postulate, proposed, planned, potential and similar expressions, or
are those, which, by their nature, refer to future events. The Company cautions
investors that any forward-looking statements by the Company are not guarantees
of future results or performance, and that actual results may differ materially
from those in forward-looking statements as a result of various factors,
including, but not limited to, risks associated with the timing and pricing of
the Offering, completion of the Offering, regulatory approval/acceptance of the
Offering, the use of proceeds from the Offering, the potential inability of the
Company to raise the necessary capital or to be fully able to implement its
business strategies, and other risks and uncertainties disclosed in the
Companys annual report on Form 10-K and other reports filed with the United
States Securities and Exchange Commission (the SEC), and certain securities
commissions in Canada and other information released by the Company and filed
with the appropriate regulatory agencies. All of the Companys Canadian public
disclosure filings may be accessed via www.sedar.com and its United States
public disclosure filings may be accessed via www.sec.gov, and readers are urged
to review these materials, including the latest technical report filed with
respect to the Companys Livengood Gold Project.
This news release is not, and is not to be construed in any
way as, an offer to buy or sell securities in the United States.
-30-
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