Attached files
| file | filename |
|---|---|
| 8-K - Midway Gold Corp | v187888_8-k.htm |
| EX-5.2 - Midway Gold Corp | v187888_ex5-2.htm |
| EX-5.1 - Midway Gold Corp | v187888_ex5-1.htm |
| EX-10.1 - Midway Gold Corp | v187888_ex10-1.htm |
MIDWAY
GOLD CORP.
SUBSCRIPTION
FOR UNITS
TO: Midway
Gold Corp. (the "Company")
· (the
"Subscriber") hereby
subscribes for and agrees to purchase · units
(the "Units") in the
capital of the Company set forth below for the aggregate subscription price of
C$·,
representing a subscription price of C$0.60 per Unit, upon and subject to the
terms and conditions set forth in the "Terms and Conditions of Subscription for
Securities of Midway Gold Corp." attached to and forming a part
hereof. Each Unit is comprised of one common share ("Common Share") in the capital
of the Company and one half of one non-transferrable common share purchase
warrant (each whole warrant, a "Warrant"). Each
Warrant entitles the Subscriber to purchase one additional Common Share (a
"Warrant Share") for a
period of twenty-four (24) months (the "Term") following the Closing,
as hereinafter defined.
In
accordance with the requirements of the United States Securities and Exchange
Commission (the "SEC"), the offering price for Units offered in the United
States is payable in U.S. dollars. The U.S. dollar amount of the
offering price is US$0.57 (the equivalent of the Canadian dollar amount based on
the closing buying rate of the Bank of Canada on June 9, 2010 of C$1.00 =
US$0.9576). Based on this conversion rate the aggregate subscription
price is US$949,999.62.
Payment
in the amount of the aggregate subscription price set forth above must be
received by the Company no later than 4:00 p.m. (Vancouver time) on June
14, 2010 at its offices at Unit 1 – 15782 Marine Drive, White Rock, B.C.
V4B 1E6.
|
·
_______
_______________________________
_______________________________
Per: ____________________________
|
Subscriber Details:
______________________________
(Subscriber's Address, including postal code)
______________________________
______________________________ ______________________________ (Telephone Number) (E-Mail Address) |
|
Registration
Instructions:
_______________________________ (Custodian Name) _______________________________ (Account reference, if
applicable)
_______________________________ (Address, including postal
code)
_______________________________ _______________________________ |
Delivery Instructions:
______________________________
(Custodian Name)
______________________________
(Account reference, if applicable)
______________________________ (Contact
Name)
______________________________ (Address, including postal code) ______________________________ ______________________________ (DTC Account Number
(optional))
|
-
2 -
The
Subscriber acknowledges to the Company that the Subscriber has read and
understood the terms and conditions of this Subscription Agreement and, without
in any way limiting the foregoing, the Subscriber confirms that all of the
representations and warranties of the Subscriber contained herein are true and
correct as of the date hereof and will continue to be true and correct as at the
Closing Time, as hereinafter defined.
ACCEPTANCE: The
Company hereby accepts the above subscription as set forth above on the terms
and conditions contained in this Subscription Agreement.
MIDWAY
GOLD CORP.
|
Per:
|
,
|
,
2010
|
|
|
Authorized
Signatory
|
|||
This
is the first page of an agreement comprised of seven pages.
TERMS
AND CONDITIONS OF SUBSCRIPTION FOR
SECURITIES
OF MIDWAY GOLD CORP.
|
1.
|
Terms of the
Offering
|
|
1.1
|
The
Subscriber acknowledges that the Units subscribed for hereunder constitute
a sale by the Company of securities (the "Offering") made
concurrently with a the issuance and sale by the Company of up to
9,412,000 Units in a brokered public offering in Canada and to certain
qualified persons in the United Kingdom that is not subject to any minimum
or maximum amount of gross proceeds (the "Associated Offering").
|
|
1.2
|
Each
Warrant will entitle the holder to acquire a Warrant Share (subject to
customary adjustments) for a period of twenty-four (24) months (the "Term") following the
Closing Date (as defined herein) at a subscription price of C$0.80 per
Warrant Share.
|
|
2.
|
Representations,
Warranties and Covenants by
Subscriber
|
|
2.1
|
The
Subscriber represents, warrants and covenants to the Company (and
acknowledges that the Company and its counsel are relying thereon) as at
the date hereof and as at the Closing Time (as such term is defined below)
that:
|
|
|
(a)
|
it
is aware of the characteristics of the Common Shares, the Warrants and the
Warrant Shares (collectively, the "Purchased Securities")
and the risks relating to an investment
therein;
|
|
|
(b)
|
it
has received a copy of the Company's final prospectus supplement dated
June 10, 2010 (the "U.S.
Final Prospectus Supplement"), and the accompanying base prospectus
dated May 6, 2010 (the "U.S. Base Prospectus"),
as contained in the Company’s registration statement (the "Registration Statement")
on Form S-3 filed under the United States Securities Act of 1933, as
amended (the "U.S.
Securities Act") with the U.S. Securities and Exchange Commission
(the "SEC") on
April 1, 2010, and a copy of the Canadian prospectus supplement relating
to the Offering (the "Canadian Prospectus
Supplement"), and the accompanying short form base shelf prospectus
dated May 4, 2010 as filed with the securities regulatory authorities in
British Columbia, Alberta and
Ontario;
|
- 3
-
|
|
(c)
|
it
has not relied upon any verbal or written representation as to fact or
otherwise made by or on behalf of the Company or any employee or agent of
the Company other than as contained in this Subscription Agreement, the
U.S. Final Prospectus Supplement or the U.S. Base
Prospectus;
|
|
|
(d)
|
it
is resident in the jurisdiction set forth in this Subscription Agreement
as the "Subscriber's Address" next to the Subscriber's signature as set
forth on the first page hereof and any act, solicitation, conduct or
negotiation directly or indirectly in furtherance of the purchase and sale
of the Units hereunder has occurred only in such jurisdiction and in the
Province of British Columbia;
|
|
|
(e)
|
it
is purchasing the Units as principal for its own account and not for the
benefit of any other person;
|
|
|
(f)
|
this
Subscription Agreement, upon acceptance by the Company, will constitute a
legal, valid, binding and enforceable obligation of the Subscriber, except
as enforcement may be limited by bankruptcy, insolvency, reorganization or
other laws of general applicability relating to or affecting creditors’
rights and relating to general principals of
equity;
|
|
|
(g)
|
it
has such knowledge in financial and business affairs as to be capable of
evaluating the merits and risks of its investment and it is able to bear
the economic risk of such investment even if the entire investment is
lost;
|
|
|
(h)
|
it
understands that the Warrants are non-transferrable and are not and will
not be listed on any stock
exchange;
|
|
|
(i)
|
no
representation has been made to it regarding the present or future value
of the Purchased Securities;
|
|
|
(j)
|
it
is aware that an investment in the Purchased Securities is not without
risk and the Subscriber may lose his, her or its entire
investment;
|
|
|
(k)
|
it
is aware that the Company intends to complete the Associated Offering and
may complete additional financings in the future in order to develop the
business of the Company and fund its ongoing development, and the
Associate Offering and such future financings may have a dilutive effect
on current securityholders of the Company, including the Subscriber, but
there is no assurance that the Associated Offering will complete or that
any future financing will be available on reasonable terms or at all, and
if not available, the Company may be unable to fund its ongoing
development;
|
|
|
(l)
|
the
execution and delivery of and performance by it of this Subscription
Agreement do not and will not (or would not with the giving of notice, the
lapse of time or the happening of any other event of condition) result in
a breach or violation of or a conflict with, or allow any other person to
exercise any rights under any of the terms or provisions of its constating
documents or by-laws, if applicable, or any other contract, agreement,
instrument, undertaking or covenant to which it is a party or by which it
is bound;
|
- 4
-
|
|
(m)
|
it
acknowledges that the Subscriber has been encouraged to obtain independent
legal, income tax and investment advice with respect to its subscription
for Units and accordingly, has had the opportunity to acquire an
understanding of the meanings of all terms contained herein relevant to
the Subscriber for purposes of giving representations, warranties and
covenants under this Subscription Agreement and the Subscriber is not
relying on the Company or counsel to it in this
regard;
|
|
|
(n)
|
none
of the funds that the Subscriber is using to purchase the Purchased
Securities are, to the knowledge of the Subscriber, proceeds obtained or
derived, directly or indirectly, as a result of illegal activities;
and
|
|
|
(o)
|
the
Subscriber has not received, nor does it expect to receive any financial
assistance from the Company, directly or indirectly, in respect of the
Subscriber's purchase of Purchased
Securities.
|
|
3.
|
Representation,
Warranties and Covenants of the
Company
|
|
3.1
|
The
Company represents, warrants and covenants to the Subscriber (and
acknowledges that the Subscriber is relying thereon) as at the date hereof
and as at the Closing Time (as such term is defined below)
that:
|
|
|
(a)
|
the
Company is a valid and subsisting corporation duly incorporated and in
good standing under the laws of British
Columbia;
|
|
|
(b)
|
the
Company has taken, or prior to the Closing Date will take, all necessary
corporate action to authorize the execution, delivery and performance of
this Subscription Agreement, including the issuance of the Purchased
Securities, and upon execution of this Subscription Agreement by the
Company, this Subscription Agreement shall be duly executed by and shall
constitute a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with the terms hereof;
and
|
|
|
(c)
|
the
Registration Statement, the U.S. Final Prospectus Supplement and the U.S.
Base Prospectus comply and any further amendments or supplements to the
Registration Statement, the U.S. Final Prospectus Supplement or
the U.S. Base Prospectus will comply, in all material respects with the
applicable provisions of the U.S. Securities Act and the rules and
regulations thereunder, and do not and will not, as of the applicable
effective date as to each part of the Registration Statement and as of the
applicable filing date as to the U.S. Final Prospectus Supplement and U.S.
Base Prospectus and any amendment thereof or supplement thereto, contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein (in light of the circumstances under which they were made) not
misleading.
|
|
4.
|
Closing
|
|
4.1
|
The
Subscriber agrees to deliver to the Company no later than 5:00 p.m.
(Vancouver time) on June 10, 2010, or such later time or date as the
Company may agree to, via email to doris@goldenoakcorporate.com,
this duly completed and executed Subscription
Agreement.
|
- 5
-
|
4.2
|
In
addition, the Subscriber agrees to deliver to the Company no later than
4:00 p.m. (Vancouver time) on June 14, 2010 at its offices at Unit 1 –
15782 Marine Drive, White Rock, B.C. V4B 1E6 payment by certified cheque
or bank draft in the amount of the aggregate subscription price set forth
on the face page of this Subscription
Agreement.
|
|
4.3
|
The
completion of the offer, sale and issuance of the Units as contemplated by
this Subscription Agreement (the "Closing") will be at the
offices of Stikeman Elliott LLP, 1700 – 666 Burrard Street,
Vancouver, B.C. V6C 2X8 at 6:00 a.m. (Vancouver time) (the "Closing Time") on June
16, 2010 (the "Closing
Date") or such other place, time or date as the Company may
determine (such other time and/or date also being referred to as the
Closing Time and/or Closing Date, respectively), provided that the Company
shall not be required to complete the sale and issuance of the Purchased
Securities unless the Subscriber shall have complied with Section 2 hereof, the conditions set forth in Sections
4.4 and 4.5 hereof have been met or waived and the Company has received
all of the regulatory approvals required for such
issuance.
|
|
4.4
|
The
Subscriber acknowledges that the obligations of the Company to complete
the offer, sale and issuance of the Units as contemplated hereby shall
subject to, among other things, the following conditions being fulfilled
or performed on or before the Time of Closing, which conditions are for
the exclusive benefit of the Company and may be waived, in whole or in
part, by the Company in its sole
discretion:
|
|
|
(a)
|
the
Subscriber having complied with Section 4.1 and 4.2 hereof;
and
|
|
|
(b)
|
the
representations and warranties of the Subscriber having been true and
correct as of the date of this Subscription Agreement and being true and
correct at the Time of Closing.
|
In the
event that either of these conditions have not been satisfied or waived by the
Company on or prior to the Closing Date, the Subscriber shall not be required to
purchase, and the Company shall not be required to issue and sell, any Purchased
Securities, and any subscription funds received by the Company will be returned
promptly to the Subscriber without interest thereon or deduction
therefrom.
|
4.5
|
The
Subscriber and the Company acknowledge that their respective obligations
contemplated hereby shall be subject
to:
|
|
|
(a)
|
the
closing of the Associated Offering having occurred or occurring
concurrently; and
|
|
|
(b)
|
the
U.S. Final Prospectus Supplement having been filed with the SEC, the
Registration Statement not having ceased to be effective, and the Canadian
Prospectus Supplement having been filed with the securities regulatory
authorities in British Columbia, Alberta and
Ontario.
|
In the
event that either of these conditions have not been satisfied or waived by both
the Subscriber and the Company on or prior to the Closing Date, the Subscriber
shall not be required to purchase, and the Company shall not be required to
issue and sell, any Purchased Securities, and any subscription funds received by
the Company will be returned promptly to the Subscriber without interest thereon
or deduction therefrom.
- 6
-
|
4.6
|
At
the Closing Time, if the terms and conditions contemplated herein have
been complied with to the satisfaction of the Company, the Company shall
issue to the Subscriber the Units and send to the Subscriber, by courier,
in accordance with the Delivery Instructions set out on page 1 of
this Subscription Agreement, the certificates evidencing the
Common Shares and the Warrants subscribed for under this Subscription
Agreement, registered in accordance with the Registration Instructions set
out on page 1 of this Subscription Agreement; provided however,
that if the Subscriber provides the Company with a DTC account on page 1
of this Subscription Agreement to which the Subscriber wishes the Common
Shares to be delivered, the Company shall arrange for settlement through
the DWAC system of the DTC and the Common Shares will be evidenced by book
entry in the DTC system and will not be evidenced by the issuance of
physical certificates.
|
|
5.
|
Power of
Attorney
|
|
5.1
|
The
Subscriber irrevocably constitutes and appoints the Company as the true
and lawful attorney of the Subscriber. As the attorney of the
Subscriber, the Company has the power to act for and in the name of
Subscriber, with full power of substitution, to execute and deliver such
documents, instruments or agreements and do all acts and things necessary
to effect the following:
|
|
|
(a)
|
to
represent the Subscriber at the Closing for the purposes of all closing
matters and deliveries of documents and certificates representing the
Purchased Securities and payment of
funds;
|
|
|
(b)
|
to
extend any time periods and modify or waive any conditions that are set
forth in this Subscription Agreement in the manner and to the extent that
the Company, in its absolute discretion, deems appropriate, provided that
the extensions, modifications or waivers do not materially affect the
Subscriber's obligations under this Subscription Agreement;
and
|
|
|
(c)
|
to
complete or correct any errors or omissions in this Subscription
Agreement.
|
This
power of attorney is irrevocable, is coupled with an interest and has been given
for valuable consideration, the receipt and adequacy of which is
acknowledged. This power of attorney and other rights and privileges
granted under this section will survive any legal or mental incapacity,
dissolution, bankruptcy or death of the Subscriber. This power of attorney
extends to the heirs, executors, administrators, other legal representatives and
successors, transferees and assigns of the Subscriber. Any person
dealing with the Company may conclusively presume and rely upon the fact that
any document, instrument or agreement executed by the Company pursuant to this
power of attorney is authorized and binding on the Subscriber, without further
inquiry. The Subscriber agrees to be bound by any
representations or actions made or taken by the Company pursuant to this power
of attorney, and waives any and all defences that may be available to contest,
negate or disaffirm any action of the Company taken in good faith under this
power of attorney.
|
6.
|
General
|
|
6.1
|
The
representations, warranties and covenants of the Subscriber herein are
made with the intent that they be relied upon by the Company in
determining the suitability of a purchaser of Units and the Subscriber
agrees to indemnify the Company and its directors and officers against all
losses, claims, costs, expenses and damages or liabilities which any of
them may suffer or incur caused or arising from reliance
thereon. The Subscriber undertakes to promptly notify the
Company of any change in any statement or other information relating to
the Subscriber set forth herein which takes place prior to the Closing
Date.
|
- 7
-
|
6.2
|
The
contract arising out of this Subscription Agreement and all documents
relating thereto shall be governed by and construed in accordance with the
laws of the Province of British Columbia and the federal laws of Canada
applicable therein. The Subscriber irrevocably attorns and
submits to the non-exclusive jurisdiction of the courts of the Province of
British Columbia with respect to any matters arising out of this
Subscription Agreement and waives objection to the venue of any proceeding
in such court or that such court provides an inconvenient
forum.
|
|
6.3
|
Any
reference in this Subscription Agreement to gender includes all
genders. Words importing the singular number only include the
plural and vice versa. The division of this Subscription Agreement into
Sections and other subdivisions and the insertion of headings are for
convenient reference only and do not affect the Subscription Agreement’s
interpretation. In this Subscription Agreement (i) the words
"including", "includes" and "include" mean "including (or includes or
include) without limitation", (ii) the words "the aggregate of", "the
total of", "the sum of", or a phrase of similar meaning means "the
aggregate (or total or sum), without duplication,
of".
|
|
6.4
|
Time
shall be of the essence hereof.
|
|
6.5
|
This
Subscription Agreement constitutes the entire agreement between the
parties with respect to the transactions contemplated by it and supersedes
all prior agreements, understandings, negotiations and discussions,
whether oral or written, of the parties. There are no
representations, warranties, covenants, conditions or other agreements,
express or implied, collateral, statutory or otherwise, between the
parties in connection with the subject matter of this Subscription
Agreement, except as specifically set forth in this Subscription
Agreement. The parties have not relied and are not
relying on any other information (other than as set out in the U.S. Final
Prospectus Supplement and the U.S. Base Prospectus), discussion or
understanding in entering into and completing the transactions
contemplated by this Subscription
Agreement.
|
|
6.6
|
If
any provision of this Subscription Agreement is determined to be void or
unenforceable in whole or in part, it shall be deemed not to affect or
impair the validity of any other provision of this agreement and such void
or unenforceable provision shall be severable from this
agreement.
|
|
6.7
|
The
covenants, representations and warranties contained herein shall survive
the closing of the transactions contemplated
hereby.
|
|
6.8
|
The
Subscriber acknowledges and consents to the fact that the Company is
collecting the Subscriber's personal information for the purposes of
completing the Subscriber's subscription. The Subscriber
acknowledges and consents to the Company retaining the personal
information for as long as permitted or required by applicable law or
business practices. The Company may be required pursuant to
applicable securities regulations to file this Subscription Agreement on
SEDAR. By completing this Subscription Agreement, the
Subscriber authorizes the indirect collection of the information described
in this Section 6.8 by all applicable regulators and consents to the
disclosure of such information to the
public.
|
- 8
-
|
6.9
|
The
Subscriber further acknowledges and consents to the fact the Company may
be required by applicable securities laws, stock exchange rules, and
investment dealers association rules to provide regulatory authorities any
personal information provided by the
Subscriber.
|
|
6.10
|
The
Subscriber acknowledges and agrees that all costs incurred by the
Subscriber (including any fees and disbursements of any special counsel
retained by the Subscriber) relating to the sale of the Purchased
Securities to the Subscriber shall be borne by the
Subscriber.
|
|
6.11
|
This
Subscription Agreement becomes effective when executed by all of the
parties to it. After that time, it will be binding upon and
enure to the benefit of the parties and their respective successors,
heirs, executors, administrators and legal
representatives. This Subscription Agreement is not
transferable or assignable by any party to
it.
|
|
6.12
|
In
this Subscription Agreement, references to "C$" are to Canadian dollars
and references to "US$" are to United States
dollars.
|
|
6.13
|
This
Subscription Agreement may be executed in any number of counterparts
(including counterparts by facsimile) and all such counterparts taken
together will be deemed to constitute one and the same
document.
|