Attached files
Exhibit 10.1
(NON-U.S. SUBSCRIBERS ONLY)
THIS PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT RELATES TO AN OFFERING OF
SECURITIES IN AN OFFSHORE TRANSACTION TO PERSONS WHO ARE NOT U.S. PERSONS (AS
DEFINED HEREIN) PURSUANT TO REGULATION S UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "1933 ACT"). NONE OF THE SECURITIES TO WHICH THIS
SUBSCRIPTION AGREEMENT 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, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OR TO U.S. PERSONS (AS
DEFINED HEREIN) EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S UNDER
THE 1933 ACT, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933
ACT, OR PURSUANT TO AN AVAILABLE 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 COMPLIANCE
WITH THE 1933 ACT.
SKY HARVEST WINDPOWER CORP.
PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT
SHARES
INSTRUCTIONS TO SUBSCRIBER
1. THIS SUBSCRIPTION FORM is for use by Non-United States investors.
2. COMPLETE the information on page 2 of this Subscription Agreement.
3. COMPLETE: a Canadian Investor Questionnaire (the "INVESTOR QUESTIONNAIRE")
attached as Exhibit A hereto.
4. RETURN THIS SUBSCRIPTION AGREEMENT TOGETHER WITH THE SUBSCRIPTION PROCEEDS
PAID BY CERTIFIED CHEQUE OR BANK DRAFT TO:
Sky Harvest Windpower Corp.
Attention: President, 890 West Pender Street, Suite 710,
Vancouver, BC, Canada V6C 1J9
Fax: 604-626-4551
THE SUBSCRIPTION AMOUNT MAY BE WIRED TO THE COMPANY PURSUANT TO WIRING
INSTRUCTIONS THAT WILL BE PROVIDED TO THE SUBSCRIBER (AS DEFINED HEREIN)
UPON REQUEST.
5. All other information must be filled in where appropriate.
This is Page 2 of 18 pages of a subscription agreement
and related appendices, schedules and forms. Collectively, these pages together
are referred to as the "Subscription Agreement".
PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT
TO: Sky Harvest Windpower Corp. (the "ISSUER"), of 890 West Pender Street,
Suite 710, Vancouver, BC, Canada V6C 1J9
Subject and pursuant to the terms set out in the Terms on pages 3 to 5, the
General Provisions on pages 5 to 13, the Investor Questionnaire and the other
schedules and appendices attached which are hereby incorporated by reference,
the undersigned subscriber (the "SUBSCRIBER") hereby irrevocably subscribes for,
and on Closing will purchase from the Issuer, the following securities at the
following price:
________________ SHARES
US$0.25 per Share for a total purchase price of US$_____________
The Subscriber or the Beneficial Purchaser owns, directly or indirectly, the
following securities of the Issuer:
--------------------------------------------------------------------------------
[CHECK IF APPLICABLE] The Subscriber or the Beneficial Purchaser is an insider
of the Issuer.
The Subscriber directs the Issuer to issue, register and deliver the
certificates representing the Shares as follows:
REGISTRATION INSTRUCTIONS DELIVERY INSTRUCTIONS
----------------------------------------- -----------------------------------------
Name to appear on certificate Name and account reference, if applicable
----------------------------------------- -----------------------------------------
Account reference if applicable Contact name
----------------------------------------- -----------------------------------------
Address Address
-----------------------------------------
Telephone Number
EXECUTED BY THE SUBSCRIBER THIS ____ DAY OF ______________, 2011. BY EXECUTING
THIS SUBSCRIPTION AGREEMENT, THE SUBSCRIBER CERTIFIES THAT THE SUBSCRIBER AND
ANY BENEFICIAL PURCHASER FOR WHOM THE SUBSCRIBER IS ACTING ARE RESIDENT IN THE
JURISDICTION SHOWN AS THE "ADDRESS OF SUBSCRIBER" OR "ADDRESS OF BENEFICIAL
PURCHASER", RESPECTIVELY.
EXECUTION BY SUBSCRIBER: DETAILS OF BENEFICIAL PURCHASER
(IF NOT THE SAME AS SUBSCRIBER)
X
-----------------------------------------
Signature of individual (if Subscriber IS an individual)
X
----------------------------------------- -----------------------------------------
Authorized signatory (if Subscriber IS NOT an individual) Name of Beneficial Purchaser (PLEASE PRINT)
----------------------------------------- -----------------------------------------
Name of Subscriber (PLEASE PRINT) E-mail address of Beneficial Purchaser
----------------------------------------- -----------------------------------------
Name of authorized signatory (PLEASE PRINT) Telephone Number of Beneficial Purchaser
----------------------------------------- -----------------------------------------
Address of Subscriber Address of Beneficial Purchaser (residence)
-----------------------------------------
Telephone Number of Subscriber Accepted this ____ day of _______________, 2011
SKY HARVEST WINDPOWER CORP.
----------------------------------------- -----------------------------------------
E-mail address of Subscriber Per:
----------------------------------------- -----------------------------------------
Social Security/Tax I.D. No. of Subscriber Authorized Signatory
By signing this acceptance, the Issuer agrees to be bound by the Terms on pages
3 to 5, the General Provisions on pages 5 to 13, the Investor Questionnaire and
the other schedules and appendices incorporated by reference.
SUBSCRIPTION AGREEMENT (WITH RELATED APPENDICES, SCHEDULES AND FORMS)
PAGE 3 OF 16
TERMS
Reference date of this
Subscription Agreement February _______, 2012 (the "AGREEMENT DATE").
THE NON-US OFFERING
The Issuer Sky Harvest Windpower Corp. (the "ISSUER").
Non-US Offering The offering outside of the US (the "NON-US
OFFERING") consists of up to 2,400,000 shares
of common stock (each a "SHARE") of the Issuer.
Issue Price $0.25 per Share.
Total Amount pursuant to the
Non-US Offering Up to $600,000 from the sale of Shares.
Selling Jurisdictions The Shares may be sold in jurisdictions outside
of the United States where they may be lawfully
sold (the "SELLING JURISDICTIONS").
Exemptions The offering will be made in accordance with
the following exemptions:
(a) Regulation S -- Rules Governing Offers and
Sales Made Outside the United States
Without Registration Under the Securities
Act of 1933;
(b) one of categories of registration and
prospectus exemptions provided in National
Instrument 45-106 ("NI 45-106") of the
Canadian Securities Administrators adopted
by the British Columbia Securities
Commission (the "BCSC") and other
provincial securities commissions; and
(c) such other exemptions as may be available
the securities laws of the Selling
Jurisdictions.
Registration of Securities The Shares will not be registered with the
United States Securities and Exchange
Commission (the "SEC").
Resale restrictions and legends The Subscriber acknowledges that any resale of
any of the Shares will be subject to resale
restrictions contained in the securities
legislation applicable to the Subscriber or
proposed transferee. The Subscriber
acknowledges that none of the Shares have been
registered under the 1933 Act or the securities
laws of any state of the United States.
If the Subscriber is resident in any other
jurisdiction other than British Columbia, the
Subscriber understands that any certificates
representing the Shares will bear legends
indicating that the resale of such securities
is restricted, which legends will be
substantially in the following form and with
the necessary information inserted:
UNLESS PERMITTED UNDER SECURITIES LEGISLATION,
THE HOLDER OF THIS SECURITY MUST NOT TRADE THE
SECURITY BEFORE [INSERT THE DATE THAT IS 4
MONTHS AND A DAY AFTER THE DISTRIBUTION DATE].
SUBSCRIPTION AGREEMENT (WITH RELATED APPENDICES, SCHEDULES AND FORMS)
PAGE 4 OF 16
THE SECURITIES REPRESENTED HEREBY HAVE BEEN
OFFERED IN AN OFFSHORE TRANSACTION TO A PERSON
WHO IS NOT A U.S. PERSON (AS DEFINED HEREIN)
PURSUANT TO REGULATION S UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"1933 ACT"). NONE OF THE SECURITIES REPRESENTED
HEREBY HAVE BEEN REGISTERED UNDER THE 1933 ACT,
OR ANY U.S. STATE SECURITIES LAWS, AND, UNLESS
SO REGISTERED, MAY NOT BE OFFERED OR SOLD,
DIRECTLY OR INDIRECTLY, IN THE UNITED STATES
(AS DEFINED HEREIN) OR TO U.S. PERSONS EXCEPT
IN ACCORDANCE WITH THE PROVISIONS OF REGULATION
S UNDER THE 1933 ACT, PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE 1933 ACT, OR
PURSUANT TO AN AVAILABLE 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 COMPLIANCE WITH THE 1933
ACT. "UNITED STATES" AND "U.S. PERSON" ARE AS
DEFINED BY REGULATION S UNDER THE 1933 ACT.
The Subscriber and any Beneficial Purchaser are
advised to consult with their own legal counsel
or advisors to determine the resale
restrictions that may be applicable to them.
Closing Date The completion of the sale and purchase of the
Shares will take place in one or more closings,
on a date or dates as agreed to by the Issuer
and the Subscriber (the "CLOSING DATE").
Use of Proceeds The Issuer intends to use the proceeds from the
sale of the Shares for the commencement of
Turkish natural gas storage operations of
Levant Energy Inc., a British Columbia company
in which the Issuer has an interest, as well as
the Issuer's wind power projects and working
capital purposes
THE ISSUER
Commissions with Jurisdiction
Over the Issuer The "COMMISSIONS WITH JURISDICTION OVER THE
ISSUER" are the United States Securities and
Exchange Commission, any applicable state
securities regulators, the BCSC and any
provincial securities commissions in Canada.
Securities Legislation
Applicable to the Issuer The "SECURITIES LEGISLATION APPLICABLE TO THE
ISSUER" is the 1933 Act, 1934 Act, any
applicable state securities laws, the BC Act and
any applicable provincial securities laws.
END OF TERMS
SUBSCRIPTION AGREEMENT (WITH RELATED APPENDICES, SCHEDULES AND FORMS)
PAGE 5 OF 16
GENERAL PROVISIONS
1. DEFINITIONS
1.1 In the Subscription Agreement (including the first (cover) page, the Terms
on pages 3 to 5, the General Provisions on pages 5 to 13 and the other schedules
and appendices incorporated by reference), the following words have the
following meanings unless otherwise indicated:
(a) "1933 ACT" means the United States Securities Act of 1933, as amended;
(b) "1934 ACT" means the United States Securities Exchange Act of 1934, as
amended;
(c) "APPLICABLE LEGISLATION" means the Securities Legislation Applicable
to the Issuer (as defined on page 5) and all legislation incorporated
in the definition of this term in other parts of the Subscription
Agreement, together with the regulations and rules made and
promulgated under that legislation and all administrative policy
statements, blanket orders and rulings, notices and other
administrative directions issued by the Commissions (as defined
herein);
(d) "BC ACT" has the meaning ascribed to it in the Terms;
(e) "BCI 51-509" has the meaning ascribed to it in the Terms;
(f) "BC LEGEND" has the meaning ascribed to it in section 4.3 hereto.
(g) "BCSC" has the meaning ascribed to it in the Terms;
(h) "BENEFICIAL PURCHASER" means a person for whom the Subscriber is
acting in purchasing the Shares who will be the beneficial owner of
the Securities within the meaning attributed to it by Rule 13d-3
adopted by the SEC under the 1934 Act;
(i) "CLOSING" means the completion of the sale and purchase of the Shares;
(j) "CLOSING DATE" has the meaning ascribed to it in the Terms;
(k) "COMMISSIONS" means the Commissions with Jurisdiction over the Issuer
(as defined on page 5) and the securities commissions incorporated in
the definition of this term in other parts of the Subscription
Agreement;
(l) "FINAL CLOSING DATE" means the final closing date of the US Offering
and Concurrent Non-US Offering, whichever is later. In the event that
the Concurrent Non-US Offering does not close the Final Closing Date
shall be the Closing Date;
(m) "GENERAL PROVISIONS" means those portions of the Subscription
Agreement headed "GENERAL PROVISIONs" and contained on pages 5 to 13;
(n) "ISSUER" has the meaning ascribed to it in the Terms;
(o) "NI 45-106" has the meaning ascribed to it in the Terms;
(p) "PRIVATE PLACEMENT" means the offering of the Securities on the terms
and conditions of this Subscription Agreement;
(q) "SHARE" has the meaning ascribed to it in the Terms;
(r) "SEC" has the meaning ascribed to in the Terms;
SUBSCRIPTION AGREEMENT (WITH RELATED APPENDICES, SCHEDULES AND FORMS)
PAGE 6 OF 16
(s) "SELLING JURISDICTIONS" has the meaning ascribed to it in the Terms;
(t) "SUBSCRIBER" means a U.S. person;
(u) "SUBSCRIPTION AGREEMENT" means the first (cover) page, the Terms on
pages 3 to 5, the General Provisions on pages 5 to 13, the Investor
Questionnaire and the other schedules and appendices incorporated by
reference; and
(v) "TERMS" means those portions of the Subscription Agreement headed
"Terms" and contained on pages 3 to 5.
(w) "U.S. PERSON" has the meaning as defined by Regulation S under the
U.S. Securities Act which definition includes, but is not limited to,
an individual resident in the United States, an estate or trust of
which any executor or administrator or trustee, respectively, is a
U.S. Person and any partnership or corporation organized or
incorporated under the laws of the United States;
1.2 In the Subscription Agreement, the following terms have the meanings defined
in Regulation S of the 1933 Act ("REGULATION S"): "DIRECTED SELLING EFFORTS",
"FOREIGN ISSUER", "SUBSTANTIAL U.S. MARKET INTEREST", "U.S. PERSON" and "UNITED
STATES".
1.3 In the Subscription Agreement, unless otherwise specified, currencies are
indicated in US dollars.
1.4 In the Subscription Agreement, other words and phrases that are capitalized
have the meanings assigned to them in the body hereof.
2. ACKNOWLEDGEMENTS, REPRESENTATIONS AND WARRANTIES OF SUBSCRIBER
2.1 ACKNOWLEDGEMENTS AND AGREEMENTS OF SUBSCRIBER
The Subscriber acknowledges (on its own behalf and, if applicable, on behalf of
each Beneficial Purchaser for whom the Subscriber is contracting hereunder)
that:
(a) none of the Shares have been or will be registered under the 1933 Act,
or under any state securities or "blue sky" laws of any state of the
United States, and, unless so registered, may not be offered or sold
in the United States or, directly or indirectly, to U.S. Persons,
except in accordance with the provisions of Regulation S, pursuant to
an effective registration statement under the 1933 Act, 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 and provincial securities laws;
(b) the Subscriber acknowledges that the Issuer has not undertaken, and
will have no obligation, to register any of the Shares under the 1933
Act or any other securities legislation;
(c) by completing the Investor Questionnaire, the Subscriber is
representing and warranting the Subscriber satisfies one of the
categories of registration and prospectus exemptions provided in NI
45-106;
(d) the decision to execute this Subscription Agreement and acquire the
Shares agreed to be purchased hereunder has not been based upon any
oral or written representation as to fact or otherwise made by or on
behalf of the Issuer and such decision is based entirely upon a review
of any public information which has been filed by the Issuer with the
SEC in compliance, or intended compliance, with applicable securities
legislation;
(e) the Subscriber and the Subscriber's advisor(s) have had a reasonable
opportunity to ask questions of and receive answers from the Issuer in
connection with the distribution of the Shares hereunder, and to
SUBSCRIPTION AGREEMENT (WITH RELATED APPENDICES, SCHEDULES AND FORMS)
PAGE 7 OF 16
obtain additional information, to the extent possessed or obtainable
without unreasonable effort or expense, necessary to verify the
accuracy of the information about the Issuer;
(f) the books and records of the Issuer were available upon reasonable
notice for inspection, subject to certain confidentiality
restrictions, by the Subscriber during reasonable business hours at
its principal place of business, and all documents, records and books
in connection with the distribution of the Shares hereunder have been
made available for inspection by the Subscriber, the Subscriber's
lawyer and/or advisor(s);
(g) all of the information which the Subscriber has provided to the Issuer
is correct and complete as of the date the Subscription Agreement is
signed, and if there should be any change in such information prior to
this Subscription Agreement being executed by the Issuer, the
Subscriber will immediately provide the Issuer with such information;
(h) the Issuer is entitled to rely on the representations and warranties
of the Subscriber contained in this Subscription Agreement and the
Investor Questionnaire and the Subscriber will hold harmless the
Issuer from any loss or damage it or they may suffer as a result of
the Subscriber's failure to correctly complete this Subscription
Agreement or the Investor Questionnaire;
(i) the Subscriber will indemnify and hold harmless the Issuer and, where
applicable, its directors, officers, employees, agents, advisors and
shareholders, from and against any and all loss, liability, claim,
damage and expense whatsoever (including, but not limited to, any and
all fees, costs and expenses whatsoever reasonably incurred in
investigating, preparing or defending against any claim, lawsuit,
administrative proceeding or investigation whether commenced or
threatened) arising out of or based upon any representation or
warranty of the Subscriber contained in this Subscription Agreement,
the Investor Questionnaire or in any document furnished by the
Subscriber to the Issuer in connection herewith being untrue in any
material respect or any breach or failure by the Subscriber to comply
with any covenant or agreement made by the Subscriber to the Issuer in
connection therewith;
(j) the Issuer will refuse to register any transfer of the Shares not made
in accordance with the provisions of Regulation S, pursuant to an
effective registration statement under the 1933 Act or pursuant to an
available exemption from the registration requirements of the 1933 Act
and in accordance with any other applicable securities laws;
(k) the Subscriber has been advised to consult the Subscriber's own legal,
tax and other advisors with respect to the merits and risks of an
investment in the Shares and with respect to applicable resale
restrictions, and it is solely responsible (and the Issuer is not in
any way responsible) for compliance with:
(i) any applicable laws of the jurisdiction in which the Subscriber
is resident in connection with the distribution of the Shares
hereunder, and
(ii) applicable resale restrictions;
(l) in addition to resale restrictions imposed under U.S. securities laws,
there are additional restrictions on the Subscriber's ability to
resell any of the Shares in Canada under the BC Act and BCI 51-509;
(m) the Issuer has advised the Subscriber that the Issuer is relying on an
exemption from the requirements to provide the Subscriber with a
prospectus to issue the Shares and, as a consequence of acquiring the
Shares pursuant to such exemption certain protections, rights and
remedies provided by the applicable securities legislation of British
Columbia including statutory rights of rescission or damages, will not
be available to the Subscriber;
SUBSCRIPTION AGREEMENT (WITH RELATED APPENDICES, SCHEDULES AND FORMS)
PAGE 8 OF 16
(n) others will rely upon the truth and accuracy of the representations
and warranties contained in this Section 2.1 and if such
representations and warranties are no longer accurate or have been
breached, the Subscriber shall immediately notify the Issuer;
(o) neither the SEC nor any other securities commission or similar
regulatory authority has reviewed or passed on the merits of the
Shares;
(p) no documents in connection with the sale of the Shares hereunder have
been reviewed by the SEC or any state securities administrators;
(q) there is no government or other insurance covering any of the Shares;
and
(r) this Subscription Agreement is not enforceable by the Subscriber
unless it has been accepted by the Issuer, and the Subscriber
acknowledges and agrees that the Issuer reserves the right to reject
any Subscription for any reason whatsoever.
2.2 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SUBSCRIBER
The Subscriber represents and warrants to and covenants with the Issuer (on its
own behalf and, if applicable, on behalf of the Beneficial Purchaser from whom
the Subscriber is contracting hereunder) that, as at the date of this
Subscription Agreement and at the Closing:
(a) the Subscriber is resident in the jurisdiction set out under the
heading "Name and Address of Subscriber" on the signature page of this
Subscription Agreement;
(b) it has the legal capacity and competence to enter into and execute
this Subscription Agreement and to take all actions required pursuant
hereto and, if the Subscriber is a corporate entity, it is duly
incorporated and validly subsisting under the laws of its jurisdiction
of incorporation and all necessary approvals by its directors,
shareholders and others have been obtained to authorize execution and
performance of this Subscription Agreement on behalf of the
Subscriber;
(c) the entering into of this Subscription Agreement and the transactions
contemplated hereby do not result in the violation of any of the terms
and provisions of any law applicable to, or the constating documents
of, the Subscriber or of any agreement, written or oral, to which the
Subscriber may be a party or by which the Subscriber is or may be
bound;
(d) the Subscriber has duly executed and delivered this Subscription
Agreement and it constitutes a valid and binding agreement of the
Subscriber enforceable against the Subscriber;
(e) the Subscriber has received and carefully read this Subscription
Agreement;
(f) the Subscriber is aware that an investment in the Issuer is
speculative and involves certain risks, including the possible loss of
the entire investment;
(g) the Subscriber has made an independent examination and investigation
of an investment in the Shares and the Issuer and has depended on the
advice of its legal and financial advisors and agrees that the Issuer
will not be responsible in any way whatsoever for the Subscriber's
decision to invest in the Shares and the Issuer;
(h) the Subscriber (i) has adequate net worth and means of providing for
its current financial needs and possible personal contingencies, (ii)
has no need for liquidity in this investment, and (iii) is able to
bear the economic risks of an investment in the Shares for an
indefinite period of time;
(i) the Subscriber (i) is able to fend for him/her/itself in the
Subscription; (ii) has such knowledge and experience in business
matters as to be capable of evaluating the merits and risks of its
SUBSCRIPTION AGREEMENT (WITH RELATED APPENDICES, SCHEDULES AND FORMS)
PAGE 9 OF 16
prospective investment in the Shares; and (iii) has the ability to
bear the economic risks of its prospective investment and can afford
the complete loss of such investment;
(j) all information contained in the Investor Questionnaire is complete
and accurate and may be relied upon by the Issuer;
(k) the Subscriber understands and agrees that the Issuer and others will
rely upon the truth and accuracy of the acknowledgements,
representations and agreements contained in this Subscription
Agreement and the Investor Questionnaire and agrees that if any of
such acknowledgements, representations and agreements are no longer
accurate or have been breached, the Subscriber shall promptly notify
the Issuer;
(l) the Subscriber is purchasing the Shares for its own account for
investment purposes only and not for the account of any other person
and not for distribution, assignment or resale to others, and no other
person has a direct or indirect beneficial interest is such Shares,
and the Subscriber has not subdivided his interest in the Shares with
any other person;
(m) the Subscriber is not an underwriter of, or dealer in, the shares of
common stock of the Issuer, nor is the Subscriber participating,
pursuant to a contractual agreement or otherwise, in the distribution
of the Shares;
(n) the Subscriber has previously invested in the Issuer and/or has a
pre-existing relationship with the Issuer, is not aware of any
advertisement of any of the Shares and is not acquiring the Shares as
a result of any form of general solicitation or general advertising
including advertisements, articles, notices or other communications
published in any newspaper, magazine or similar media or broadcast
over radio or television, or any seminar or meeting whose attendees
have been invited by general solicitation or general advertising;
(o) no person has made to the Subscriber any written or oral
representations:
(i) that any person will resell or repurchase any of the Shares,
(ii) that any person will refund the purchase price of any of the
Shares,
(iii) as to the future price or value of any of the Shares, or
(iv) that any of the Shares will be listed and posted for trading on
any stock exchange or automated dealer quotation system or that
application has been made to list and post any of the Shares of
the Issuer on any stock exchange or automated dealer quotation
system; and
(p) the Subscriber satisfies one of clauses (i), (ii) or (iii) below:
(i) if the Subscriber is resident in Canada and is, or is deemed to
be, purchasing the Shares as principal for its own account or for
the account of a beneficial purchaser resident in Canada as set
forth in this Subscription Agreement as the "Disclosed Principal"
and not for the benefit of any other person and not with a view
to the resale and distribution of all or any of the Shares and
such resident Canadian is either:
A. purchasing the Shares for an Aggregate Subscription Amount
of not less than CDN$150,000 pursuant to the prospectus
exemption under section 2.10 of NI 45-106,
B. an "affiliate" of the Issuer as defined in NI 45-106, or
SUBSCRIPTION AGREEMENT (WITH RELATED APPENDICES, SCHEDULES AND FORMS)
PAGE 10 OF 16
C. an "Accredited Investor" as defined in NI 45-106
AND HAS EXECUTED AND DELIVERED TO THE INVESTOR QUESTIONNAIRE IN THE
FORM ATTACHED HERETO AS SCHEDULE "A" (with the schedule initialled as
indicated) indicating that the Subscriber fits within one of the
categories of investor set forth therein, OR
(ii) if the Subscriber is resident in a jurisdiction OUTSIDE OF NORTH
AMERICA:
A. the execution of this Subscription Agreement and the final
decision by the Subscriber to acquire the Shares, together
with all acts of solicitation and negotiation, were made
outside of North America,
B. the Subscriber is not purchasing the Shares for the benefit
of any citizen or resident of Canada, or a corporation,
partnership or other entity created in or organized under
the laws of Canada or any province or territory of Canada,
or any U.S. Person,
C. the Subscriber is purchasing the Shares for investment only
and not with a view to the resale or distribution of all or
any of the Shares,
D. the purchase and sale of the Shares as contemplated in this
Subscription Agreement does not contravene any of the
applicable securities laws in the Subscriber's jurisdiction
of residence and does not trigger:
I. any obligation on the part of the Issuer or the Agent
to prepare and file a prospectus, an offering
memorandum or similar document, or any other ongoing
reporting requirements with respect to such purchase or
otherwise, or
II. any registration or other obligation on the part of the
Issuer or the Agent,
and the Subscriber will provide such evidence of compliance with all
such matters as the Issuer or the Agent may request prior to Closing,
and
E. the Subscriber has EXECUTED AND DELIVERED TO THE INVESTOR
QUESTIONNAIRE IN THE FORM ANNEXED HERETO AS SCHEDULE "A"
(with the schedule initialled as indicated) indicating that
the Subscriber fits within one of the categories of investor
as if the Subscriber were a resident of a province or
territory of Canada, OR
(iii)if the Subscriber is not purchasing as principal for its own
account, then:
A. the Subscriber is duly authorized to execute and deliver
this Subscription Agreement and all other necessary
documentation in connection with the purchase of Shares on
behalf of each beneficial purchaser for whom the Subscriber
acts,
B. the Subscriber acknowledges that the Issuer may be required
by law to disclose, on a confidential basis, to certain
regulatory authorities, the identity of each beneficial
purchaser of Shares for whom the Subscriber may be acting
and the Subscriber has disclosed the beneficial purchaser's
identity as the "Disclosed Principal",
SUBSCRIPTION AGREEMENT (WITH RELATED APPENDICES, SCHEDULES AND FORMS)
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C. the Subscriber is purchasing the Shares for investment only
and not with a view to the resale or distribution of all or
any of the Shares, and
D. the Subscriber is resident in, and subject to the securities
laws of, the jurisdiction indicated on the face page of this
Subscription Agreement as the "Subscriber's Address" and if
the Subscriber is acting as agent for one or more Disclosed
Principals, each Disclosed Principal is resident in and
subject to the securities laws of the jurisdiction set forth
in this Subscription Agreement as the "Principal's Address"
and each Disclosed Principal is purchasing as a principal
for its own account, not for the benefit of any other person
and not with a view to the resale or distribution of all or
any of the Shares and each Disclosed Principal has complied
with and satisfies the requirements of one of clauses (i) or
(ii) above;
(q) the Subscriber acknowledges and agrees that the Issuer shall not
consider the Subscriber's Subscription for acceptance unless the
undersigned provides to the Issuer, along with an executed copy of
this Subscription Agreement:
(i) a fully completed and executed copy of each of the Investor
Questionnaire in the form attached hereto as Exhibit A, and
(ii) such other supporting documentation that the Issuer or its legal
counsel may request to establish the Subscriber's qualification
as a qualified investor.
(r) the Subscriber is not a "U.S. Person" and is not acquiring the Shares
for the account or benefit of a U.S. Person or a person in the United
States;
(s) the Shares have not been offered to the Subscriber in the United
States or when the Subscriber was a U.S. Person, and the individuals
making the order to purchase the Shares and executing and delivering
this Subscription Agreement on behalf of the Subscriber were not in
the United States when the order was placed and this Subscription
Agreement was executed and delivered;
(t) the Subscriber is not and will not be purchasing the Shares, directly
or indirectly, for the account or benefit of a U.S. Person or any
person in the United States and the Subscriber does not have any
agreement or understanding (either written or oral) with any U.S.
Person or a person in the United States respecting:
(i) the transfer or assignment of any rights or interests in any of
the Shares
(ii) the division of profit, losses, fees, commissions, or any
financial stake in connection with this Subscription Agreement,
or
(iii) the voting of the Shares.
2.3 RELIANCE, INDEMNITY AND NOTIFICATION OF CHANGES
The representations and warranties in the Subscription Agreement (including the
first (cover) page, the Terms on pages 3 to 5, the General Provisions on pages 5
to 13, the Investor Questionnaire and the other schedules and appendices
incorporated by reference) are made by the Subscriber with the intent that they
be relied upon by the Issuer in determining its suitability as a purchaser of
Shares, and the Subscriber hereby agrees to indemnify the Issuer against all
losses, claims, costs, expenses and damages or liabilities which any of them may
suffer or incur as a result of reliance thereon. The Subscriber undertakes to
notify the Issuer immediately of any change in any representation, warranty or
other information relating to the Subscriber set forth in the Subscription
Agreement (including the first (cover) page, the Terms on pages 3 to 5, the
General Provisions on pages 5 to 13, the Investor Questionnaire and the other
SUBSCRIPTION AGREEMENT (WITH RELATED APPENDICES, SCHEDULES AND FORMS)
PAGE 12 OF 16
schedules and appendices incorporated by reference) which takes place prior to
the Closing.
2.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The representations and warranties contained in this Section will survive the
Closing.
3. ACKNOWLEDGEMENT AND WAIVER
The Subscriber has acknowledged that the decision to acquire the Shares was
solely made on the basis of publicly available information. The Subscriber
hereby waives, to the fullest extent permitted by law, any rights of withdrawal,
rescission or compensation for damages to which the Subscriber might be entitled
in connection with the distribution of any of the Shares.
4. RESALE RESTRICTIONS
4.1 The Subscriber acknowledges that any resale of any of the Shares will be
subject to resale restrictions contained in the securities legislation
applicable to the Subscriber or proposed transferee. The Subscriber acknowledges
that none of the Shares have been registered under the 1933 Act or the
securities laws of any state of the United States. The Shares may not be offered
or sold in the United States unless registered in accordance with federal
securities laws and all applicable state securities laws or exemptions from such
registration requirements are available.
4.2 The Subscriber acknowledges that the Shares are subject to resale
restrictions in Canada and may not be traded in Canada except as permitted by
the applicable provincial securities laws and the rules made thereunder.
4.3 If the Subscriber is not a resident of British Columbia or any other
jurisdiction of Canada, the Subscriber represents, warrants and acknowledges
that:
(a) a subsequent trade in the Shares in or from British Columbia or any
other jurisdiction of Canada will be a distribution subject to the
prospectus and registration requirements of Applicable Canadian
Securities Laws unless certain conditions are met, which conditions
include, among others, a requirement that any certificate representing
the Shares (or ownership statement issued under a direct registration
system or other book entry system) bear the restrictive legend
specified in BCI 51-509 (the "BC LEGEND") or the restrictive legend
specified in NI 45-102 (the "CSA LEGEND");
(b) the Subscriber is not a resident of Canada and undertakes not to trade
or resell any of the Shares in or from Canada unless the trade or
resale is made in accordance with BCI 51-509 or NI 45-102, as
applicable. The Subscriber understands and agrees that the Issuer and
others will rely upon the truth and accuracy of these representations
and warranties made in this Section 4 and agrees that if such
representations and warranties are no longer accurate or have been
breached, the Subscriber shall immediately notify the Issuer;
(c) by executing and delivering this Subscription Agreement and as a
consequence of the representations and warranties made by the
Subscriber in this Section 4, the Subscriber will have directed the
Issuer not to include the BC Legend or the CSA Legend on any
certificates representing the Shares to be issued to the Subscriber.
As a consequence, the Subscriber will not be able to rely on the
resale provisions of BCI 51-509 or NI 45-102, and any subsequent trade
in any of the Shares in or from British Columbia or any other
jurisdiction of Canada will be a distribution subject to the
prospectus and registration requirements of Applicable Canadian
Securities Laws; and
(d) if the Subscriber wishes to trade or resell any of the Shares in or
from British Columbia or any other jurisdiction of Canada, the
Subscriber agrees and undertakes to return, prior to any such trade or
SUBSCRIPTION AGREEMENT (WITH RELATED APPENDICES, SCHEDULES AND FORMS)
PAGE 13 OF 16
resale, any certificate representing the Shares to the Issuer's
transfer agent to have the BC Legend or the CSA Legend, as applicable,
imprinted on such certificate or to instruct the Issuer's transfer
agent to include the BC Legend or the CSA Legend, as applicable on any
ownership statement issued under a direct registration system or other
book entry system.
5. COLLECTION OF PERSONAL INFORMATION
5.1 The Subscriber acknowledges and consents to the fact that the Issuer is
collecting the Subscriber's personal information for the purpose of fulfilling
this Subscription Agreement and completing the offering. The Subscriber's
personal information (and, if applicable, the personal information of those on
whose behalf the Subscriber is contracting hereunder) may be disclosed by the
Issuer to (a) stock exchanges or securities regulatory authorities, (b) the
Issuer's registrar and transfer agent, (c) Canadian tax authorities, (d)
authorities pursuant to the PROCEEDS OF CRIME (MONEY LAUNDERING) AND TERRORIST
FINANCING ACT (Canada) and (e) any of the other parties involved in the US
Offering, including legal counsel, and may be included in record books in
connection with the offering. By executing this Subscription Agreement, the
Subscriber is deemed to be consenting to the foregoing collection, use and
disclosure of the Subscriber's personal information (and, if applicable, the
personal information of those on whose behalf the Subscriber is contracting
hereunder) and to the retention of such personal information for as long as
permitted or required by law or business practice. Notwithstanding that the
Subscriber may be purchasing Shares as agent on behalf of an undisclosed
principal, the Subscriber agrees to provide, on request, particulars as to the
identity of such undisclosed principal as may be required by the Issuer in order
to comply with the foregoing.
5.2 Furthermore, the Subscriber is hereby notified that:
(a) the Issuer may deliver to a provincial securities commission in Canada
and/or the SEC certain personal information pertaining to the
Subscriber, including such Subscriber's full name, residential address
and telephone number, the number of shares or other securities of the
Issuer owned by the Subscriber, the number of Shares purchased by the
Subscriber and the total purchase price paid for such Shares, the
prospectus exemption relied on by the Issuer and the date of
distribution of the Shares,
(b) such information is being collected indirectly by a provincial
securities commission in Canada under the authority granted to it in
securities legislation, and
(c) such information is being collected for the purposes of the
administration and enforcement of the securities legislation of
Canada.
6. ISSUER'S ACCEPTANCE
The Subscription Agreement, when executed by the Subscriber, and delivered to
the Issuer, will constitute a subscription for the Shares which will not be
binding on the Issuer until accepted by the Issuer by executing the Subscription
Agreement in the space provided on the face page(s) of the Subscription
Agreement and, notwithstanding the Agreement Date, if the Issuer accepts the
subscription by the Subscriber, the Subscription Agreement will be entered into
on the date of such execution by the Issuer.
7. CLOSING
7.1 On or before the end of the business day before the Closing Date, the
Subscriber shall deliver to the Issuer or the Issuer's lawyers the Subscription
Agreement and all applicable schedules and required forms, duly executed, and
wire payment in full for the total price of the Shares to be purchased by the
Subscriber to the Issuer pursuant to the wiring instruction provided by the
Issuer.
7.2 At Closing, the Issuer will deliver to the Subscriber the certificates
representing the Shares purchased by the Subscriber registered in the name of
the Subscriber or its nominee, or as directed by the Subscriber.
SUBSCRIPTION AGREEMENT (WITH RELATED APPENDICES, SCHEDULES AND FORMS)
PAGE 14 OF 16
7.3 Where the funds for the purchase of the Shares are delivered to the Issuer,
the Issuer is entitled to treat such funds as an interest free loan to the
Issuer until such time as the subscription for the Shares is accepted and the
certificates representing the Shares have been issued to the Subscriber.
8. MISCELLANEOUS
8.1 The Subscriber agrees to sell, assign or transfer the Shares only in
accordance with the requirements of applicable securities laws and any legends
placed on the Shares as contemplated by the Subscription Agreement.
8.2 The Subscriber hereby authorizes the Issuer to correct any minor errors in,
or complete any minor information missing from any part of the Subscription
Agreement and any other schedules, forms, certificates or documents executed by
the Subscriber and delivered to the Issuer in connection with the Private
Placement.
8.3 The Issuer will be entitled to rely on delivery by facsimile machine or
e-mail of an executed copy of this Subscription Agreement, and acceptance by the
Issuer of such facsimile or e-mail copy shall be equally effective to create a
valid and binding agreement between the Subscriber and the Issuer in accordance
with the terms hereof. If less than a complete copy of this Subscription
Agreement is delivered to the Issuer at Closing, the Issuer and its counsel 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. This
Subscription Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original and all of which together shall
constitute one and the same Subscription Agreement.
8.4 Without limitation, this subscription and the transactions contemplated by
this Subscription Agreement are conditional upon and subject to the Issuer's
having obtained such regulatory approval of this subscription and the
transactions contemplated by this Subscription Agreement as the Issuer considers
necessary.
8.5 This Subscription Agreement is not assignable or transferable by the parties
hereto without the express written consent of the other party to this
Subscription Agreement.
8.6 Time is of the essence of this Subscription Agreement.
8.7 Except as expressly provided in this Subscription Agreement and in the
agreements, instruments and other documents contemplated or provided for in this
Subscription Agreement, this Subscription Agreement contains the entire
agreement between the parties with respect to the Shares and there are no other
terms, conditions, representations or warranties whether expressed, implied,
oral or written, by statute, by common law, by the Issuer, or by anyone else.
8.8 The parties to this Subscription Agreement may amend this Subscription
Agreement only in writing.
8.9 This Subscription Agreement enures to the benefit of and is binding upon the
parties to this Subscription Agreement and their successors and permitted
assigns.
8.10 A party to this Subscription Agreement will give all notices to or other
written communications with the other party to this Subscription Agreement
concerning this Subscription Agreement by hand or by registered mail addressed
to the address given on page 1.
8.11 This Subscription Agreement is to be read with all changes in gender or
number as required by the context.
8.12 This Subscription Agreement will be governed by and construed in accordance
with the internal laws of State of Nevada (without reference to its rules
governing the choice or conflict of laws).
End of General Provisions
SUBSCRIPTION AGREEMENT (WITH RELATED APPENDICES, SCHEDULES AND FORMS)
PAGE 15 OF 16
EXHIBIT A
INVESTOR QUESTIONNAIRE
All capitalized terms herein, unless otherwise defined, have the meanings
ascribed thereto in the Subscription Agreement between the undersigned and Sky
Harvest Windpower Corp. (the "COMPANY").
The purpose of this Questionnaire is to assure the Company that the Subscriber
will meet certain requirements of National Instrument 45-106 ("NI 45-106"). The
Company will rely on the information contained in this Questionnaire for the
purposes of such determination.
The Subscriber covenants, represents and warrants to the Company that:
1. if the Subscriber is not a resident of Ontario, the Subscriber is (TICK ONE
OR MORE OF THE FOLLOWING BOXES):
[ ] (A) a director, executive officer, founder or control person of the
Company or an affiliate of the Company
[ ] (B) a spouse, parent, grandparent, brother, sister or child of a
director, executive officer, founder or control person of the
Company or an affiliate of the Company
[ ] (C) a parent, grandparent, brother, sister or child of the spouse of
a director, executive officer, founder or control person of the
Company or an affiliate of the Company
[ ] (D) a close personal friend of a director, executive officer, founder
or control person of the Company
[ ] (E) a close business associate of a director, executive officer,
founder or control person of the Company or an affiliate of the
Company
[ ] (F) an accredited investor
[ ] (G) a company, partnership or other entity of which a majority of the
voting securities are beneficially owned by, or a majority of the
directors are, persons described in paragraphs A to F
[ ] (H) a trust or estate of which all of the beneficiaries or a majority
of the trustees or executors are persons described in paragraphs
A to F
2. if the Subscriber has checked box B, C, D, E, G or H in Section 1 above,
the director, executive officer, founder or control person of the Company
with whom the undersigned has the relationship is:
---------------------------------------------------------------------------
(INSTRUCTIONS TO SUBSCRIBER: FILL IN THE NAME OF EACH DIRECTOR, EXECUTIVE
OFFICER, FOUNDER AND CONTROL PERSON WHICH YOU HAVE THE ABOVE-MENTIONED
RELATIONSHIP WITH. IF YOU HAVE CHECKED BOX G OR H, ALSO INDICATE WHICH OF A
TO F DESCRIBES THE SECURITYHOLDERS, DIRECTORS, TRUSTEES OR BENEFICIARIES
WHICH QUALIFY YOU AS BOX G OR H AND PROVIDE THE NAMES OF THOSE INDIVIDUALS.
PLEASE ATTACH A SEPARATE PAGE IF NECESSARY).
3. if the Subscriber is resident in Ontario, the Subscriber is (TICK ONE OR
MORE OF THE FOLLOWING BOXES):
[ ] (A) a founder of the Company
SUBSCRIPTION AGREEMENT (WITH RELATED APPENDICES, SCHEDULES AND FORMS)
PAGE 16 OF 16
[ ] (B) an affiliate of a founder of the Company
[ ] (C) a spouse, parent, brother, sister, grandparent or child of an
executive officer, director or founder of the Company
[ ] (D) a control person of the Company
[ ] (E) an accredited investor
4. if the Subscriber has checked box C in Section 3 above, the executive
officer, director or founder of the Company with whom the undersigned has
the relationship is:
---------------------------------------------------------------------------
(INSTRUCTIONS TO SUBSCRIBER: FILL IN THE NAME OF EACH EXECUTIVE OFFICER,
DIRECTOR OR FOUNDER WHICH YOU HAVE THE ABOVE-MENTIONED RELATIONSHIP WITH.)
5. if the Subscriber has ticked box F in Section 1 or box E in Section 3
above, the Subscriber satisfies one or more of the categories of
"accredited investor" (as that term is defined in NI 45-106) indicated
below (please check the appropriate box):
[ ] (a) an individual who either alone or with a spouse beneficially owns
financial assets (as defined in NI 45-106) having an aggregate
realizable value that before taxes, but net of any related
liabilities, exceeds CDN$1,000,000;
[ ] (b) an individual whose net income before taxes exceeded CDN$200,000
in each of the two more recent calendar years or whose net income
before taxes combined with that of a spouse exceeded CDN$300,000 in
each of those years and who, in either case, reasonably expects to
exceed that net income level in the current calendar year;
[ ] (c) an individual who, either alone or with a spouse, has net assets
of at least CDN $5,000,000;
[ ] (d) a person, other than an individual or investment fund, that had
net assets of at least CDN$5,000,000 as reflected on its most recently
prepared financial statements; or
[ ] (e) a person in respect of which all of the owners of interests,
direct, indirect or beneficial, except the voting securities required
by law are persons or companies that are accredited investors.
The Subscriber acknowledges and agrees that the Subscriber may be required by
the Company to provide such additional documentation as may be reasonably
required by the Company and its legal counsel in determining the Subscriber's
eligibility to acquire the Shares under relevant legislation.
IN WITNESS WHEREOF, the undersigned has executed this Questionnaire as of the
________ day of ______________________, 2011.
If an Individual: If a Corporation, Partnership or
Other Entity:
----------------------------------- ----------------------------------
Signature Print or Type Name of Entity
----------------------------------- ----------------------------------
Print or Type Name Signature of Authorized Signatory
----------------------------------
Type of Entit
