| TO: | PEACE ARCH ENTERTAINMENT GROUP INC. |
| 1. | one (1) signed copy of this Subscription Agreement with the information on the following page completed; | |
| 2. | a certified cheque or bank draft in an amount equal to the aggregate Subscription Price, payable in Canadian funds to “Peace Arch Entertainment Group Inc.” unless other acceptable payment arrangements have been made; and | |
| 3. | one (1) signed copy of the Certificate of a U.S. Person in the form attached to this Subscription Agreement as Schedule “A”. |
| Todd R. Wagner | ||||||
| Account Reference (if applicable): | ||||||
By:
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/s/ Todd R. Wagner | |||||
| Authorized Signature | ||||||
| (Official Capacity or Title — if the Subscriber is not an individual) | ||||||
| (Name of individual whose signature appears above if different than the name of the subscriber printed above.) | ||||||
| (Subscriber’s Address, including Province or Territory) | ||||||
| (“jurisdiction”) | ||||||
| 3008 Taylor St, Dallas, Texas 75226 | ||||||
| (Telephone Number) | (Email Address) | |||||
Account Registration Information: |
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(Name) |
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(Account Reference, if applicable) |
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(Address, including Postal Code) |
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Number and kind of securities of the Corporation held, if any: |
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| If the Subscriber is signing as agent for a principal (beneficial purchaser) and is not purchasing as trustee or agent for accounts fully managed by it, complete the following: | ||
(Name of Principal) |
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(Principal’s Address) |
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(Telephone Number)
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(Email Address) | |
| Delivery Instructions as set forth below: | ||
| o Same as registered address, or | ||
(Name) |
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(Account Reference, if applicable) |
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(Address) |
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(Contact Name)
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(Telephone Number) | |
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| (a) | payment by the Subscriber of the Subscription Price by certified cheque, bank draft or other acceptable electronic means in Canadian dollars payable to “Peace Arch Entertainment Group Inc.”; | ||
| (b) | the Subscriber having properly completed, signed and delivered this Subscription Agreement to: |
| Peace Arch Entertainment Group Inc. | ||||
| 124 Merton Street, Suite 407 | ||||
| Toronto, Ontario M4S 2Z2 | ||||
| Attention: | Gary Howsam | |||
| Fax: | (416) 487-0377 | |||
| (c) | the Subscriber having properly completed, signed and delivered a Certificate of a U.S. Person, attached hereto as Schedule “A”, evidencing the Subscriber’s status as an accredited investor resident in the United States: |
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| (a) | The Subscriber and each beneficial person for whom it is acting is a resident or, if not an individual, has the head office in the jurisdiction set out on the page following the face page of this Subscription Agreement and intends that the Securities Laws of that jurisdiction govern the issuance of Common Shares to the Subscriber under the Offering. Such address was not created and is not used solely for the purpose of acquiring the Purchased Shares. The Subscriber and any beneficial owner for whom it is acting was not created or used solely to purchase or hold securities in reliance upon an exemption from a prospectus requirement. | ||
| (b) | The Subscriber has properly completed, executed and delivered to the Corporation within applicable time periods the Certificate of a U.S. Person (dated as of the date hereof) set forth in Schedule “B” and the information contained therein is true and correct. | ||
| (c) | The representations, warranties and covenants contained in the Certificate of a U.S. Person, attached hereto as Schedule “B”, will be true and correct both as of the date of execution of this Subscription Agreement and as of the Closing Time. | ||
| (d) | The Subscriber is a U.S. Person, or is not a U.S. Person but was offered the Purchased Shares, or executed or delivered this Subscription Agreement, in the United States of America, or is purchasing the Purchased Shares for the account of or benefit of a U.S. Person or a person in the United States of America or is otherwise subject to the securities laws of the United States of America. | ||
| (e) | Neither the Subscriber nor any person for whom it is acting will offer, sell or otherwise dispose of the Purchased Shares in the United States or to a U.S. Person or a person in the United States unless the Corporation has consented to such offer, sale or distribution and such offer, sale or disposition is made in accordance with an exemption from the registration requirements under the U.S. Securities Act and the securities laws of all applicable states of the United States or the U.S. Securities and Exchange Commission has declared effective a registration statement in respect of such securities. | ||
| (f) | The execution and delivery of this Subscription Agreement, the performance and compliance with the terms hereof, the subscription for the Purchased Shares and the completion of the transactions described herein by the Subscriber will not result in any material breach of, or be in conflict with or constitute a material default under, or create a state of facts which, after notice or lapse of time, or both, would constitute a material default under any term or provision of the constating documents, by-laws or resolutions of the Subscriber, the Securities |
| Laws or any other laws applicable to the Subscriber, any agreement to which the Subscriber is a party, or any judgment, decree, order, statute, rule or regulation applicable to the Subscriber. | |||
| (g) | The Subscriber is subscribing for the Purchased Shares as principal for its own account and not for the benefit of any other person (within the meaning of applicable Securities Laws) and not with a view to resale or distribution of all or any of the Purchased Shares or if it is not subscribing as principal, it acknowledges that the Corporation may be required by law to disclose to certain regulatory authorities the identity of each beneficial purchaser for the Purchased Shares for whom it is acting. | ||
| (h) | In the case of a subscription for the Purchased Shares by the Subscriber acting as trustee or agent (including, for greater certainty, a portfolio manager or comparable adviser) for a principal, the Subscriber is duly authorized to execute and deliver this Subscription Agreement and all other necessary documentation in connection with such subscription on behalf of each such beneficial person, each of whom is subscribing as principal for its own account, not for the benefit of any other person and not with a view to the resale or distribution of the Purchased Shares and this Subscription Agreement has been duly authorized, executed and delivered by or on behalf of and constitutes a legal, valid and binding agreement of, such principal, and the Subscriber acknowledges that the Corporation may be required by law to disclose the identity of each beneficial purchaser for whom the Subscriber is acting. | ||
| (i) | In the case of a subscription for the Purchased Shares by the Subscriber acting as principal, this Subscription Agreement has been duly authorized, executed and delivered by, and constitutes a legal, valid and binding agreement of, the Subscriber. This Subscription Agreement is enforceable in accordance with its terms against the Subscriber and any beneficial purchasers on whose behalf the Subscriber is acting. | ||
| (j) | If the Subscriber, or (if applicable) any beneficial purchaser for whom the Subscriber is contracting hereunder, is: |
| (i) | a corporation, the Subscriber or beneficial purchaser, if applicable, is duly incorporated and is validly subsisting under the laws of its jurisdiction of incorporation and has all requisite legal and corporate power and authority to execute and deliver this Subscription Agreement, to subscribe for the Purchased Shares as contemplated herein and to carry out and perform its obligations under the terms of this Subscription Agreement and the individual signing the Subscription Agreement has been duly authorized to execute this Subscription Agreement; | ||
| (ii) | a partnership, syndicate or other form of unincorporated organization, the Subscriber or beneficial purchaser, if applicable, has the necessary legal capacity and authority to execute and deliver this Subscription Agreement and to observe and perform its covenants and obligations hereunder and has obtained all necessary approvals in respect thereof; or |
| (iii) | an individual, the Subscriber or beneficial purchaser, if applicable, is of the full age of majority in the jurisdiction in which he or she is resident and is legally competent to execute and be bound by this Subscription Agreement and to observe and perform his or her covenants and obligations hereunder. |
| (k) | There is no person acting or purporting to act in connection with the transactions contemplated herein who is entitled to any brokerage or finder’s fee. If any person establishes a claim that any fee or other compensation is payable in connection with this subscription for the Purchased Shares, the Subscriber covenants to indemnify and hold harmless the Corporation with respect thereto and with respect to all costs reasonably incurred in the defence thereof. | ||
| (l) | The Subscriber is not, with respect to the Corporation or any of its affiliates, a Control Person or a “promoter” within the meaning of the Securities Laws. | ||
| (m) | The Subscriber, and each beneficial purchaser for whom it is contracting, is at arm’s length within the meaning of the applicable Securities Laws and the policies of the TSX, with the Corporation. | ||
| (n) | If required by applicable Securities Laws or the Corporation, the Subscriber will execute, deliver and file or assist the Corporation in filing such reports, undertakings and other documents with respect to the issue of the Purchased Shares as may be required by any securities commission, stock exchange or other regulatory authority. | ||
| (o) | The purchase of the Common Shares by the Subscriber hereunder is not a transaction in which any director or officer of the Corporation, or any beneficial owner of 10% of the voting rights attending to all outstanding voting securities of the Corporation, has a direct or indirect beneficial interest unless the Subscriber has otherwise notified the Corporation. | ||
| (p) | The Subscriber, and each beneficial person for whom it is contracting hereunder, have been independently advised to consult their own legal advisors with respect to trading in the Purchased Shares, the resale restrictions imposed by the Securities Laws of the province in which the Subscriber resides or to which the Subscriber is subject and by the policies of the TSX and the Subscriber is solely responsible (and the Corporation is not in any way responsible) for compliance with applicable resale restrictions and the Subscriber is aware that it (or beneficial persons for whom it is contracting hereunder) may not be able to resell such securities except in accordance with limited exemptions under the Securities Laws and other applicable securities laws. | ||
| (q) | The Subscriber, and each beneficial person for whom it is contracting hereunder, has not received or been provided with a prospectus or offering memorandum, within the meaning of the Securities Laws, or any document in connection with the Offering, and the Subscriber’s decision to subscribe for the Purchased Shares was not based upon, and the Subscriber, and each beneficial person for whom it is contracting hereunder, has not relied upon, any verbal or written representations as to fact or otherwise made by or on behalf of the Corporation. The Subscriber’s decision to subscribe for the Purchased Shares was based solely |
| upon the information about the Corporation which is publicly available (any such information having been obtained by the Subscriber without independent investigation or verification by the Corporation). | |||
| (r) | The Subscriber is not purchasing Purchased Shares with knowledge of material information concerning the Corporation which has not been generally disclosed. | ||
| (s) | No person has made any written or oral representations: |
| (i) | that any person will resell or repurchase the Purchased Shares; | ||
| (ii) | that any person will refund the Subscription Price; or | ||
| (iii) | as to the future price or value of the Purchased Shares. |
| (t) | There are risks associated with the purchase of and investment in the Purchased Shares and the Subscriber, and each beneficial person for whom it is contracting hereunder, is knowledgeable, sophisticated and experienced in business and financial matters and is capable of evaluating the merits and risks of an investment in the Purchased Shares, fully understands the restrictions on resale of the Purchased Shares and is able to bear the economic risk of an investment in the Purchased Shares. |
| (a) | No securities commission, agency, governmental authority, regulatory body, stock exchange or similar regulatory authority has reviewed, passed, made any finding or determination, or recommended or endorsed on the merits of the Purchased Shares. | ||
| (b) | There are restrictions on the Subscriber’s ability to resell the Purchased Shares and it is the responsibility of the Subscriber to find out what those restrictions are and to comply with them before selling the Purchased Shares. | ||
| (c) | The Purchased Shares shall be subject to statutory resale restrictions under the Securities Laws of the jurisdiction in which the Subscriber resides and under other applicable securities laws, and the Subscriber covenants that it will not resell the Purchased Shares except in compliance with such laws and the Subscriber acknowledges that it is solely responsible (and the Corporation is in no way responsible) for such compliance. | ||
| (d) | The Subscriber’s ability to transfer the Purchased Shares is limited by, among other things, applicable Securities Laws. | ||
| (e) | The certificates representing the Purchased Shares will bear, as of the Closing Date, legends substantially in the following form and with the necessary information inserted: |
| (f) | The Subscriber, and each beneficial person for whom it is contracting hereunder, shall execute, deliver, file and otherwise assist the Corporation with filing all documentation required by the applicable Securities Laws to permit the subscription for the Purchased Shares and the issuance of the Purchased Shares. | ||
| (g) | The Corporation is relying on an exemption from the requirement to provide the Subscriber with a prospectus under the Securities Laws and as a consequence of acquiring the Purchased Shares pursuant to such exemption: |
| (i) | certain protections, rights and remedies provided by applicable Securities Laws, including statutory rights of rescission and certain statutory remedies against an issuer, underwriters, auditors, directors and officers that are available to investors who acquire securities offered by a prospectus, will not be available to the Subscriber and each beneficial person for whom it is contracting hereunder, or, if applicable, others for whom you are contracting hereunder; | ||
| (ii) | the common law may not provide investors with an adequate remedy in the event that they suffer investment losses in connection with securities acquired in a private placement; | ||
| (iii) | the Subscriber and each beneficial person for whom it is contracting hereunder, may not receive information that would otherwise be required to be given under applicable Securities Laws; and | ||
| (iv) | the Corporation is relieved from certain obligations that would otherwise apply under applicable Securities Laws. |
| (h) | The Subscriber, and each beneficial person for whom it is contracting hereunder, is responsible for obtaining such legal, investment, tax and other professional advice as it considers appropriate in connection with the execution, delivery and performance of this Subscription Agreement and the transactions contemplated |
| under this Subscription Agreement (including the resale and transfer restrictions referred to herein), and, without limiting the generality of the foregoing, the Corporation’s counsel are acting solely as counsel to the Corporation and not as counsel to the Subscriber. | |||
| (i) | There are risks associated with the purchase of the Purchased Shares. | ||
| (j) | The funds which will be advanced by the Subscriber to the Corporation hereunder will not represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) Act (Canada) (the “PCMLA”) and the Subscriber acknowledges that the Corporation may in the future be required by law to disclose the Subscriber’s name and other information relating to this Subscription Agreement and the Subscriber’s subscription hereunder, on a confidential basis, pursuant to the PCMLA. To the best of its knowledge (a) none of the subscription funds to be provided by the Subscriber (i) have been or will be derived from or related to any activity that is deemed criminal under the law of Canada, the United States, or any other jurisdiction, or (ii) are being tendered on behalf of a person or entity who has not been identified to the Subscriber, and (b) it shall promptly notify the Corporation if the Subscriber discovers that any of such representations ceases to be true, and to provide the Corporation with appropriate information in connection therewith. | ||
| (k) | The Subscriber and any others for whom it is contracting hereunder acknowledge that the sale of the Purchased Shares was not accompanied by any advertisement in printed media of general and regular paid circulation including printed public media, radio, television or telecommunications, including electronic display and the Internet. | ||
| (l) | The Subscriber, and each beneficial purchaser for whom it is contracting herewith, is solely responsible for its own due diligence investigation of the Corporation and its business, for its own analysis of the merits and risks of its investment in the Purchased Shares made pursuant to this Subscription Agreement and for its own analysis of the terms of its investment. |
| (a) | The Subscriber acknowledges and consents to the fact that the Corporation is collecting the Subscriber’s (and any beneficial purchaser for which the Subscriber is contracting hereunder) personal information for the purpose of completing the Subscriber’s subscription. The Subscriber acknowledges and consents to the Corporation retaining the personal information for so long as permitted or required by applicable law or business practices. The Subscriber further acknowledges and consents to the fact that the Corporation may be required by Securities Laws, stock exchange rules and/or Investment Dealers Association of Canada rules to provide regulatory authorities any personal information provided by the Subscriber respecting itself (and any beneficial purchaser for which the Subscriber is contracting hereunder). The Subscriber represents and warrants that it has the authority to provide the consents and acknowledgements set out in this paragraph on behalf of all beneficial purchasers for which the Subscriber is contracting. In addition to the foregoing, the Subscriber agrees and acknowledges that the Corporation may use and disclose its personal information, or that of each beneficial purchaser for whom it is contracting hereunder, as follows: |
| (i) | for internal use with respect to managing the relationships between and contractual obligations of the Corporation and the Subscriber or any beneficial purchaser for whom the Subscriber is contracting hereunder; |
| (ii) | for use and disclosure for income tax related purposes, including without limitation, where required by law, disclosure to Canada Revenue Agency; | ||
| (iii) | for disclosure to securities regulatory authorities and other regulatory bodies with jurisdiction with respect to reports of trades and similar regulatory filings; | ||
| (iv) | for 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; | ||
| (v) | for disclosure to professional advisers of the Corporation in connection with the performance of their professional services; | ||
| (vi) | for disclosure to any person where such disclosure is necessary for legitimate business reasons and is made with the Subscriber’s prior written consent; | ||
| (vii) | for disclosure to a court determining the rights of the parties under this Subscription Agreement; or | ||
| (viii) | for use and disclosure as otherwise required or permitted by law. |
| (a) | Any notice, direction or other instrument required or permitted to be given to any party hereto shall be in writing and shall be sufficiently given if delivered personally, or transmitted by facsimile tested prior to transmission to such party, as follows: |
| (i) | in the case of the Corporation, to: |
| (ii) | in the case of the Subscriber, at the address specified on the face page hereof. |
| (b) | Any such notice, direction or other instrument, if delivered personally, shall be deemed to have been given and received on the day on which it was delivered, provided that if such day is not a Business Day then the notice, direction or other instrument shall be deemed to have been given and received on the first Business Day next following such day and if transmitted by fax, shall be deemed to have been given and received on the day of its transmission, provided that if such day is not a Business Day or if it is transmitted or received after the end of normal |
| business hours then the notice, direction or other instrument shall be deemed to have been given and received on the first Business Day next following the day of such transmission. | |||
| (c) | Any party hereto may change its address for service from time to time by notice given to each of the other parties hereto in accordance with the foregoing provisions. |
| PEACE ARCH ENTERTAINMENT GROUP INC. | ||||||
| Per: | ||||||