EXHIBIT 4.4
BPI INDUSTRIES INC.
ACKNOWLEDGMENT OF RECEIPT OF CONFIDENTIAL PRIVATE PLACEMENT MEMORANDUM
No. ___________
The undersigned, as a condition to the receipt of the Confidential Private
Placement Memorandum of BPI Industries Inc. dated December __, 2004 (the
"Memorandum"), represents and agrees as follows:
I acknowledge receipt of the numbered Memorandum. I acknowledge that the
Memorandum is furnished to me on a confidential basis solely for the
purpose of enabling me to evaluate whether to subscribe for the Units
offered by BPI (the "Offering") and I agree not to further distribute it
except to my legal, financial and other personal advisors, if any, who
will use the Memorandum on my behalf solely for purposes of evaluating the
Offering. Any reproduction or distribution of the Memorandum, in whole or
in part, or the disclosure of the contents for any other purpose is
prohibited. By accepting the Memorandum, I agree to be bound by all terms
and conditions specified therein.
EXECUTION OF THIS DOCUMENT DOES NOT INDICATE ANY INTENT TO SUBSCRIBE FOR OR
PURCHASE THE SECURITIES OFFERED IN THE MEMORANDUM.
Dated: _____________________, 2004
________________________________________
(Signature)
________________________________________
(Name)
________________________________________
(Address)
________________________________________
(Address)
________________________________________
(City, State, Zip)
THIS DOCUMENT MUST BE SIGNED AT THE TIME YOU RECEIVE THE ATTACHED
CONFIDENTIAL PRIVATE PLACEMENT MEMORANDUM AND RETURNED TO THE PLACEMENT AGENT.
BPI INDUSTRIES INC.
REMITTANCE INSTRUCTIONS
For Investor: ___________________
Amount of Investment: $____________________
PLEASE CHECK ONE OF THE OPTIONS BELOW TO INDICATE YOUR METHOD OF PAYMENT, SIGN
AND DATE THE FORM, AND RETURN IT TO SANDERS MORRIS HARRIS, WITH REMITTANCE IF
APPROPRIATE. YOUR REMITTANCE MUST BE RECEIVED NO LATER THAN DECEMBER 31, 2004,
UNLESS THE DATE FOR PAYMENT IS EXTENDED.
================================================================================
_____ I have an account with Sanders Morris Harris and wish to pay the amount of
my investment from such account:
To Sanders Morris Harris Inc.: Please accept this letter as
your authorization to pay $_______________ to "BPI Industries
Inc. Escrow Account" from my account number ________________.
================================================================================
_____ Attached is my check payable to "BPI Industries Inc. Escrow Account" in
the amount of my investment.
================================================================================
_____ I will wire the amount of my investment on (date) ______________, using
the following wiring instructions:
[REDACTED]
Signed: ________________________________________________ Dated: ____________
Registered Owner
Please include this form with your subscription documents.
____________________________
Name of Investor
BPI INDUSTRIES INC.
CONFIDENTIAL PRIVATE PLACEMENT
SUBSCRIPTION DOCUMENTS
3
BPI INDUSTRIES INC.
INSTRUCTIONS FOR SUBSCRIBING
A Subscription Agreement to subscribe to purchase Units of BPI Industries
Inc. (the "Company"), a British Columbia corporation, is attached. Each Unit is
comprised of two shares of common stock, without par value (the "Common Stock"),
and one warrant (the "Investor Warrant") as described in the Memorandum. Please
follow these instructions:
1. Please read the entire Subscription Agreement before you sign it.
2. Please complete and sign the Signature Page on the Subscription
Agreement.
3. Be sure to indicate in the space provided on the Signature Page the
dollar amount for the aggregate number of Units for which you wish to subscribe.
Please note the minimum subscription is $100,000.
4. Please complete and sign the Purchaser's Questionnaire. Please answer
all questions fully and completely. Subscribers that are corporations,
partnerships, limited liability companies, trusts, or estates should also
provide the documents requested on the following page.
5. Attach a certified or bank check, payable to the order of "BPI
Industries Inc. Escrow Account" in the amount of the full subscription price for
the Units subscribed. Alternatively, you may make arrangements to wire funds to
the Escrow Agent by contacting Julie Eicher at 713-220-5172.
6. Forward the Subscription Agreement, the Purchaser's Questionnaire, and
your check (if paying by check) to: Sanders Morris Harris Inc., 600 Travis St.,
Suite 3100, Houston, Texas 77002, Attention: Julie Eicher.
If you have any questions with regard to this procedure, please contact
Julie Eicher at 713-220-5172.
NOTICE TO CORPORATIONS, PARTNERSHIPS,
LIMITED LIABILITY COMPANIES, TRUSTS AND ESTATES
1. CORPORATIONS:
Please provide a copy and the filing date of the certificate or articles of
incorporation and bylaws, as amended to date, and a corporate resolution
authorizing the subscription for the Interest and giving authority to the
person(s) signing the subscription documentation to do so.
2. PARTNERSHIPS:
Please provide a copy of the partnership agreement, as amended to date, showing
the date of formation and giving evidence of authority of the person(s) signing
the subscription documentation to do so.
3. LIMITED LIABILITY COMPANIES
Please provide a copy of the certificate of formation or articles of
organization and operating agreement or regulations, as amended to date, showing
the date of formation and giving evidence of the authority of the person(s)
signing the subscription documentation to do so.
4. TRUSTS:
Please provide a copy of the trust agreement, as amended, showing the date of
formation and giving evidence of the authority of the person(s) signing the
subscription documentation to do so.
5. ESTATES:
Please provide a copy of the Will, including and codicils thereto and current
Letters Testamentary, and any and all amendments thereto, giving evidence of the
authority of the person(s) signing the subscription documentation to do so.
NOTE: If current documents have previously been provided to, or are on file
with, Sanders Morris Harris Inc., please provide the date on which and the
offering with respect to which they were provided.
NOTE: Because the Company is a British Columbia corporation and is listed on the
TSX Venture Exchange, all subscribers who are not natural persons must complete
Form 1 - "Corporate Placee Registration Form" for filing with the TSX Venture
Exchange. Form 1 follows the Subscription Agreement.
5
PERSONAL AND CONFIDENTIAL
THE COMMON STOCK AND INVESTOR WARRANTS WHICH COMPRISE THE UNITS OF BPI
INDUSTRIES INC ("BPI" OR THE "COMPANY") CONSTITUTE SECURITIES THAT HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE APPLICABLE
SECURITIES LAWS OF ANY STATE, OR THE SECURITIES LAWS OF CANADA, BRITISH
COLUMBIA, OR ANY OTHER PROVINCE. NEITHER THE COMMON STOCK, NOR THE INVESTOR
WARRANTS NOR THE SHARES ISSUABLE ON EXERCISE OF THE INVESTORS WARRANTS (THE
"WARRANT SHARES") MAY
(A) AT ANY TIME, BE OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED IN
THE UNITED STATES WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF
1933 AND APPLICABLE STATE LAWS, OR DELIVERY TO BPI OF AN OPINION OF
LEGAL COUNSEL SATISFACTORY TO BPI THAT SUCH REGISTRATION IS NOT
REQUIRED.
(B) PURSUANT TO CANADIAN SECURITIES LEGISLATION AND THE REGULATIONS OF
THE TSX-VENTURE EXCHANGE, BE OFFERED FOR SALE, SOLD, OR OTHERWISE
TRANSFERRED TO ANYONE, ANYWHERE, UNTIL FOUR MONTHS AFTER CLOSING OF
THE OFFERING EXCEPT AS PERMITTED UNDER THE BRITISH COLUMBIA
SECURITIES ACT AND SECURITIES RULES.
RESTRICTIONS ON TRANSFER WILL BE IMPRINTED ON THE DOCUMENTS EVIDENCING THE
SECURITIES TO THE FOREGOING EFFECTS.
FOR MORE COMPLETE INFORMATION ON RESALE RESTRICTIONS, REFERENCE IS MADE TO THE
MEMORANDUM UNDER THE CAPTION "PLAN OF DISTRIBUTION - LIMITATIONS ON RESALE."
THE PURCHASE OF THE UNITS INVOLVES A HIGH DEGREE OF RISK AND SHOULD BE
CONSIDERED ONLY BY PERSONS WHO CAN BEAR THE RISK OF LOSING THEIR ENTIRE
INVESTMENT
BPI INDUSTRIES INC.
Units - Shares of Common Stock and Investor Warrants
SUBSCRIPTION AGREEMENT
BPI Industries Inc.
Attention: Keith G. Ebert
885 West Georgia Street, Suite 1500
Vancouver, British Columbia V6C 3E8
Ladies and Gentlemen:
This will confirm my agreement to become a stockholder of BPI Industries
Inc. ("BPI") and to purchase Units of BPI, each Unit consisting of two shares of
common stock, without par value (the "Common Stock"), of the Company and one
warrant to purchase one share of Common Stock (the "Investor Warrant"). I/we
hereby acknowledge receipt of the Confidential
6
Private Placement Memorandum dated December __, 2004 (the "Memorandum"), with
respect to BPI. The Memorandum describes the terms under which the Units are
offered to subscribers.
1. SUBSCRIPTION AND SALE.
1.1 Subscription. Subject to the terms and conditions of this Agreement
and the provisions of the Memorandum, I/we irrevocably subscribe for, and agree
to purchase the number of Units of BPI for the subscription price indicated on
the Signature Page. I am/we are tendering to BPI (a) a completed, signed, and
dated copy of this Agreement, (b) a completed, signed, and dated Purchaser's
Questionnaire, and (c) a certified check or bank check in the amount of the
subscription price (or I am/we are concurrently wire transferring such amount to
the Escrow Agent).
1.2 Acceptance or Rejection of Subscription. All funds tendered by
me/us will be held in a segregated subscription account pending acceptance or
rejection of this Agreement and the closing of my/our purchase of the Units.
This Agreement will either be accepted, in whole or in part, subject to the
prior sale of the Units, or rejected, by BPI as promptly as practicable. If this
Agreement is accepted only in part, I/we agree to purchase such smaller number
of Units as BPI determines to sell to me/us. If this Agreement is rejected for
any reason, including the termination of the offering of the Units by BPI, this
Agreement and all funds tendered with it will be promptly returned to me/us,
without interest or deduction of any kind, and this Agreement will be void and
of no further force or effect. Deposit and collection of the check tendered, or
receipt of funds wired, with this Agreement will not constitute acceptance of
this Agreement.
1.3 Closing. Subscriptions will be accepted at one or more closings, as
described in the Memorandum. On closing, the subscription evidenced hereby, if
not previously rejected, will, in reliance on my/our representations and
warranties, be accepted, in whole or in part, and BPI will execute a copy of
this Agreement and return it to me/us. If my/our subscription is accepted only
in part, this Agreement will be marked to indicate such fact, and BPI will
return to me/us the portion of the funds tendered by me/us representing the
unaccepted portion of my/our subscription, without interest or deduction of any
kind. The Units subscribed for will not be deemed to be issued to, or owned by,
me/us until BPI has accepted this Agreement.
2. REPRESENTATIONS, WARRANTIES, AND COVENANTS OF THE PURCHASER. I/we
represent, warrant, and covenant to BPI that:
2.1 General:
(a) If I am a natural person, I have the legal capacity and all
requisite authority to enter into, execute, and deliver the Transaction
Documents, to purchase the Units, and to perform all the obligations
required to be performed by me thereunder. If we are a corporation,
partnership, limited liability company, trust, estate, or other entity, we
are authorized to purchase the Units and otherwise to comply with our
obligations under the Transaction Documents. The person signing this
Agreement on behalf of such entity is duly authorized by such entity to do
so. The Transaction Documents are my/our valid and binding agreements and
enforceable against me/us in accordance with their terms.
(b) My/our principal residence is in the jurisdiction indicated
herein, or if we are a corporation, partnership, limited liability
company, trust, estate, or other entity, we are organized and qualified
under the law of the state indicated below and I/we have no intention of
becoming a resident or domiciliary of any jurisdiction other than the one
indicated by our address. I/we are not resident in British Columbia.
7
(c) I am/we are subscribing to purchase the Units solely for my/our
own account, for investment, and not with a view to, or for resale in
connection with, any distribution. I am/we are not acquiring the Units as
an agent or otherwise for any other person.
2.2 Information Concerning the Offering:
(a) I/we have received, carefully read, and understood the
Memorandum. I/we have not been furnished any offering literature other
than the Memorandum and the Exhibits attached thereto and have relied only
on the information contained therein and my/our own due diligence efforts
and inquiries with respect to the Offering. The Units were not offered to
me/us by any means of general solicitation or general advertising.
(b) I/we understand that the Offering is being made without
registration of the Units under the Securities Act of 1933, as amended
(the "Act"), or any state securities or blue sky laws, or the British
Columbia Securities Act and Securities Rules or any other Canadian
securities legislation, in reliance on exemptions from such registration,
and that such reliance is based in part on my representations and
warranties set forth in this Section 2 and on the information set forth in
the Purchaser's Questionnaire tendered by me/us to BPI with this
Agreement.
(c) In formulating a decision to invest in the Units, I/we (and
my/our Purchaser Representative (as defined in Rule 501(h) of Regulation D
under the Act), if any) have been given the opportunity to ask questions
of, and to obtain any information necessary to permit me to verify the
accuracy of the information set forth in the Memorandum from,
representatives of BPI and have been furnished all such information so
requested. I/we have not relied or acted on the basis of any
representations or other information purported to be given on behalf of
BPI except as set forth in the Memorandum (it being understood that no
person has been authorized by BPI to furnish any representations or other
information except as set forth in the Memorandum).
(d) I/we understand that the purchase of the Units involves various
risks and that an investment in BPI should be regarded as speculative and
involving a high degree of risk. I am/we are fully aware of the nature of
my investment in BPI and the lack of liquidity of an investment in the
Units pursuant to the Offering, because the shares, the Investor Warrants,
and the shares issuable on exercise of the Investor Warrants (the "Warrant
Shares") may not be sold, transferred, or otherwise disposed of in the
United States except pursuant to an effective registration statement under
the Act or an exemption from such registration, and that in the absence of
such registration or exemption, the Units and their constituent securities
must be held indefinitely. I/we have read the disclosures in the
Memorandum concerning limitations on resale concerning such matters and
the separate limitations on resale imposed by Canadian legislation.
(e) I/we understand that no federal or state agency, securities
commission, or similar regulatory agency has reviewed or passed upon the
Units of BPI, the merits of the offering. or made any finding or
determination concerning the fairness or advisability of an investment in
BPI.
8
2.3 Status of Subscriber, Additional Information:
(a) If we are a corporation, partnership, limited liability company,
trust, estate, or other entity, we are an "accredited investor," as that
term is defined in Rule 501(a) of Regulation D under the Act (see the
Purchaser's Questionnaire for a list of the types of accredited investors)
and meet the experience standards set forth in Section 2.3(b) below. If I
am a natural person, I am at least 21 years of age and am an "accredited
investor" and meet the experience standards set forth in Section 2.3(b)
below.
(b) I (together with my Purchaser Representative, if any), or if we
are a corporation, partnership, limited liability company, trust, estate,
or other entity, we by and through our officers, directors, trustees,
managers, partners, employees, or other advisors, (i) are experienced in
evaluating companies such as BPI, (ii) have determined that the Units are
a suitable investment for me/us, and (iii) have such knowledge, skill, and
experience in business, financial, and investment matters so that I am/we
are capable of evaluating the merits and risks of an investment in the
Units. To the extent necessary, I/we have retained, at my/our expense, and
relied upon, appropriate professional advice regarding the investment,
tax, and legal merits and consequences of this Agreement and owning the
Units, and I/we and my/our advisers or representatives have investigated
my/our investment in BPI to the extent I/we and they have deemed
advisable. I/we have the financial ability to bear the economic risks of
our entire investment for an indefinite period and no need for liquidity
with respect to our investment in BPI, and, if I a natural person, I have
adequate means for providing for my current needs and personal
contingencies.
(c) I/we agree to furnish any additional information requested to
assure compliance with the Act and state securities laws, and Canadian
legislation, in connection with the purchase and sale of the Units. If
there is any material change in the information I/we are furnishing
hereunder prior to the date this Agreement is accepted, I/we will
immediately furnish such revised or corrected information to BPI.
2.4 Restrictions on Transfer or Sale of the Common Stock, Investor
Warrants, and Warrant Shares:
(a) I /we will not sell, assign, pledge, give, transfer, or
otherwise dispose of any the Units, the Common Stock, the Investor
Warrants, the Warrant Shares, or any interest therein, or make any offer
or attempt to do any of the foregoing, except pursuant to a registration
of the resale of such securities under the Act and applicable state
securities laws, or in a transaction that is exempt from the registration
provisions of Canadian legislation, the Act, and any applicable state
securities laws. I/we understand that BPI will not be under any obligation
to register the resale of the securities under the Act or any state
securities law (except as provided in the Registration Rights Agreement
(as hereinafter defined)) or to comply with the terms of any exemption
provided under the Act or any state securities law or Canadian
legislation.
(b) I/we have not offered or sold any portion of my/our Units and
have no present intention of dividing my/our Units with others or of
reselling or otherwise disposing of any portion thereof either currently
or after the passage of a fixed or determinable period of time or upon the
occurrence or nonoccurrence of any predetermined event or circumstance.
2.5 Independent Nature of Investor's Obligations and Rights. My/our
obligations under this Agreement, the Registration Rights Agreement, and any
other documents delivered in connection herewith and therewith (collectively,
the "Transaction Documents") are several and not joint with the obligations of
any other purchaser of the Units, and I/we shall not be responsible in any way
for the
9
performance of the obligations of any other purchaser of Units. My/our decision
to purchase Units pursuant to the Transaction Documents has been made by me/us
independently of any other purchaser. Nothing contained herein or in any
Transaction Document, and no action taken by any purchaser of Units pursuant
thereto, shall be deemed to constitute such purchasers as a partnership, an
association, a joint venture, or any other kind of entity, or create a
presumption that the purchasers are in any way acting in concert or as a group
with respect to such obligations or the transactions contemplated by the
Transaction Document. I/we acknowledge that no other purchaser has acted as
agent for me/us in connection with making my/our investment hereunder and that
no other purchaser will be acting as my/our agent in connection with monitoring
my/our investment in the Units or enforcing my/our rights under the Transaction
Documents. I/we shall be entitled to independently protect and enforce my/our
rights, including without limitation the rights arising out of this Agreement or
out of the other Transaction Documents, and it shall not be necessary for any
other purchaser to be joined as an additional party in any proceeding for such
purpose.
2.6 Due Authority, Etc. If we are a corporation, partnership, limited
liability company, trust, estate, or other entity: (a) we are duly organized,
validly existing, and in good standing under the laws of the jurisdiction of our
formation and have all requisite power and authority to own our properties and
assets and to carry on our business, and at BPI's request, will furnish it with
copies of our organizational documents, (b) we have the requisite power and
authority to execute the Transaction Documents and to carry out the transactions
contemplated hereby, (c) our execution and performance of the Transaction
Documents do not and will not result in any violation of, or conflict with, any
term of our charter, bylaws, partnership agreement, operating agreement or
regulations, or indenture of trust, as the case may be, or any instrument to
which we are a party or by which we are bound or any law or regulation
applicable to us, (d) our execution and performance of the Transaction Documents
has been duly authorized by all necessary corporate, partnership, or other
action, (e) we were not specifically formed to invest in BPI, and (f) the
individual who has executed the Transaction Documents on our behalf was duly
authorized to do so by all requisite corporate, partnership, or other action
and, on request of BPI, we will furnish appropriate evidence of the authority of
such individual to act on our behalf.
2.7 Valid Obligation. This Agreement has been duly executed and delivered
me/us or on our behalf and, if and when accepted by BPI, in whole or in part,
will constitute my/our legal, valid, and binding obligations, enforceable in
accordance with their respective terms (except as limited by principles of
equity or bankruptcy, insolvency, or other similar laws affecting enforcement of
creditors' rights generally).
2.8 ERISA Matters. If we are an employee benefit plan within the meaning
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"):
(a) We and our plan fiduciaries are not affiliated with, and are
independent of BPI, and are informed of and understand BPI's investment
objectives, policies, and strategies.
(b) We represent that the purchase of the Units will not involve any
transaction that is subject to the prohibition of Section 406 of ERISA or
in connection with which a penalty could be imposed under Section 502(i)
of ERISA or a tax could be imposed pursuant to Section 4975 of the
Internal Revenue Code of 1986, as amended (the "Code").
(c) The trustee or other plan fiduciary directing the investment:
(i) in making the proposed investment, is aware of and has
taken into consideration the diversification requirements of Section
404(a)(1)(C) of ERISA; and
10
(ii) has concluded that the proposed investment in BPI is
prudent and is consistent with the other applicable fiduciary
responsibilities under ERISA.
(d) This Agreement has been duly executed on our behalf by a duly
designated Named Fiduciary (within the meaning of Section 402(a)(2) of
ERISA).
(e) If we are an individual retirement account (IRA) or employee
benefit plan not subject to Title I of ERISA, such as a governmental or
church plan, the owner of the individual retirement account or other
fiduciary directing the investment of the plan has concluded that the
proposed investment in the Units is prudent and consistent with its
fiduciary responsibilities, if any.
2.9 Fees and Commissions. No fees or commissions have been paid or are
payable by me/us in connection with this Agreement and the issuance of the Units
to me/us.
2.10 Concerning Canadian Securities Law Matters. I/We acknowledge that BPI
is relying on one or more exemptions from the requirements to provide me/us with
a prospectus and to sell the Units through a person registered to sell
securities under the British Columbia Securities Act and Securities Rules and
other Canadian securities legislation, and, as a consequence of acquiring the
Units pursuant to such exemption and the fact that no prospectus has been or is
required to be filed with respect to the Units under the British Columbia
Securities Act and other applicable Canadian securities legislation, I/we
acknowledge that:
(a) I/We am restricted from using certain of the civil remedies
available under the British Columbia Securities Act and other Canadian
securities legislation and certain protections, rights and remedies
provided by the British Columbia Securities Act and such other
legislation, including statutory rights of rescission or damages, will not
be available to me/us;
(b) I/We may not receive information that might otherwise be
required to be provided under the British Columbia Securities Act and such
other legislation, and BPI is relieved from certain obligations that would
otherwise apply under such legislation;
(c) there is no government or other insurance covering the Units;
(d) there are risks associated with the purchase of the Units;
(e) there are restrictions on my/our ability to resell the Units and
it is my/our responsibility to find out what those restrictions are and to
comply with them before selling the Units, the Common Stock, Investor
Warrants, or Warrant Shares; and
(f) no securities commission, agency, governmental authority,
regulatory body, stock exchange, or other entity has reviewed or passed
upon the merits of the Units, the Common Stock, the Investor Warrants, or
the Warrant Shares, or made any finding or determination as to the merits
for investment in, nor have any such agencies or governmental authorities
made any recommendation or endorsement with respect to, the Units;
2.11 Concerning Compliance with Regulation S. If I/we are resident in a
jurisdiction other than the United States or Canada, I/we acknowledge that BPI
is relying on the exemption from registration under the Act which is provided by
Regulation S, and represent to BPI that:
11
(a) no offers to sell the Units were made by any person to me/us
while I/we were in the United States;
(b) I/we were outside the United States at the time of execution and
delivery of this Subscription Agreement;
(c) I/we have no intention to distribute either directly or
indirectly any of the Units or their constituent securities in the United
States, except in compliance with the Act; and
(d) My/our affairs are controlled and directed from outside of the
United States, the purchase of the Units was not solicited in the United
States and no part of the transaction which is the subject of this
Subscription Agreement occurred in the United States;
3. REGISTRATION RIGHTS AGREEMENT; POWER OF ATTORNEY. I/we further agree to
be bound by the terms of and hereby execute the Registration Rights Agreement
among BPI and the purchasers of the Units (the "Registration Rights Agreement").
By signing below, I/we irrevocably constitute and appoint Sanders Morris Harris
Inc., a Texas corporation ("SMH"), as my/our true and lawful agent and
attorney-in-fact with full power of substitution and full power and authority in
my/our name, place, and stead to execute and deliver the Registration Rights
Agreement and to take such actions as may be necessary or appropriate to carry
out the terms of the Registration Rights Agreement. The power of attorney hereby
granted will be deemed coupled with an interest, will be irrevocable, and will
survive and not be affected by my/our subsequent death, incapacity, dissolution,
insolvency, or termination or any delivery by me/us of an assignment in whole or
in part of my/our Units or their constituent securities. The foregoing power of
attorney may be exercised by SMH either by signing separately or jointly as
attorney-in-fact for each or all of the subscribers for the Units or by a single
signature of SMH acting as attorney-in-fact for all of them. BPI may rely and
act upon any writing believed in good faith to be signed by SMH or any
authorized representative of SMH, and may assume that all actions of SMH and any
authorized representative of SMH have been duly authorized by me/us.
4. WAIVER, AMENDMENT, BINDING EFFECT. Neither this Agreement nor any
provisions hereof shall be modified, changed, discharged, or terminated except
by an instrument in writing, signed by the party against whom any waiver,
change, discharge, or termination is sought. The provisions of this Agreement
shall be binding upon and accrue to the benefit of the parties hereto and their
respective heirs, legal representatives, successors, and assigns.
5. ASSIGNABILITY. Neither this Agreement nor any right, remedy,
obligation, or liability arising hereunder or by reason hereof shall be
assignable by BPI or me/us without the prior written consent of the other.
6. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF TEXAS, WITHOUT REGARD TO THE CONFLICT OF LAWS
PROVISIONS THEREOF.
7. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by facsimile, each of which when so executed and delivered
shall be deemed to be an original and all of which together shall be deemed to
be one and the same agreement.
12
8. NOTICES. All notices and other communications provided for herein shall
be in writing and shall be deemed to have been duly given if delivered
personally or sent by registered or certified mail, return receipt requested,
postage prepaid:
(a) If to BPI, to it at the following address:
BPI Industries Inc.
Attention: Keith G. Ebert
885 West Georgia Street, Suite 1500
Vancouver, British Columbia V6C 3E8
(b) If to me/us at the address
set forth on the signature page hereto;
or at such other address as either party shall have specified by notice in
writing to the other.
9. SURVIVAL. All representations, warranties, and covenants contained in
this Agreement shall survive (i) the acceptance of the Subscription by BPI, (ii)
changes in the transactions, documents and instruments described in the
Memorandum, and (iii) my death or disability.
10. NOTIFICATION OF CHANGES. I/we hereby covenant and agree to notify BPI
upon the occurrence of any event prior to the closing of the purchase of the
Units pursuant to this Agreement, which would cause any representation,
warranty, or covenant by me/us contained in this Agreement to be false or
incorrect.
11. PURCHASE PAYMENT. The purchase price is being paid herewith by
delivery of either cash or check payable to "BPI Industries Inc. Escrow
Account." All payments made as provided in this Paragraph 11 shall be deposited
as soon as practicable and held in a segregated escrow account until the earlier
to occur of (a) the sale of all of the securities in this Offering or (b) the
termination of this Offering.
13
BPI INDUSTRIES INC.
SUBSCRIPTION AGREEMENT
SIGNATURE PAGE
IN WITNESS WHEREOF, the undersigned has executed this Subscription
Agreement on _____________, 2004.
NUMBER OF UNITS SUBSCRIBED FOR: _______________
AMOUNT OF SUBSCRIPTION ($2.50 PER UNIT): $_______________
NAME OF SUBSCRIBER(S):
(1) _________________________________________ Signature: ______________________
(Please print name)
Date: ______________________
Name: ______________________
Title: _____________________
Joint Tenant/Tenant in Common (if applicable):
(2) _________________________________________ Signature: ______________________
(Please print name)
Date: ______________________
ADDRESS (including mailing address, if applicable):
__________________________________________
__________________________________________
__________________________________________
TAXPAYER I.D. NUMBER OR SOCIAL SECURITY
NUMBER OF EACH SUBSCRIBER:
______________________
TYPE OF OWNERSHIP:
___ Individual
___ Tenants in common
___ Joint tenants with right of survivorship
___ Community property (check only if resident of community
property state)
___ Partnership (1)
___ Corporation (2)
___ Trust (3)
___ Limited Liability Company (4)
___ Employee Benefit Plan under ERISA
___ Other (please specify:____________________)
_____________
14
1. Please enclose a copy of the partnership agreement and a current list of
all partners.
2. Please enclose a copy of the articles or certificate of incorporation,
bylaws, and a resolution authorizing this investment and indicating the
authority of the signatory hereto.
3. Please enclose a copy of the trust instrument.
4. Please enclose a copy of the articles of formation and members' agreement
or regulations.
NOTE: All subscribers who are not natural persons must complete and send to SMH
Form 1.
15
BPI INDUSTRIES INC.
ACCEPTANCE OF SUBSCRIPTION
Agreed and accepted as to $___________________ Dated:___________________
BPI INDUSTRIES INC.
By:_______________________________
Name:_____________________________
Its:______________________________
16
FORM 1
TSX VENTURE EXCHANGE FORM 4C
CORPORATE PLACEE REGISTRATION FORM
Where subscribers to a private placement are not individuals, the following
information about the placee must be provided. This Form will remain on file
with the TSX Venture Exchange (the "Exchange"). The Issuer, trust, portfolio
manager or other entity (the "Placee") need only file it on a one time basis,
and it will be referenced for all subsequent private placements in which it
participates. If any of the information provided in this Form changes, the
Placee must notify the Exchange prior to participating in further placements
with Exchange listed companies. If as a result of the private placement, the
Placee becomes an Insider of the Issuer, Insiders of the Placee are reminded
that they must file a Personal Information Form (Form 2A) with the Exchange.
1. Placee Information:
(a) Name:_________________________________________________________________
(b) Complete Address:_____________________________________________________
(c) Jurisdiction of Issuer or Creation:___________________________________
2. (a) Is the Placee purchasing securities as a portfolio manager (Yes/No)?
(b) Is the Placee carrying on business as a portfolio manager outside of
Canada (Yes/No)?
3. If the answer to 2(b) above was "Yes", the undersigned certifies that:
(a) It is purchasing securities of an Issuer on behalf of managed
accounts for which it is making the investment decision to
purchase the securities and has full discretion to purchase or
sell securities for such accounts without requiring the
client's express consent to a transaction;
(b) it carries on the business of managing the investment
portfolios of clients through discretionary authority granted
by those clients (a "portfolio manager" business) in
[jurisdiction], and it is permitted by law to carry on a
portfolio manager business in that jurisdiction;
(c) it was not created solely or primarily for the purpose of
purchasing securities of the Issuer;
(d) the total asset value of the investment portfolios it manages
on behalf of clients is not less than $20,000,000; and
(e) it has no reasonable grounds to believe, that any of the
directors, senior officers and other insiders of the Issuer,
and the persons that carry on investor relations activities
for the Issuer has a beneficial interest in any of the managed
accounts for which it is purchasing
4. If the answer to 2(a). above was "No", please provide the names and
addresses of control persons of the Placee:
NAME CITY PROVINCE OR STATE COUNTRY
- ---- ---- ----------------- -------
- ---- ---- ----------------- -------
- ---- ---- ----------------- -------
17
The undersigned acknowledges that it is bound by the provisions of applicable
Securities Law, including provisions concerning the filing of insider reports
and reports of acquisitions (See for example, sections 87 and 111 of the
Securities Act (British Columbia)).
Dated at_________________________________ on the_________ day of________, 2004.
___________________________________
Name of Purchaser - please print
___________________________________
Authorized Signature
___________________________________
Official Capacity - please print
___________________________________
Please print name of individual whose signature appears above
THIS IS NOT A PUBLIC DOCUMENT
18
BPI INDUSTRIES INC.
PURCHASER REPRESENTATIVE QUESTIONNAIRE
BPI Industries Inc.
c/o Sanders Morris Harris
600 Travis St., Suite 3100
Houston, Texas 77002
Attention: Julie Eicher
Re: Purchase of Units of BPI Industries Inc.
Ladies and Gentlemen:
The following information is furnished to you so that you may determine
whether the undersigned client ______________________________________, (the
"Purchaser"), together with the undersigned and other purchaser representatives,
if any, has such knowledge and experience in financial and business matters that
he is capable of evaluating the merits and risks of an investment in the Units
of BPI Industries Inc. (the "Company") as required under Securities and Exchange
Commission Regulation D ("Regulation D"). I understand that you will rely upon
the information contained herein for purposes of such determination, and that
the Common Stock will not be registered under the Securities Act of 1933, as
amended (the "Securities Act"), and the applicable securities laws of any state
or foreign jurisdiction, in reliance upon the exemption from registration
provided by Section 4(2) of the Securities Act, and/or Rule 506 of Regulation D)
and the applicable securities laws of any state or foreign jurisdiction.
All information contained herein will be treated confidentially. However,
I agree that you may present this Questionnaire to such persons as you deem
appropriate if called upon to establish that the proposed offer and sale of the
Units is exempt from registration under the Securities Act and the applicable
securities laws of any state or foreign jurisdiction.
I am acting as Purchaser Representative for the Purchaser in connection
with the Purchaser's prospective investment in the Company, and, in that
connection, I furnish you with the following representations and information:
1. Name (please
print):_____________________________________________
2. Age:_________
3. Profession (or Business and Title, if applicable):
______________________________________________________________
______________________________________________________________
4. (a) Business
Address:________________________________________________
(b) Telephone Number:
______________________________________________________
19
5. Details of any training or experience in financial, business, or tax
matters that qualify me to act in the capacity of Purchaser Representative
(include current and prior employment, business or professional education,
professional licenses now held, and, if applicable, participating in evaluation
of similar investments in the past):
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
6. I have not, during the past 10 years, (i) been convicted, indicted, or
investigated in connection with any past or present criminal proceeding
(excluding traffic violations and other minor offenses); or (ii) been the
subject of any order, judgment, or decree of any court of competent jurisdiction
permanently or temporarily enjoining the undersigned from acting as an
investment adviser, underwriter, broker, or dealer in securities or as an
affiliated person, director, or employee of an investment company, bank, savings
and loan association or insurance company, or from engaging in or continuing any
conduct or practice in connection with any such activity or in connection with
the purchase or sale of any security, or been the subject of any order of a
federal or state authority barring or suspending for more than 60 days the
undersigned's right to be engaged in any such activity, or to be associated with
persons engaged in any such activity, which order has not been reversed or
suspended.
7. I am not an Affiliate (as defined in Regulation D), director, officer
or other employee of the Company, or a beneficial owner of 10 percent or more of
the equity interest in the Company, except as follows: (if none, so state)
______________________________________________________.
8. I have such knowledge and experience in financial, business, and tax
matters so as to be capable, together with the Purchaser, of evaluating the
relative merits and risks of an investment in the Company.
9. There is no material relationship (as defined in Regulation D) between
me or my affiliates and the Company or its affiliates which now exists or is
mutually understood to be contemplated or which has existed at any time during
the previous two years, nor has any compensation been received or will any
compensation be received as a result of any such relationship except as follows:
(if none, so state)______________________________________________________.
10. I agree to advise you promptly of any material changes in the
foregoing information that may occur prior to termination of the offering
relating to the Company's Units.
Very truly yours,
____________________________________
(Purchaser Representative)
____________________________________
Print Name
Dated:_______________________, 2004
20
CONFIDENTIAL
PURCHASER'S QUESTIONNAIRE
BPI Industries Inc.
c/o Sanders Morris Harris
600 Travis St., Suite 3100
Houston, Texas 77002
Attention: Julie Eicher
The information contained herein is being furnished to you in order for
you to determine whether the undersigned's subscription to purchase Units of BPI
Industries Inc. ("BPI" or the "Company") may be accepted by you pursuant to
Section 4(2) of the Securities Act of 1933 (the "Securities Act"), as amended,
and Regulation D promulgated thereunder. I understand that (i) the Company will
rely upon the information contained herein for purposes of determining the
availability of exemptions from the registration requirements of the Securities
Act, and (ii) the issuance of the Units will not be registered under the
Securities Act in reliance upon such exemptions.
All information furnished is for the sole use of the Company and will be
held in confidence by you, except that this Questionnaire may be furnished to
such parties as the Company's counsel (or counsel for Sanders Morris Harris Inc.
(the "Placement Agent")) deems necessary or desirable to establish compliance
with federal or state securities laws.
In accordance with the foregoing, the undersigned makes the following
representations and warranties:
1. (This item is presented in alternative form. Please initial, in the
space provided, the alternative you select.)
___________________ ALTERNATIVE ONE: I have such knowledge and experience in
financial and business matters so as to be capable of
evaluating the relative merits and risks of an
investment in the Units. I am not utilizing a
representative(s) ("Purchaser Representative") in
connection with evaluating such merits and risks. I
offer as evidence of my knowledge and experience in
these matters the information requested below by this
Purchaser's Questionnaire.
___________________ ALTERNATIVE TWO*: I will use a Purchaser Representative
acceptable to you in connection with evaluating a
potential investment in the Units. I acknowledge that
the following person(s) will be acting as Purchaser
Representative(s) in connection with evaluating the
merits and risks of an investment in the Units.
__________________________________________
__________________________________________
Purchaser Representatives
The above-named Purchaser Representative(s) has (have) furnished me a completed
Purchaser Representative Questionnaire, a copy of which is delivered to you
herewith. I and the above named Purchaser Representative(s) together have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of an investment in the Units.
21
(*IF YOU HAVE INITIALED ALTERNATIVE TWO, A COMPLETED AND SIGNED PURCHASER
REPRESENTATIVE QUESTIONNAIRE MUST ACCOMPANY THIS PURCHASER'S
QUESTIONNAIRE. A PURCHASER REPRESENTATIVE QUESTIONNAIRE IS AVAILABLE FROM
THE PLACEMENT AGENT UPON REQUEST.)
2. Except as indicated below, any purchase of the Units will be solely for
the account of the undersigned, and not for the account of any other
person or with a view to any resale, division or distribution thereof.
NO EXCEPTIONS (Cross out if exceptions and give details. Attached
additional pages if necessary)
No Exceptions
_______________________________________________________________________________
PART ONE: INFORMATION REQUIRED OF EACH PROSPECTIVE PURCHASER:
1. Name: ________________________________________________________
(Investors exact name, as it should appear in the
records of BPI.)
Address: ________________________________________________________
________________________________________________________
________________________________________________________
Telephone number: __________________________ FAX: ________________________
Social Security or Taxpayer ID number: ________________________
2. Name and title of person completing this Questionnaire:
__________________________________________________________________________
3. Describe any pre-existing business or personal relationship between
yourself and any director or officer of BPI or the Placement Agent.
__________________________________________________________________________
22
PART TWO: TO BE COMPLETED ONLY BY PROSPECTIVE PURCHASERS WHO ARE NATURAL PERSONS
4. Check one of the following representations (a) or (b), IF APPLICABLE:
_________________ (a) My individual net worth, or joint net worth
with my spouse, exceeds $1,000,000
_________________ (b) My individual income (without my spouse) was in
excess of $200,000 in each of the two most recent
years or joint income with my spouse was in excess
of $300,000 in each of those years, and I
reasonably expect an income reaching the same
income level in the current year. For purposes of
this Investor Questionnaire, individual income
means adjusted gross income, as reported for
federal income tax purposes, less any income
attributable to a spouse or to property owned by a
spouse, increased by the following amounts (but
not including any amounts attributable to a spouse
or to property owned by a spouse): (i) the amount
of any tax exempt interest income received, (ii)
the amount of losses claimed as a limited partner
in a limited partnership, (iii) any deduction
claimed for depletion, (iv) deductions for alimony
paid, (v) amounts contributed to an IRA or Keogh
retirement plan, and (vi) any amount by which
income from long-term capital gains has been
reduced in arriving at adjusted gross income
pursuant to the provisions of Section 1202 of the
Internal Revenue Code.
_________________ (c) A director or executive officer of BPI.
5. Please describe your educational background:
__________________________________________________________________________
__________________________________________________________________________
6. Professional licenses or registrations, including bar admissions,
accounting certification, real estate brokerage licenses, and SEC or state
broker-dealer registrations, if any:
__________________________________________________________________________
__________________________________________________________________________
7. Prior employment, positions or occupations during the past five years (and
the inclusive dates of each) are as follows:
Employment or Occupation: _______________________________________________
Nature of Responsibility: _______________________________________________
From - To: _______________________________________________
8. I have previously purchased securities that were sold in reliance upon the
private offering exemption from registration under the Securities Act of
1933, as amended:
23
Yes _________ No _________
9. Please specify your investment objectives:
_________ Income Other, please state: ______________________
_________ Appreciation ______________________
10. Describe what type of prior investments you have participated in and the
amounts involved:
Nature of Investment: ________________________________________________
Amount Invested: ________________________________________________
24
PART THREE: TO BE COMPLETED BY ALL PROSPECTIVE PURCHASERS WHO ARE NOT NATURAL
PERSONS.
1. Name of entity: ________________________________________________
2. Type of organization (partnership, corporation, etc.): ___________________
3. Date and place of organization: __________________________________________
4. The undersigned is:
(a) (__) a bank as defined in Section 3(a)(2) of the Securities Act
of 1933 (" 1933 Act"), or any savings and loan association or other
institution as defined in Section 3(a)(5)(A) of the 1933 Act;
(__) a broker or dealer registered pursuant to Section 15 of the
Securities Exchange Act of 1934;
(__) an insurance company as defined in Section 2(13) of the 1933
Act;
(__) an investment company registered under the Investment Company
Act of 1940 or a business development company as defined in Section
2(a)(48) of that Act; or
(__) a Small Business Investment Company licensed by the U. S. Small
Business Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958;
(b) (__) an employee benefit plan within the meaning of the Employee
Retirement Income Security Act of 1974 if the investment decision is
made by a plan fiduciary, as defined in Section 3(21) of such Act,
which is a bank, an insurance company, a savings and loan
association, or a registered investment advisor;
(__) an employee benefit plan with total assets in excess of
$5,000,000; or
(__) an employee benefit plan that is a self-directed plan (such as
a self-directed individual retirement account (IRA), Keough or SEP
plan) with investment decisions made solely by persons that are
accredited investors;
(c) (__) a private business development company as defined in
Section 202(a)(22) of the Investment Advisers Act of 1940;
(d) (__) a corporation, partnership, limited liability company,
Massachusetts or similar business trust, or an organization
described in Section 501(c)(3) of the Internal Revenue Code, not
formed for the specific purpose of acquiring the securities offered
with total assets in excess of $5,000,000;
(e) (__) a trust with total assets in excess of $5,000,000, not formed
for the specific purpose of acquiring the securities offered, whose
purchase is directed by a sophisticated person as described in the
rules and regulations of the 1933 Act;
(f) (__) an entity (not including any trust) in which all of the
equity owners are Accredited Investors as defined in Rule 501(a) of
Regulation D. NOTE: EACH EQUITY OWNER MUST SUBMIT AN INDIVIDUAL
PURCHASER QUESTIONNAIRE.
25
(1) List all equity owners of the entity:
________________________________________________
________________________________________________
(2) Type of entity: ________________________________
(3) Attach a copy of the entity's: Articles of
Incorporation and Directors' Resolution authorizing the
investment; or Partnership or Trust Agreement, if any.
26
REPRESENTATIONS AND WARRANTIES OF EACH PROSPECTIVE PURCHASER:
The undersigned understands that the Company will be relying on the
accuracy and completeness of the responses to the foregoing questions and
represents and warrants to the Company as follows:
(i) The answers to the above questions are complete and correct and
may be relied upon by the Company in determining whether the
undersigned meets the investor suitability requirements set forth in
the Memorandum, and whether the offering in which the undersigned
proposes to participate is exempt from registration under the 1933
Act and the rules promulgated thereunder, and Canadian securities
legislation;
(ii) The undersigned will notify the Company immediately of any
material change in any statement made herein occurring prior to the
completion of the Offering; and
(iii) The undersigned has adequate means of providing for the
undersigned's current needs and personal contingencies, has no need
for liquidity in its investment in the Units, and is able to bear
the economic risk of an investment in the Units of the size
contemplated. In making this statement the undersigned at the
present time could afford a complete loss of such investment.
IN WITNESS WHEREOF, I have executed this Purchaser Questionnaire this ___
day of ________________ 2004.
INDIVIDUALS:
ENTITIES:
_________________________________________ ________________________________
Print Name(s) Print Name of Subscriber
_________________________________________ ________________________________
Signature Authorized Signature
_________________________________________ ________________________________
Signature (if Joint Tenants or Tenants Print Name of Signatory and
in Common) capacity in which signed)
27