NONE OF
THE SECURITIES TO WHICH THIS PRIVATE PLACEMENT SUBSCRIPTION
AGREEMENT (THE “AGREEMENT”) RELATES HAVE BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (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
THAT TERM IS DEFINED IN REGULATION S UNDER THE 1933 ACT) 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.
UNLESS PERMITTED UNDER
SECURITIES LEGISLATION, THE HOLDER OF THE SECURITIES SHALL NOT
TRADE THE SECURITIES BEFORE THE DATE THAT IS FOUR MONTHS AND A DAY
FROM DATE OF ISSUANCE.
WITHOUT PRIOR WRITTEN APPROVAL
OF THE TSX VENTURE EXCHANGE AND COMPLIANCE WITH ALL APPLICABLE
SECURITIES LEGISLATION, THE SECURITIES REPRESENTED BY THIS
CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE
TRADED ON OR THROUGH THE FACILITIES OF THE TSX VENTURE EXCHANGE OR
OTHERWISE IN CANADA OR TO OR FOR THE BENEFIT OF A CANADIAN RESIDENT
UNTIL THE DATE THAT IS FOUR MONTHS AND A DAY FROM DATE OF
ISSUANCE.
DEBT CONVERSION AGREEMENT
(U.S. Subscriber)
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TO:
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CounterPath
Corporation (the
“Company”)
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Suite 300, One
Bentall Centre, 505 Burrard Street
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Vancouver,
British Columbia, Canada V7X 1M3
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WHEREAS:
A.
The Trustees of Columbia University in the City of New York
(“Columbia” or the “Subscriber”) and
Firsthand Technologies Inc. (“FirstHand”) are parties
to: (i) an Amended Research Agreement dated as of June 30, 2003,
together with all amendments to such agreement to date, and (ii) an
Amended Omnibus Agreement dated as of June 30, 2003, together with
all amendments to such agreement to date (collectively, as amended,
the “Columbia Agreements”);
B.
On February 1, 2008, the Company acquired all of the issued
and outstanding shares of FirstHand pursuant a Share Exchange
Agreement (the “Exchange Agreement”) dated January 28,
2008 between the Company and certain shareholders of
FirstHand;
C.
In connection with the Exchange Agreement, the Company, FirstHand
and Columbia executed a joint Agreement and Acknowledgement whereby
it was agreed that, among other things, the closing of the Exchange
Agreement would not terminate the Columbia Agreements and that
FirstHand and the Company would continue to be bound by the terms
of the Columbia Agreements;
D.
In connection with the Columbia Agreements, FirstHand, the Company
and Columbia have agreed that the total amount of debt to be
settled by way of equity issuance is US$393,416.61 (the
“Outstanding Debt”), which includes all of the
outstanding and unpaid patent fees of US$193,416.61 owing up until
March 19, 2009, net of US$100,000 credited to FirstHand in
consideration of certain technologies reverted back to Columbia, in
accordance with the Third Amendment to the Omnibus Agreement (the
“Omnibus Amendment”), which is being entered into by
the parties and FirstHand simultaneously with the execution and
delivery of this Agreement, and all
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of the agreed upon outstanding
and unpaid research fees of US$200,000 due under the Columbia
Agreements up until June 30, 2009 (excluding an additional
US$246,519 of such fees, the due date for which has been extended
to June 30, 2010) representing all of the research fees remaining
under the Amended Research Agreement together with all amendments;
and
E.
Columbia has agreed to convert the Outstanding Debt into common
shares of the Company pursuant to the terms and conditions of this
Agreement.
NOW THEREFORE
this Agreement witnesses that for
and in consideration of the mutual covenants, agreements,
representations and warranties in this Agreement and other good and
valuable consideration, the receipt and sufficiency of which is
acknowledged by each party, the parties agree as
follows:
1.
Acknowledgment of Debt
1.1 The
Company and the Subscriber acknowledge and agree that, as of the
date of this Agreement, FirstHand and the Company are, jointly and
severally, indebted to the Subscriber in the amount of the
Outstanding Debt comprised of the following:
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(a)
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US$193,416.61 for patent fees up
until March 19, 2009, net of US$100,000 credited to FirstHand, as
described above; and
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(b)
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US$200,000 of the outstanding
US$446,591 in research fees owing up until June 30,
2009.
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2.
Subscription and Release
2.1 On
the basis of the representations and warranties and subject to the
terms and conditions set forth herein, the Subscriber hereby
irrevocably agrees, subject to Sections 4 and 10, on the Closing
Date (as defined in Section 4.1), to convert the entire amount of
the Outstanding Debt into the number of common shares of the
Company (rounding any fraction of a share to the nearest whole
share), determined by dividing the entire amount of the Outstanding
Debt (calculated in Canadian dollars by multiplying the US dollar
amount of the Outstanding Debt by the prior day exchange rate in
Canadian dollars of one US dollar, as listed in the New York
edition of the Wall Street Journal on the TSX-V trading day
immediately preceding the date that the Company receives acceptance
from the TSX-V of the offering and the transactions contemplated
hereby (the “Acceptance Date”) by a conversion price
(provided that such conversion price is not less than the
Discounted Market Price as such term is defined in the policies of
the TSX-V) per common share of the Company equal to the average
daily actual sales price of the Common Stock on the TSX-V on each
on the ten (10) trading days immediately preceding the Acceptance
Date, or, if no such sales have occurred on any of such dates,
utilizing for each such date on which no sales have occurred, the
average of the closing bid and asked prices on the TSX-V on such
date, and (such subscription and agreement to convert being the
“Subscription” and such number of common shares being
the “Shares”). The Company shall not effect any stock
split, reverse stock split, stock dividend or any other capital
change to its common stock on or prior to, or which has a record
date on or prior to, the Closing Date. The conversion of the
Outstanding Debt into the Shares shall occur automatically upon the
Closing Date , without further action on the part of either
party hereto.
2.2 On
the basis of the representations and warranties and subject to the
terms and conditions set forth herein, the Company hereby
irrevocably agrees to issue the Shares, as duly issued and
authorized, fully paid and non-assessable shares, and deliver a
duly and validly issued certificate representing the Shares, to the
Subscriber on the Closing Date, in exchange for the conversion of
the Outstanding Debt. The Subscriber hereby agrees that upon
delivery of the Shares by the Company in accordance with the
provisions of this Agreement and applicable law, all amounts
outstanding under the Outstanding Debt will be fully satisfied and
extinguished, and the Subscriber will remise, release and forever
discharge FirstHand and the Company and their respective directors,
officers, employees, successors, solicitors, agents and assigns
from any and all obligations to pay the Outstanding Debt, other
than any such obligations arising out of or in connection with the
issuance, sale and delivery of the Shares or otherwise under this
Agreement and/or the Omnibus Amendment.
- 3 -
3.
Documents Required from
Subscriber
3.1
The Subscriber has completed, signed and returned to the Company
the following documents:
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(a)
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two (2) executed copies of this
Agreement;
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(b)
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an Accredited Investor
Questionnaire in the form attached as Exhibit A (the
“Questionnaire”); and
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(c)
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if the Subscriber does not have a
current Corporate Placee Registration Form on file with the TSX
Venture Exchange (the “TSX-V”), the Corporate Placee
Registration Form attached as Exhibit B hereto.
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3.2 The
Subscriber shall complete, sign and return to the Company, within
thirty (30) days following request by the Company, any additional
documents, questionnaires, notices and undertakings as may be
required to be furnished by Columbia to comply with applicable
securities or stock exchange laws and regulations in connection
with the issuance of the Shares.
4.
Conditions and Closing
4.1 Closing
of the offering of shares shall occur on the fifth business day
following the Acceptance Date (the “Closing Date”). The
Company shall, at its own cost and expense, use all reasonable
efforts to obtain the acceptance by the TSX-V of this Agreement and
the transactions contemplated hereby as soon as may be practicable
following the execution and delivery of this Agreement. Not later
than the first business day following the Acceptance Date, the
Company shall furnish to Columbia by facsimile (i) a copy of all
documentation evidencing such acceptance by the TSX-V; (ii) notice
of the Closing Date; and (iii) a reasonably detailed calculation of
the number of Shares, including specification of each of the daily
price components utilized in such calculation, the average thereof
and the exchange rate involved. Notwithstanding the foregoing, if
(A) the Company has breached any of its representations,
warranties, covenants or agreements contained herein on or prior to
the Closing Date; or (B) the Acceptance Date has not occurred on or
prior to July 31, 2009, then Columbia may, by notice to the Company
on or prior to the proposed Closing Date then Columbia may, at any
time, by notice to the Company on or prior to the proposed Closing
Date (in the case of clause (A) above) or by notice to the Company
on or following July 8, 2009 (in the case of clause (B) above)
rescind this Agreement and in such event, the Outstanding Debt
continue to be outstanding.
5.
Acknowledgements and Agreements of
Subscriber
5.1 The
Subscriber acknowledges and agrees that:
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(a)
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none of the Shares have been or,
except as contemplated herein, 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, as that term is defined in Regulation
S under the 1933 Act (“Regulation S”), 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;
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(b)
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except as contemplated herein,
the Subscriber acknowledges that the Company has not undertaken,
and will have no obligation, to register any of the Shares under
the 1933 Act;
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(c)
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by completing the Questionnaire,
the Subscriber is representing and warranting that the Subscriber
is an “Accredited Investor”, as defined in Regulation D
of the 1933 Act;
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(d)
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except as contemplated by or
provided in this Agreement, including, without limitation,
paragraphs (e) and (f) below, and the other agreements, instruments
and documents delivered by
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- 4 -
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or on behalf of the Company in
connection with the transactions contemplated by this Agreement
(the “Transaction Documents”), the decision to execute
this Agreement and acquire the Shares agreed to be acquired
hereunder has not been based upon any oral or written
representation as to fact or otherwise made by or on behalf of the
Company and such decision is based entirely upon a review of any
public information which has been filed by the Company with the
Securities and Exchange Commission (“SEC”) in
compliance, or intended compliance, with applicable securities
legislation;
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(e)
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the Subscriber and the
Subscriber’s advisor(s) have had a reasonable opportunity to
ask questions of and receive answers from the Company in connection
with the distribution of the Shares hereunder, and to obtain
additional information, to the extent possessed or obtainable
without unreasonable effort or expense, necessary to verify the
accuracy of the information about the Company;
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(f)
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the books and records of the
Company 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);
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(g)
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the Company is entitled to rely
on the representations and warranties of the Subscriber contained
in this Agreement and the Questionnaire;
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(h)
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the Company 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;
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(i)
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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;
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(j)
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in addition to resale
restrictions imposed under U.S. securities laws, there are
additional restrictions on the Subscriber’s ability to resell
in Canada any of the Shares under the Securities Act (British
Columbia) (the “B.C. Act”) and National Instrument
45-102 adopted by the British Columbia Securities
Commission;
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(k)
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the Subscriber consents to the
placement of a legend on any certificate or other document
evidencing any of the Shares to the effect that such securities
have not been registered under the 1933 Act or any state securities
or “blue sky” laws and setting forth or referring to
the restrictions on transferability and sale thereof contained in
this Agreement such legend to be substantially as
follows:
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NONE OF THE SECURITIES TO WHICH
THIS 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.
- 5 -
UNLESS PERMITTED UNDER SECURITIES
LEGISLATION, THE HOLDER OF THE SECURITIES SHALL NOT TRADE THE
SECURITIES BEFORE THE DATE THAT IS FOUR MONTHS AND A DAY FROM DATE
OF ISSUANCE.
WITHOUT PRIOR WRITTEN APPROVAL OF
THE TSX VENTURE EXCHANGE AND COMPLIANCE WITH ALL APPLICABLE
SECURITIES LEGISLATION, THE SECURITIES REPRESENTED BY THIS
CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE
TRADED ON OR THROUGH THE FACILITIES OF THE TSX VENTURE EXCHANGE OR
OTHERWISE IN CANADA OR TO OR FOR THE BENEFIT OF A CANADIAN RESIDENT
UNTIL THE DATE THAT IS FOUR MONTHS AND A DAY FROM DATE OF
ISSUANCE.”
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(l)
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the Company has advised the
Subscriber that the Company 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 ;
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(m)
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the statutory and regulatory
basis for the exemption claimed for the offer and sale of the
Shares, although in technical compliance with Regulation S, would
not be available if the offering is part of a plan or scheme to
evade the registration provisions of the 1933 Act;
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(n)
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neither the SEC nor any other
securities commission or similar regulatory authority has reviewed
or passed on the merits of any of the Shares;
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(o)
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no documents in connection with
the sale of the Shares hereunder have been reviewed by the SEC or
any state securities administrators;
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(p)
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there is no government or other
insurance covering any of the Shares; and
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(q)
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this Agreement is not enforceable
by the Subscriber unless it has been accepted by the
Company.
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6.
Representations, Warranties and Covenants of the
Subscriber
6.1
The Subscriber hereby represents and warrants to and covenants with
the Company (which representations, warranties and covenants shall
survive the Closing) that:
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(a)
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it has the legal capacity and
competence to enter into and execute this 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 have been obtained to authorize execution and
performance of this Agreement on behalf of the
Subscriber;
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(b)
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the entering into of this
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, if the Subscriber is a corporate entity, 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; provided that no representation
or warranty is made in this paragraph (b) concerning the Columbia
Agreements;
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(c)
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the Subscriber has duly executed
and delivered this Agreement and it constitutes a valid and binding
agreement of the Subscriber enforceable against the
Subscriber;
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- 6 -
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(d)
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the Subscriber has received and
carefully read this Agreement;
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(e)
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the Subscriber is acquiring the
Shares as principal for investment only and not with a view to
resale or distribution;
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(f)
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the Subscriber is aware that an
investment in the Company is speculative and involves certain
risks, including the possible loss of the entire
investment;
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(g)
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the Subscriber has made an
independent examination and investigation of an investment in the
Shares and the Company and has depended on the advice of its legal
and financial advisors;
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(h)
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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;
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(i)
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the Subscriber understands and
agrees that the Company and others will rely upon the truth and
accuracy of the acknowledgements, representations and agreements
contained in this Agreement and the Questionnaire and agrees that
if any of such acknowledgements, representations and agreements are
no longer accurate or have been breached prior to the
Closing , the Subscriber shall promptly notify the
Company;
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(j)
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the Subscriber (i) is able to
fend for 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 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;
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(k)
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the Subscriber understands and
agrees that none of the Shares have been 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;
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(l)
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by completing the Questionnaire,
the Subscriber is representing and warranting that it is an
“Accredited Investor” as that term is defined in
Regulation D of the 1933 Act;
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(m)
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all information contained in the
Questionnaire is complete and accurate and may be relied upon by
the Company, and the Subscriber will notify the Company immediately
of any material change in any such information occurring prior to
the closing of the purchase of the Shares;
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(n)
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the Subscriber is not an
underwriter of, or dealer in, the common shares of the Company, nor
is the Subscriber participating, pursuant to a contractual
agreement or otherwise, in the distribution of the
Shares;
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(o)
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the Subscriber understands and
agrees that the Company 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;
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(p)
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the Subscriber 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;
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(q)
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except as otherwise contemplated
by this Agreement or the other Transaction Documents, no person has
made to the Subscriber any written or oral
representations:
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(i)
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that any person will resell or
repurchase any of the Shares;
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(ii)
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that any person will refund the
purchase price of any of the Shares;
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(iii)
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as to the future price or value
of any of the Shares; or
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(iv)
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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 Company on any stock exchange or
automated dealer quotation system; and
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(r)
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the Subscriber has provided to
the Company, along with an executed copy of this
Agreement:
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(i)
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fully completed and executed
Questionnaire in the form attached hereto as Exhibits A,
and
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(ii)
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such other supporting
documentation that the Company or its legal counsel may request to
establish the Subscriber’s qualification as a qualified
investor.
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6.2 In
this Agreement, the term “U.S. Person” shall have the
meaning ascribed thereto in Regulation S promulgated under the 1933
Act and for the purpose of the Agreement includes any person in the
United States.
7.
Present Ownership of Securities
7.1
The Subscriber either [check appropriate box]
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[ ]
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does not own directly or
indirectly, or exercise control or direction over, any common
shares of the Company (“Common Shares”) or securities
convertible into Common Shares; or
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[ ]
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owns directly or indirectly, or
exercises control or direction over, ____________ Common Shares and
convertible securities entitling the holder thereof to acquire an
additional ____________ Common Shares.
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8.
Insider Status
8.1 The
Subscriber either [check appropriate box]
:
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[ ]
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is an “Insider” of
the Company as defined in the Securities Act (British
Columbia), namely: “Insider” means:
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(i)
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a director or senior officer of
the Company;
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(ii)
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a director or senior officer of a
person that is itself an insider or subsidiary of the
Company;
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(iii)
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a person that has:
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A.
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direct or indirect beneficial
ownership of;
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B.
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control or direction over;
or
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- 8 -
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C.
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a combination of direct or
indirect beneficial ownership of and of control or direction
over
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securities of the Company
carrying more than 10% of the voting rights attached to all the
Company’s outstanding voting securities, excluding, for the
purpose of the calculation of the percentage held, any securities
held by the person as underwriter in the course of a distribution;
or
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(iv)
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the Company itself, if it has
purchased, redeemed or otherwise acquired any securities of its own
issue, for so long as it continues to hold those securities;
or
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[x]
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is not an
Insider of the Company.
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9.
Member of “Pro
Group”
9.1
The Subscriber either [check appropriate box]
:
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[ ]
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is a Member of the “Pro
Group” as defined in the Rules of the TSX-V, namely:
“Pro Group” means:
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(i)
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Subject to subparagraphs (ii),
(iii) and (iv) below, “Pro Group” shall include, either
individually or as a group:
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A.
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the member (i.e. a member of the
TSX-V under the TSX-V requirements);
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B.
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employees of the
member;
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C.
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partners, officers and directors
of the member;
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D.
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affiliates of the member;
and
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E.
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associates of any parties
referred to in subparagraphs (i) through (iv).
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(ii)
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The TSX-V may, in its discretion,
include a person or party in the Pro Group for the purposes of a
particular calculation where the TSX-V determines that the person
is not acting at arm’s length of the member.
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(iii)
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The TSX-V may, in its discretion,
exclude a person from the Pro Group for the purposes of a
particular calculation where the TSX-V determines that the person
is acting at arm’s length of the member.
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(iv)
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The member may deem a person who
would otherwise be included in the Pro Group pursuant to
subparagraph (i) to be excluded from the Pro Group where the member
determines that:
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A.
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the person is an affiliate or
associate of the member acting at arm’s length of the
member;
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B.
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the associate or affiliate has a
separate corporate and reporting structure;
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C.
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there are sufficient controls on
information flowing between the member and the associate or
affiliate; and
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D.
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the member maintains a list of
such excluded persons; or
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[x]
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is not a member
of the Pro Group.
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10.
Conditional upon TSX-V
Acceptance.
10.1
Without limitation, this Subscription and the transactions
contemplated hereby are subject conditional upon and subject to
Section 4.1, including the Company receiving acceptance from the
TSX-V of the offering and the transactions contemplated
hereby.
11.
Representations and Warranties will be Relied
Upon by the Company
11.1
The Subscriber acknowledges that the representations and warranties
contained herein are made by it with the intention that such
representations and warranties may be relied upon by the Company
and its legal counsel in determining the Subscriber’s
eligibility to acquire the Shares under applicable securities
legislation. The Subscriber further agrees that by accepting
delivery of the certificates representing the Shares on the Closing
Date, it will be representing and warranting that the
representations and warranties contained herein are true and
correct as at the Closing Date with the same force and effect as if
they had been made by the Subscriber on the Closing Date and that
they will survive the acquisition by the Subscriber of the Shares
and notwithstanding any subsequent disposition by the Subscriber of
such securities.
12.
Piggyback Registration Rights; Rule 144
Compliance
12.1
If the Company determines to proceed with the preparation and
filing with the SEC of a registration statement (the
“Registration Statement”) relating to an offering for
its own account or the account of others under the 1933 Act of any
of its common shares, other than on Form S-4 or Form S-8 (each as
promulgated under the 1933 Act) or its then equivalents relating to
equity securities issuable in connection with stock option or other
employee benefit plans, the Company shall send to the Subscriber
written notice of such determination and, if within thirty (30)
days after receipt of such notice, the Subscriber shall so request
in writing, the Company will cause the registration under the 1933
Act of the Shares and (the “Registrable Securities”),
provided that if at any time after giving written notice of its
intention to register any of its common shares and prior to the
effective date o
