Exhibit 4.1
SUBSCRIPTION AGREEMENT
To:
UNITY WIRELESS
CORPORATION (the “Corporation” or
the “Issuer”)
7438 Fraser Park Drive, Burnaby, B.C., Canada, V5J 5B
The undersigned (the
“Subscriber”) hereby acknowledges that the Corporation
is proceeding with a private placement of up to 33,333,333 units
(the “Units”) at a price of $0.09 per Unit, each Unit
consisting of one (1) share (“Share”) of Common Stock
of the Corporation and one-half (1/2) of a Share Purchase Warrant
(“Warrant”); each full Share Purchase Warrant will
entitle the holder to purchase one (1) additional Share at a price
of $0.10 per Share if exercised on or before the date that is five
years after the date of the issuance of the Warrant. The
Warrants shall have anti-dilution price protection on terms
identical with such protection included in previous warrants issued
by the Corporation. The Subscriber hereby tenders to the
Corporation this subscription offer which, upon acceptance by the
Corporation, will constitute an agreement of the Subscriber to
subscribe for, take up, purchase and pay for and, on the part of
the Corporation, to issue and sell to the Subscriber the number of
Units set out below on the terms and subject to the conditions set
out in this Agreement.
|
Number of Units:
|
__________________
|
|
Total Purchase
Price at $0.09 per Unit:
|
$__________________
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DATED this ________ day
of __________________, 20___.
______________________________________
___________________________________
(Name of Subscriber -
please print)
(Subscriber’s
Address)
by:
___________________________________
___________________________________
(Official Capacity or
Title - please print)
___________________________________
(Telephone
Number)
______________________________________
___________________________________
Authorized
Signature
(Facsimile
Number)
______________________________________
___________________________________
(Please print name of
individual whose signature
(E-mail
Address)
appears above if
different than the name of the
Subscriber printed
above).
If Registration or
delivery instructions are different from the address listed above,
please advise the Issuer at the time of subscription.
This subscription is
accepted by the Corporation this ______ day of ___________________,
20__.
UNITY WIRELESS
CORPORATION
Per:
Authorized
Signatory
1.
INTERPRETATION
1.1.
In this Agreement,
unless the context otherwise requires:
“ 1933 Act
” means the United States Securities Act of 1933 ,
as amended;
“ Accredited
Investor ” has the meaning set forth in Appendix I
hereto;
“ Closing
” means the day the Subscriber’s Shares are issued to
the Subscriber;
“
Commission ” means the United States Securities and
Exchange Commission;
“
Exemption ” means the exemptions from the prospectus
requirements of the 1933 Act;
“ Parties
” or “ Party ” means the Subscriber, the
Corporation or both, as the context requires;
“ Private
Placement ” means the offering of the Units by the
Issuer;
“ Regulation
S ” means Regulation S promulgated under the 1933
Act;
“ Regulatory
Authorities ” means the Commission and the securities
regulatory authorities in an international jurisdiction;
“
Shares ” means shares in the Common Stock of the
Corporation;
“
Subscriber ” has the meaning ascribed to it on the
cover page;
“
Subscriber’s Units ” means those Units which the
Subscriber has agreed to purchase under this Agreement;
“ Subscription
Proceeds ” means the total gross proceeds from the sale
of Units under the Private Placement;
“ United
States ” means the United States of America, its
territories and possessions, any state of the United States and the
District of Columbia;
“ U.S.
Person ” has the meaning ascribed to it in Regulation S.
Without limiting the foregoing, but for greater clarity in this
Agreement, a U.S. Person includes, subject to the exclusions set
forth in Regulation S, (i) any natural person resident in the
United States, (ii) any partnership or corporation organized or
incorporated under the laws of the United States, (iii) any estate
or trust of which any executor, administrator or trustee is a U.S.
Person, (iv) any discretionary account or similar account (other
than an estate or trust) held by a dealer or other fiduciary
organized, incorporated, or (if an individual) resident in the
United States, and (v) any partnership or corporation organized or
incorporated under the laws of any non-U.S. jurisdiction which is
formed by a U.S. Person principally for the purpose of investing in
securities not registered under the 1933 Act, unless it is
organized or incorporated, and owned, by Accredited Investors who
are not natural persons, estates or trusts.
0.1
Time is of the essence
of this Agreement and will be calculated in accordance with the
provisions of the Interpretation Act (British
Columbia).
0.2
This Agreement is to be
read with all changes in gender or number as required by the
context.
0.3
The headings in this
Agreement are for convenience of reference only and do not affect
the interpretation of this Agreement.
0.4
Unless otherwise
indicated, all dollar amounts referred to in this Agreement are in
lawful currency of the United States of America.
0.5
This Agreement is
governed by, subject to and interpreted in accordance with the laws
prevailing in the Province of British Columbia and the federal laws
of Canada applicable therein, and the courts of the Province of
British Columbia will have the exclusive jurisdiction over any
dispute arising in connection with this Agreement.
1.
REPRESENTATIONS,
WARRANTIES, COVENANTS AND ACKNOWLEDGEMENTS OF THE
SUBSCRIBER
2.1
The Subscriber
acknowledges, represents, warrants and covenants to and with the
Corporation that, as at the date given above and at the
Closing:
(a)
no prospectus has been
filed by the Corporation with any of the Commissions in connection
with the issuance of the Units, such issuance is exempted from the
prospectus requirements of the 1933 Act and that:
(i)
the Subscriber is
restricted from using most of the civil remedies available under
the 1933 Act;
(ii)
the Subscriber may not
receive information that would otherwise be required to be provided
to it under the 1933 Act; and
(iii)
the Corporation is
relieved from certain obligations that would otherwise apply under
the 193 Act;
(a)
the Subscriber certifies
that it is resident in the jurisdiction(s) set out on the first
page of this Agreement;
(b)
the Subscriber is
purchasing the Subscriber’s Units as principal for its own
account and not for the benefit of any other person, and is
purchasing the Subscriber’s Units for investment only and not
with a view to the resale or distribution of all or any of the
Subscriber’s Units;
(c)
the Subscriber
acknowledges that:
(i)
no securities commission
or similar regulatory authority has reviewed or passed on the
merits of the Units;
(ii)
there is no government
or other insurance covering the Units;
(iii)
there are risks
associated with the purchase of the Units;
(iv)
there are restrictions
on the Subscriber’s ability to resell the Units and it is the
responsibility of the Subscriber to find out what those
restrictions are and to comply with them before selling the Units;
and
(v)
the Corporation has
advised the Subscriber that the Corporation is relying on an
exemption to provide the Subscriber with a prospectus and to sell
securities through a person registered to sell securities under the
1933 Act and, as a consequence of acquiring Units pursuant to an
Exemption, certain protections, rights and remedies provided by the
1933 Act, including statutory rights of rescission or damages, will
not be available to the Subscriber;
(a)
the Subscriber is an
Accredited Investor, by virtue of the fact that the Subscriber
falls within one or more of the sub-paragraphs of the definition of
Accredited Investor set out in Appendix I, and the Subscriber has
checked the sub-paragraph(s) applicable to the
Subscriber);
(b)
no person has made to
the Subscriber any written or oral representations:
(i)
that any person will
resell or repurchase any of the Units;
(ii)
that any person will
refund the purchase price of any of the Units; or
(iii)
as to the future price
or value of any of the Units;
(a)
the Subscriber will not
become a “control person” by virtue of the purchase of
the Subscriber’s Shares, and does not intend to act in
concert with any other person to form a control group of the
Issuer;
(b)
the Subscriber has no
knowledge of a “material fact” or “material
change” in the affairs of the Corporation that has not been
generally disclosed to the public, save knowledge of this
particular transaction;
(c)
the Subscriber’s
decision to tender this offer and purchase the Subscriber’s
Units has not been made as a result of any verbal or written
representation as to fact or otherwise made by or on behalf of the
Corporation or any other person and is based entirely upon
currently available public information concerning the
Corporation;
(d)
the offer made by this
subscription is irrevocable by the Subscriber and requires
acceptance by the Corporation;
(e)
the Corporation will
have the right to accept this subscription offer in whole or in
part and the acceptance of this subscription offer will be
conditional upon the sale of the Subscriber’s Units to the
Subscriber being exempt from the prospectus and registration
requirements under applicable relevant securities
legislation;
(f)
the Subscriber has the
legal capacity and competence to enter into and execute this
Agreement and to take all actions required pursuant hereto and, if
an individual is of full age of majority, and if the Subscriber is
a corporation it is duly incorporated and validly subsisting under
the laws of its jurisdiction of incorporation, and all necessary
approvals by its directors, shareholders and others have been given
to authorize the execution of this Agreement on behalf of the
Subscriber;
(g)
the entering into of
this Agreement and the transactions contemplated hereby will not
result in the violation of any of the terms and provisions of any
law applicable to, or the constating documents of, the Subscriber
or of any agreement, written or oral, to which the Subscriber may
be a party or by which it is or may be bound;
(h)
this Agreement has been
duly executed and delivered by the Subscriber and constitutes a
legal, valid and binding obligation of the Subscriber enforceable
against the Subscriber;
(i)
the Subscriber has been
advised to consult its own legal advisors with respect to the
applicable hold periods imposed in respect of the Shares by
applicable securities legislation and regulatory policies and
confirms that no representations by the Corporation have been made
respecting the hold periods applicable to the Units;
(j)
the Subscriber is aware
of the risks and other characteristics of the Units and of the fact
that the Subscriber may not be able to resell the Units purchased
by it except in accordance with the applicable securities
legislation and regulatory policies and that the Units may be
subject to resale restrictions and may bear a legend to this
effect;
(k)
if required by
applicable securities legislation, policy or order or by any
securities commission, stock exchange or other regulatory
authority, the Subscriber will execute, deliver, file and otherwise
assist the Corporation in filing, such reports, undertakings and
other documents with respect to the issue of the Corporation as may
be required;
(l)
the Subscriber
acknowledges that upon completion of the Private Placement, the
Corporation may pay certain commissions or finder’s fees with
respect to the Subscriber’s purchase of Units;
(m)
the Subscriber has not
purchased the Units as a result of any form of general solicitation
or general advertising, including advertisements, articles, notices
or other communication published in any newspaper, magazine or
similar media or broadcast over radio, television or internet or
any seminar or meeting whose attendees have been invited by general
solicitation or general advertising;
(n)
the Subscriber has such
knowledge in financial and business affairs as to be capable of
evaluating the merits and risks of its investment and is able to
bear the economic risk of loss of its investment;
(o)
the Subscriber agrees
that the Corporation may be required by law or otherwise to
disclose to regulatory authorities the identity of the Subscriber
and, if applicable, the beneficial purchaser for whom the
Subscriber may be acting; and
(p)
the Subscriber agrees
that the above representations, warranties, covenants and
acknowledgements in this subsection will be true and correct both
as of the execution of this subscription and as of the day of
Closing.
2.2
The foregoing
representations, warranties, covenants and acknowledgements are
made by the Subscriber with the intent that they be relied upon by
the Corporation in determining its suitability as a purchaser of
Shares, and the Subscriber hereby agrees to indemnify the
Corporation against all losses, claims, costs, expenses and damages
or liabilities which any of them may suffer or incur as a result of
reliance thereon. The Subscriber undertakes to notify the
Corporation immediately of any change in any representation,
warranty or other information relating to the Subscriber set forth
herein which takes place prior to the Closing.
1.
REPRESENTATIONS,
WARRANTIES AND COVENANTS OF THE CORPORATION
3.1
The Corporation
represents, warrants and covenants that, as of the date given above
and at the Closing:
(a)
the Corporation is a
valid and subsisting corporation incorporated and in good standing
under the laws of the State of Delaware;
(b)
the Corporation is duly
registered and licensed to carry on business in the jurisdictions
in which it carries on business or owns property where required
under the laws of that jurisdiction;
(c)
the Corporation will
reserve or set aside sufficient shares in its treasury to issue the
Units, including the Shares that are issuable upon the proper
exercise of the Warrants, and upon their issuance the Shares
comprising the Units will be duly and validly issued as fully paid
and non-assessable, and when issued in accordance with the proper
exercise of the Warrants, the Shares issuable thereunder shall be
duly and validly issued as fully paid and
non-assessable;
(d)
the Corporation has
complied and will comply fully with the requirements of all
applicable corporate and securities laws and administrative
policies and directions in relation to the issue of its securities
and in all matters relating to the Private Placement;
(e)
the issue and sale of
the Units by the Corporation does not and will not conflict with,
and does not and wi
