<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report Pursuant to Section 13 or 15(d) of
The Securities Act of 1934
Date of Report: February 11, 1998
SYMPLEX COMMUNICATIONS CORPORATION
----------------------------------
(Exact name of registrant as specified in its charter)
<TABLE>
<CAPTION>
<S> <C> <C>
Delaware 0-22631 38-3338110
- ------------------------------ ---------------- ------------------
(State or other jurisdiction (Commission File I.R.S. Employer
of incorporation) Number) Identification No.)
</TABLE>
5 Research Drive
Ann Arbor, Michigan 48103
-------------------------
(Address, including zip code, of principal executive offices)
(313) 995-1555
--------------
(Registrant's telephone number,
including area code)
<PAGE>
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits.
--------
No. Description
--- -----------
1.1 Agency Offering Agreement dated May 16, 1997 by and between
Symplex Communications Corporation and Canaccord Capital
Corporation.
1.2 Sponsorship Agreement dated April 29, 1997 by and between Symplex
Communications Corporation and Canaccord Capital Corporation.
4.2 Form of warrant granted to holders of convertible promissory
notes ("Note Conversion Warrants").
4.3 Form of warrant granted to Canaccord Capital Corporation and C.M.
Oliver & Co. ("Underwriter Warrants").
4.4 Form of warrant granted to Opus Capital, LLP ("Opus Services
Warrant").
ITEM 9. SALES OF EQUITY SECURITIES PURSUANT TO REGULATION S.
On February 11, 1998, the Company completed its initial public offering (the
"Offering") of Common Stock in British Columbia, Canada, selling 3,500,000
shares (the "Shares") of Common Stock for aggregate proceeds of US$3,500,000.
The purchasers were all non-U.S. residents. Consideration for the issuance of
the Shares was US$3,125,000 in cash and conversion of US$375,000 in principal
amount of convertible notes ("Convertible Notes") held by non-U.S. residents.
The Convertible Notes were converted into 375,000 shares of Common Stock and
warrants ("Note Conversion Warrants") to purchase 187,500 shares of Common Stock
at an exercise price of US$1.00. The Note Conversion Warrants expire January
26, 1999.
The principal underwriters were Canaccord Capital Corporation and C.M. Oliver &
Co. In connection with the Offering, the Company paid commissions and
underwriters discounts of $262,500, and issued to the underwriters 70,000 shares
of Common Stock and warrants ("Underwriter Warrants") to purchase 400,000 shares
of Common Stock, exercisable at the US$1.00. The Underwriter Warrants expire
February 11, 1999.
The Company believes this transaction was exempt from the registration
requirements of Section 5 of the Securities Act of 1933 (the "Securities Act")
by virtue of the exemption provided by Regulation S of the Securities Act.
Concurrent with the closing of the Offering, pursuant to a letter agreement
dated February 12, 1997 between the Company and Opus Capital LLP, the Company on
February 11, 1998 granted to Opus Capital LLP warrants (the "Opus Service
Warrants") to purchase 233,333 shares of Common Stock,
-2-
<PAGE>
exercisable at a price of US$1.00 the first year after issuance and at a price
of US$1.15 the second year after issuance. The Opus Service Warrants expire
February 11, 2000.
The Company believes the investor in this transaction is sophisticated and had
access to information about the Company, and that this transaction was private
in nature and was exempt from the registration requirements of Section 5 of the
Securities Act by virtue of the exemption contained in Section 4(2) of the
Securities Act.
-3-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
DATED, this 23rd day of February, 1998.
SYMPLEX COMMUNICATIONS CORPORATION
By: /s/ Thomas Radigan
-----------------------------------
Thomas Radigan
Chief Financial Officer
-4-
<PAGE>
EXHIBIT 1.1
- -------------------------------------------------------------------------------
AGENCY OFFERING AGREEMENT
- -------------------------------------------------------------------------------
THIS AGREEMENT dated for reference May 16, 1997, is made
BETWEEN
SYMPLEX COMMUNICATIONS CORPORATION, 5 Research Drive, Ann Arbor,
Michigan, 48103
(the "Issuer");
AND
CANACCORD CAPITAL CORPORATION, 2200-609 Granville Street, Vancouver,
British Columbia, V7Y 1H2
(the "Agent").
WHEREAS:
A. The Issuer wishes to raise money for the purposes set forth in its
Prospectus, which is to be filed by the Issuer with the British Columbia
Securities Commission (the "Commission") and the Vancouver Stock Exchange (the
"Exchange"), by offering for sale certain of its securities;
B. The Issuer wishes to appoint the Agent to distribute those securities
outside of the United States and the Agent is willing to accept the appointment
on the terms and conditions of this Agreement;
THE PARTIES to this Agreement therefore agree:
1. DEFINITIONS
In this Agreement:
(a) "Agent's Warrants" means the common share purchase warrants of the
Issuer issued to the Agent in consideration of its guarantee to
purchase any Shares which are not subscribed for at the conclusion
of the Offering;
(b) "Agent's Warrant Shares" means any shares of Common stock of the
Issuer that may be issued on exercise of the Agent's Warrants;
(c) "Distribution" means the distribution or sale of the Securities
outside of the United States pursuant to this Agreement and includes
the distribution of the Agent's Warrants;
(d) "Effective Date" means the date on which the final receipt for the
Prospectus is issued by the Commission;
(e) "Material Change" has the meaning defined in the Securities Act
(British Columbia);
(f) "Material Fact" has the meaning defined in the Securities Act
(British Columbia);
(g) "Misrepresentation" has the meaning defined in the Securities Act
(British Columbia);
<PAGE>
-2-
(h) "Offering" means the offering of the Shares under the Prospectus;
(i) "Offering Day" means the day on which the Offering is made;
(j) "Offering Price" means U.S.$1.00 per Share;
(k) "Prospectus" means any preliminary offering circular and/or the
preliminary prospectus and any final offering circular and/or final
prospectus filed or intended to be filed by the Issuer with the
Regulatory Authorities in connection with the Offering and any
amendments to such circulars and/or preliminary prospectuses and
which may be filed with the Regulatory Authorities;
(l) "Regulatory Authorities" means the Commission and the Exchange;
(m) "Securities" means the Shares, the Agent's Warrants, Agent's Warrant
Shares, the Corporate Finance Shares and any common shares of the
Issuer which may be offered for sale under the Prospectus, pursuant
to a secondary or shareholder offering; and
(n) "Shares" means the shares of Common stock of the Issuer to be
distributed under the Prospectus.
2. APPOINTMENT OF AGENT
The Issuer appoints the Agent as its exclusive agent and the Agent accepts the
appointment and agrees to act as the exclusive agent of the Issuer to offer the
Shares for sale outside of the United States under the Prospectus at the
Offering Price in a number equal to 3,500,000 less the number of AConversion
Shares" issued under the "Canadian Bridge Financing Notes" which, in turn, were
issued in accordance with the agency agreement dated August 12, 1997, between
the Issuer and the Agent.
3. LISTING APPLICATION AND CONDUCT OF OFFERING
3.1 Prior to the Effective Date, the Issuer will apply to the Exchange for a
conditional listing of its common shares.
3.2 Following the Effective Date and after consulting with the Exchange, the
Issuer and the Agent will set the Offering Day.
3.3 The Issuer will reserve or set aside sufficient shares in its treasury to
issue the Shares and Agent's Warrant Shares.
3.4 The Offering Day will be on or before the earlier of the day which is:
(a) 90 days after the Effective Date; and
(b) 12 months after the date of the issue by the Commission of the
receipt for the preliminary prospectus filed in connection with the
Offering.
3.5 The Offering will be made through the facilities of and in accordance
with the rules and policies of the Exchange.
3.6 After the Offering has been completed, the Issuer and the Agent will
file any documents required by the Exchange in order to remove the conditional
listing and to list, post and call the common shares of the Issuer for trading
on the Exchange.
3.7 The Agent will advise the Issuer and its counsel in writing when the
Distribution under the Prospectus is complete.
4. OPINIONS AND CERTIFICATES
4.1 On the Effective Date, the Issuer will deliver the following documents to
the Agent and its counsel in a form acceptable to them:
<PAGE>
-3-
(a) a comfort letter from the auditor of the Issuer, dated as of the
date of the Prospectus and addressed to the Agent and its counsel,
relating to the accuracy of the financial statements forming part of
the Prospectus and the accuracy of the financial, numerical and
certain other information disclosed in the Prospectus;
(b) an opinion of counsel for the Issuer, dated as of the Effective Date
and addressed to the Agent and its counsel, relating to any legal
matter in connection with the creation, issuance and sale of the
Securities for which the Agent may reasonably request an opinion
(the "Legal Opinion");
(c) a certificate of the Issuer, dated as of the Effective Date and
signed by the president of the Issuer or by another officer approved
by the Agent, certifying certain facts relating to the Issuer and
its affairs (the "Officer's Certificate"); and
(d) any other certificates, comfort letters or opinions in connection
with any matter related to the Prospectus which are reasonably
requested by the Agent or its counsel.
4.2 On the day prior to the Offering Day the Issuer will provide the
Agent and its counsel with evidence of the necessary approval of the Regulatory
Authorities for the Offering, the Legal Opinion and the Officer's Certificate
updated to 4:00 p.m. on the day prior to the Offering Day.
5. AGENT'S COMMISSION
5.1 In consideration of the services performed by the Agent under this
Agreement, the Issuer agrees to pay the Agent a commission of 7.5% of the
Offering Price per share sold whether purchased by the Agent for its own account
or for its clients or purchased by other members of the Exchange for their own
accounts or for their clients, payable in lawful Canadian currency (the "Agent's
Commission").
5.2 In consideration of the corporate finance services to be provided by
the Agents, the Issuer will also pay to the Agents a corporate finance fee of
70,000 shares of the Common stock of the Issuer (the "Corporate Finance
Shares") to be issued on the Effective Date, subject to any necessary approval
from the Regulatory Authorities.
6. GUARANTEED AGENCY AND AGENT'S WARRANTS
6.1 The Agent will purchase any of the Shares which are unsubscribed for
on the Offering Day (the "Guarantee") including any Shares in respect of which a
subscription has been received but is not binding on the subscriber by reason of
the receipt by the Agent, in accordance with the Securities Act (British
Columbia), of written notice evidencing the intention of the subscriber not to
be bound by the subscription.
6.2 In consideration for the Guarantee, the Issuer will issue Agent's
Warrants to the Agent or to members of its selling group as directed by the
Agent entitling the Agent to purchase up to 400,000 Agent's Warrant Shares.
6.3 The Agent's Warrants will be non-transferable and one Agent's
Warrant will entitle the holder to purchase one common share of the Issuer at
the Offering Price.
6.4 The right to purchase Agent's Warrant Shares under the Agent's
Warrants may be exercised at any time up to the close of business 365 days from
the day the common shares of the Issuer are listed, posted and called for
trading on the Exchange.
6.5 The terms governing the Agent's Warrants will include, among other
things, provisions for the appropriate adjustment in the class, number and price
of the Agent's Warrant Shares upon the occurrence of certain events, including
any subdivision, consolidation or reclassification of the shares, the payment of
stock dividends or the amalgamation of the Issuer.
6.6 The issue of the Agent's Warrants will not restrict or prevent the
Issuer from obtaining any other financing, nor from issuing additional
securities or rights during the period within which the Agent's Warrants are
exercisable.
<PAGE>
-4-
7. CLOSING
7.1 In this Section:
(a) "Certificates" representing the Shares and the Corporate Finance
Shares in the names and denominations reasonably requested by the
Agent and the certificates representing the Agent's Warrants;
(b) "Proceeds" means the gross proceeds of the Offering, less:
(i) that portion of the Agent's Commission payable in cash;
(ii) the expenses of the Agent in connection with the Offering
which have not been previously paid by the Issuer;
(iii) any amount which has been attached by garnishing order or
other form of attachment; and
(iv) any amount already received by the Issuer.
7.2 The Issuer will, within three business days of the Offering Day,
deliver the Certificates, through its registrar and transfer agent, to the Agent
against payment of the Proceeds.
7.3 If the Issuer has satisfied all of its obligations under this
Agreement, the Agent will, within three business days of the Offering Day, pay
the Proceeds to the Issuer through its registrar and transfer agent, against
delivery of the Certificates.
7.4 The obligation of the Agent on the Offering Day to pay the Proceeds to
the Issuer shall be subject to the following conditions precedent:
(a) the Issuer shall have performed or complied with each covenant and
obligation herein provided on its part to be performed or complied
with;
(b) each of the representations and warranties of the Issuer herein
shall continue to be true, and the Officer's Certificate shall contain
certification to that effect;
(c) the Issuer shall have made, within the time limited, each of the
deliveries provided for in Section 4 hereof; and
(d) the Issuer shall have, to the satisfaction of the Agent's counsel,
taken or caused to be taken all steps and proceedings which may be
requisite under the Act to qualify the Distribution of the Shares to
the public in British Columbia through registrants who have complied
with the provision of the Act, including the filing and the obtaining
of receipts for the Prospectus.
8. MATERIAL CHANGES
8.1 If, after the Prospectus is filed with the Regulatory Authorities but
before the conclusion of the distribution of all the Securities under the
Prospectus, a Material Change or change in a Material Fact occurs in the affairs
of the Issuer, the Issuer will:
(a) notify the Agent immediately, in writing, with full particulars of
the change;
(b) file with the Regulatory Authorities as soon as practicable, and in
any event no later than 10 days after the change occurs, an amendment
to the Prospectus in a form acceptable to the Agent disclosing the
material change; and
(c) provide as many copies of that amendment to the Agent as the Agent
may reasonably request.
8.2 The Issuer shall in good faith discuss with the Agent any fact or
change in circumstances (actual and anticipated, contemplated or threatened,
whether financial or otherwise) which is of such a nature that there is
reasonable doubt as to whether notice in writing need be given to the Agent
pursuant to the previous Subsection.
<PAGE>
-5-
9. TERMINATION
9.1 The Agent may terminate its obligations under this Agreement by notice
in writing to the Issuer at any time before the opening of the market on the
Offering Day if:
(a) there is an event, accident, governmental law or regulation or other
occurrence of any nature which, in the opinion of the Agent, seriously
affects or will seriously affect the financial markets or the business
of the Issuer or any subsidiary of the Issuer or the ability of the
Agent to perform its obligations under this Agreement or an investor's
decision to purchase Shares;
(b) an adverse Material Change or change in a Material Fact relating to
any of the Securities occurs or is announced by the Issuer;
(c) following a consideration of the history, business, products,
property or affairs of the Issuer or its principals and promoters, or
the state of the financial markets in general, or the state of the
market for the Issuer's securities in particular, the Agent
determines, in its sole discretion, that it is not in the interest of
investors to complete the Offering;
(d) the Securities cannot, in the opinion of the Agent, be profitably
marketed due to the state of the financial markets; or
(e) an enquiry or investigation (whether formal or informal) in relation
to the Issuer, or the Issuer's directors, officers or promoters, is
commenced or threatened by an officer or official of any competent
authority.
9.2 The Agent may terminate its obligations under this Agreement at any
time if:
(a) any order to cease trading (including communicating with persons in
order to obtain expressions of interest) in the securities of the
Issuer is made by a competent regulatory authority and that order is
still in effect;
(b) the Issuer is in breach of any term of this Agreement;
(c) the Agent determines that any of the representations or warranties
made by the Issuer in this Agreement is false or has become false.
9.3 If the Agent exercises its right to terminate this Agreement, then the
Issuer will immediately issue a press release setting out particulars of the
termination.
9.4 This Agreement will terminate if a final receipt for the Prospectus is
not issued by the Commission on or before January 31, 1998.
9.5 The Agent will be relieved of all obligations under this Agreement if
the Issuer or its filing solicitor does not receive, within five days before the
Effective Date, written confirmation from the Agent or its solicitors that this
Agreement remains in effect and that the Agent accepts the proposed Effective
Date.
10. WARRANTIES AND REPRESENTATIONS
10.1 The Issuer warrants and represents to the Agent that:
(a) the Issuer and its subsidiaries, if any, are valid and subsisting
corporations duly incorporated and in good standing under the Delaware
General Corporations Law;
(b) the Issuer and its subsidiaries, if any, are duly registered and
licenced to carry on business or own property in the jurisdictions in
which they carry on business or own property;
(c) the authorized and issued capital of the Issuer is as disclosed in
the Prospectus and the issued and outstanding shares of the Issuer are
fully paid and non-assessable;
(d) the Issuer will reserve or set aside sufficient shares in its
treasury to issue the Shares, Agent's Warrant
<PAGE>
-6-
Shares and the Corporate Finance Shares;
(e) except as qualified by the Prospectus, the Issuer is the beneficial
owner of the properties, business and assets or the interests in the
properties, business or assets referred to in the Prospectus; all
agreements by which the Issuer holds an interest in a property,
business or asset are in good standing according to their terms, and
the properties are in good standing under the applicable laws of the
jurisdictions in which they are situated;
(f) the Prospectus will and does contain full, true and plain disclosure
of all "material facts", within the meaning of the Securities Act
(British Columbia), in relation to the Issuer, its subsidiaries (if
any), its business and its securities, and will and does not contain
any "misrepresentations" within the meaning of the Securities Act
(British Columbia), and is accurate in all material respects and
omits no fact, the omission of which will make such representations
misleading or incorrect;
(g) the financial statements of the Issuer which form part of the
Prospectus have been prepared in accordance with United States
generally accepted accounting principles, accurately reflect the
financial position and all material liabilities (accrued, absolute,
contingent or otherwise) of the Issuer and its subsidiaries, if any,
as at the date of the financial statements and there have been no
adverse material changes in the financial position of the Issuer
since that date, except as fully and plainly disclosed in the
Prospectus;
(h) the Issuer has complied and will comply fully with the requirements
of all applicable corporate and securities laws and administrative
policies and directions, including, without limitation, the
Securities Act (British Columbia) and the U.S. Securities Act of
1933 (the "1933 Act") and their regulations and the Delaware General
Corporations Law in relation to the issue and trading of its
securities and in all matters relating to the Offering;
(i) the issue and sale of the Securities by the Issuer does not and will
not conflict with, and does not and will not result in a breach of,
any of the terms of its incorporating documents or any agreement or
instrument to which the Issuer is a party;
(j) except as disclosed in the Prospectus, neither the Issuer or its
subsidiaries, if any, is a party to any actions, suits or
proceedings which could materially affect its business or financial
condition, and no such actions, suits or proceedings are
contemplated or have been threatened;
(k) there are no judgments against the Issuer or any of its
subsidiaries, if any, which are unsatisfied, nor are there any
consent decrees or injunctions to which the Issuer or any of its
subsidiaries, if any, is subject;
(l) this Agreement has been duly authorized by all necessary corporate
action on the part of the Issuer and the Issuer has full corporate
power and authority to undertake the Offering;
(m) there is not presently, and will not be until the conclusion of the
Distribution, any Material Change or change in any Material Fact
relating to the Issuer which has not been or will not be fully
disclosed in the Prospectus or otherwise to the Agent;
(n) no order ceasing, halting or suspending trading in securities of the
Issuer nor prohibiting the sale of such securities has been issued
to and is outstanding against the Issuer or its directors, officers
or promoters or against any other companies that have common
directors, officers or promoters and no investigations or
proceedings for such purposes are pending or threatened;
(o) except as disclosed in the Prospectus, no person has any right,
agreement or option, present or future, contingent or absolute, or
any right capable of becoming such a right, agreement or option, for
the issue or allotment of any unissued shares in the capital of the
Issuer or its subsidiaries, if any, or any other security
convertible into or exchangeable for any such shares, or to require
the Issuer or its subsidiaries, if any, to purchase, redeem or
otherwise acquire any of the issued and outstanding shares in its
capital;
(p) the Issuer and its subsidiaries, if any, have filed all federal,
state, provincial, local and foreign tax returns which are required
to be filed, or have requested extensions thereof, and have paid all
taxes required to be paid by them and any other assessment, fine or
penalty levied against them, to the extent that any of the foregoing
is due and payable, except for such assessments, fines and penalties
<PAGE>
-7-
which are currently being contested in good faith;
(q) the Issuer and its subsidiaries, if any, have established on their
books and records reserves which are adequate for the payment of all
taxes not yet due and payable and there are no liens for taxes on
the assets of the Issuer or its subsidiaries, if any, except for
taxes not yet due, and there are no audits of any of the tax returns
of the Issuer or its subsidiaries, if any, which are known by the
Issuer's management to be pending, and there are no claims which
have been or may be asserted relating to any such tax returns which,
if determined adversely, would result in the assertion by any
governmental agency of any deficiency which would have a material
adverse effect on the properties, business or assets of the Issuer
or its subsidiaries, if any ;
(r) other than the Agent, no person, firm or corporation acting or
purporting to act at the request of the Issuer is entitled to any
brokerage, agency or finder's fee in connection with the
transactions described herein; and
(s) except as set out in the Prospectus, or otherwise disclosed to the
Agents in writing, the Issuer will not issue or sell or agree to
issue or sell any common shares in its capital, or securities
convertible into or exchangeable into common shares prior to the
Effective Date, other than at a price equal to the price at which
the Shares are offered, without the prior written consent of the
Agents, which consent will not be unreasonably withheld and the
Issuer agrees that any such common shares or securities convertible
into or exchangeable into common shares will be sold to accounts
with the Agents; and
(t) the Issuer shall file a registration statement with the U.S.
Securities and Exchange Commission ("SEC")seeking the registration
of the Issuer's class of common shares pursuant to Section12(g) of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and thereafter shall diligently prosecute such registration
so that it may, with the consent of the Agents become effective on
the sixtieth day following such filing (or such earlier date as
shall be mutually satisfactory to the Agents and the Issuer) and
prior to the Offering Day, and shall thereafter timely make all such
filings as are required by section 13 of the Exchange Act; and
(u) the warranties and representations in this Subsection are true and
correct and will remain so as of the conclusion of the distribution
under the Prospectus.
10.2 The Agent warrants and represents to the Issuer that:
(a) it is a valid and subsisting corporation under the law of the
jurisdiction in which it was incorporated, continued or amalgamated;
(b) it is a member in good standing of the Exchange; and
(c) it has complied with and will fully comply with the requirements of
all applicable securities laws, including, without limitation, the
Securities Act (British Columbia), its rules and regulations and the
by-laws and rules of the Exchange, in relation to trading in the
Securities and all matters relating to the Offering.
10.3 The Issuer warrants and represents to the Agents that neither the
Issuer nor any other person described in SEC Rule 262(a) or (b) is or has been
the subject of any matters or proceedings as described therein, and the Agents
warrant and represent to the Issuer that neither it nor any of its directors or
officers is or has been the subject of any matters or proceedings as described
in SEC Rule 262(b) or (c).
11. EXPENSES OF AGENT
11.1 The Issuer will pay all of the expenses of the Offering and all the
expenses reasonably incurred by the Agent in connection with the Offering
including, without limitation, the fees and expenses of the solicitors for the
Agent.
11.2 The Issuer will pay the expenses referred to in the previous
Subsection even if the Prospectus and this Agreement are not accepted by the
Regulatory Authorities or the transactions contemplated by this Agreement are
not completed or this Agreement is terminated, unless the failure of acceptance
or completion or the termination is the result of a breach of this Agreement by
the Agent.
<PAGE>
-8-
11.3 The Agent may, from time to time, render accounts to the Issuer for
its expenses for payment on or before the dates set out in the accounts.
11.4 The Issuer authorizes the Agent to deduct its reasonable expenses in
connection with the Offering from the proceeds of the Offering, including
expenses for which an account has not yet been rendered to the Issuer.
12. FILING OF PROSPECTUS
12.1 The Issuer will cause the Prospectus to be filed with the Regulatory
Authorities, will deliver all necessary copies of the Prospectus to the
Regulatory Authorities and will use its best efforts to have the Prospectus
accepted by the Regulatory Authorities.
12.2 The Issuer will provide the Agent with as many copies of the
Prospectus as the Agent reasonably requests.
12.3 Delivery of the Prospectus and any amendment thereto shall constitute
a representation and warranty by the Issuer to the Agent that all information
and statements (except information and statements relating solely to the Agent)
contained in the Prospectus and any amendment thereto are true and correct in
all material respects at the time of delivery thereof and contain no
Misrepresentations and constitute full, true and plain disclosure of all
Material Facts relating to the Issuer and the Securities and that no Material
Fact or material information has been omitted therefrom (except facts of
information relating solely to the Agent) which is required to be stated therein
or is necessary to make statements of information contained therein not
misleading in light of the circumstances under which they were made. Such
delivery shall also constitute the Issuer's consent to the Agent's use of the
Prospectus, any amendment thereto and any other documents supplied to the Agent
by the Issuer for the purpose of the sale of Shares in British Columbia in
compliance herewith and with the Securities Act (British Columbia).
12.4 With respect to matters involving the potential application of United
States securities laws, the parties agree as follows:
(a) it is intended that the initial sale of the Securities will be made
solely to persons who are neither U.S. Persons, Distributors nor their
affiliates, as those terms are used in SEC Regulation S; and
(b) that in order for the sale of the Securities to qualify for the
exemption from 1933 Act registration provided by SEC Rule 903(c)(2):
(i) the Agent agrees that all offers and sales of the securities
prior to the expiration of the 40 day restricted period specified
in such Rule 903(c)(2) shall be made only: in accordance with
the provisions of SEC Rules 903 or 904; pursuant to registration
of the securities under the 1933 Act; or pursuant to an available
exemption from the registration requirements of the 1933 Act; and
(ii) the Issuer and the Agent agree that all offering materials and
documents (other than press releases) used in connection with
offers and sales of the securities prior to the expiration of the
40 day restricted period specified in Rule 903(c)(2) shall
include statements to the effect that the securities have not
been registered under the 1933 Act and may not be offered or sold
in the United States or to U.S. persons (other than distributors)
unless the securities are registered under the 1933 Act, or an
exemption from the registration requirements of the 1933 Act is
available; and that such statements shall appear:
(A) on the cover or inside cover page of any prospectus or
offering circular used in connection with the offer or
sale of the Securities;
(B) in the underwriting section of any prospectus or offering
circular used in connection with the offer or sale of the
Securities; and
(C) in any advertisement made or issued by the Issuer, the
Agent, any of their respective affiliates, or any person
acting on behalf of any of the foregoing.
12.5 Although it is intended that the offering of common shares pursuant to
this Agency Agreement will be made solely to persons who are neither U.S.
Persons, Distributors nor their affiliates, as those terms are used in
Regulation S, at the request of the Agent:
<PAGE>
-9-
(a) the Issuer will file such form of registration statement as may be
available to the Issuer (a "Registration Statement") and will use
its best efforts to ensure that the effectiveness of the
Registration Statement will be declared contemporaneously with, and
not later than, the issuance of a receipt for the (final) Prospectus
by the Commission; and
(b) if, at any time following the closing of the Issuer's distribution
via the Prospectus in Canada, the Agent is unable, in the opinion of
its counsel (which counsel shall be reasonably acceptable to the
Issuer), to sell any of the securities acquired for its own account
hereunder in British Columbia or the United States pursuant to a
U.S. securities registration exemption which will leave such
securities free trading in the hands of the purchaser(s), the Issuer
will, at its expense and promptly upon the written request of the
Agent, file a Registration Statement with the SEC covering the
Agent's sale of all such securities, and will thereafter diligently
seek the effectiveness of such Registration Statement.
13. GARNISHING ORDERS
13.1 If at any time, up to and including the final date of payment for
the Securities, the Agent receives a garnishing order or other form of
attachment purporting to attach or garnish a part or all of the sale price or
exercise price of any of the Securities, the Agent will be free to pay the
amount purportedly attached or garnished into court.
13.2 Any payment by the Agent into court contemplated in this Agreement
will be deemed to have been received by the Issuer as payment by the Agent
against the sale price or exercise price of the Securities to the extent of the
amount paid, and the Issuer will be bound to issue and deliver the Securities
proportionately to the amount paid by the Agent.
13.3 The Agent will not be bound to ascertain the validity of any
garnishing order or attachment, or whether in fact it attaches any monies held
by the Agent, and the Agent will be free to act with impunity in replying to any
garnishing order or attachment.
13.4 The Issuer will release, indemnify and save harmless the Agent in
respect of all damages, costs, expenses or liability arising from any acts of
the Agent under this Section.
14. REPORTS ON SOURCE AND APPLICATION OF FUNDS
The Issuer will deliver to the Agent, at its request, within 30 days of the end
of each month following the completion of the Offering, a copy of any financial
report required to be filed with the Regulatory Authorities relating to the
expenditure of the proceeds of the Offering.
15. INDEMNITY
15.1 The Issuer will indemnify the Agent and each of the Agent's
controlling persons, agents, directors, officers, affiliates and employees
(collectively, the "Indemnified Parties") and save them harmless against all
losses, claims, damages or liabilities:
(a) existing (or alleged to exist) by reason of untrue statements
contained in the Prospectus or other written or oral representation
made by the Issuer to an investor in connection with the Offering or
by reason of the omission to state in the Prospectus any fact
necessary to make such statements or representation not misleading
(except for information and statements supplied by and referring
solely to the Agent);
(b) arising directly or indirectly out of any order made by any
regulatory authority based upon an allegation that any such untrue
statement or representation or omission exists (except for
information and statements supplied by and referring solely to the
Agent) including, without limitation, an order that trading in or
distribution of the Securities is to cease;
(c) resulting from the failure by the Issuer to file an amendment to the
Prospectus as required by this Agreement;
(d) resulting from the breach by the Issuer of any of the terms of this
Agreement;
<PAGE>
-10-
(e) resulting from any representation or warrant made by the Issuer
herein not being true or ceasing to be true;
(f) if the Issuer fails to issue and deliver the certificates for the
Securities in the form and denominations satisfactory to the Agent
at the time and place required by the Agent with the result that any
completion of a sale of the Securities does not take place; or
(g) if, following the completion of a sale of any of the Securities, a
determination is made by any competent authority setting aside the
sale unless that determination arises out of an act or omission by
the Agent.
15.2 If any action or claim is brought against an Indemnified Party in
respect of which indemnity may be sought from the Issuer pursuant to this
Agreement, the Indemnified Party will promptly notify the Issuer in writing.
15.3 The Issuer will assume the defence of the action or claim, including
the employment of counsel and the payment of all expenses.
15.4 The Indemnified Party will have the right to employ separate
counsel, and the Issuer will pay the fees and expenses of such counsel.
15.5 The indemnity provided for in this Section will not be limited or
otherwise affected by any other indemnity obtained by the Indemnified Party from
any other person in respect of any matters specified in this Agreement and will
continue in full force and effect until all possible liability of the
Indemnified Party arising out of the transactions contemplated by this Agreement
has been extinguished by the operation of law.
15.6 If indemnification under this Agreement is found in a final judgment
(not subject to further appeal) by a court of competent jurisdiction not to be
available for reason of public policy, the Issuer and the Indemnified Parties
will contribute to the losses, claims, damages, liabilities or expenses (or
actions in respect thereof) for which such indemnification is held unavailable
in such proportion as is appropriate to reflect the relative benefits to and
fault of the Issuer, on the one hand, and the Indemnified Parties on the other
hand, in connection with the matter giving rise to such losses, claims, damages,
liabilities or expenses (or actions in respect thereof). No person found liable
for a fraudulent misrepresentation (within the meaning of applicable securities
laws) will be entitled to contribution from any person who is not found liable
for such fraudulent misrepresentation.
15.7 To the extent that any Indemnified Party is not a party to this
Agreement, the Agent will obtain and hold the right and benefit of this Section
in trust for and on behalf of such Indemnified Party.
15.8 The Issuer will make no claim for, and waives irrevocably any right
by statute or common law to, contribution against any Indemnified Party in the
event an action is brought against the Issuer as a result of any of the events
described in Subsection 15.1.
16. ASSIGNMENT AND SELLING GROUP PARTICIPATION
16.1 The Agent will not assign this Agreement or any of its rights under
this Agreement nor, with respect to the Securities, enter into any agreement in
the nature of an option or a sub-option unless and until, for each intended
transaction, the Agent has obtained the consent of the Issuer and notice has
been given to and accepted by the Regulatory Authorities.
16.2 The Agent may offer selling group participation in the normal course
of the brokerage business to selling groups of other licensed dealers, brokers
and investments dealers, who may or who may not be offered part of the
commissions or warrants to be received by the Agent pursuant to this Agreement.
17. NOTICE
17.1 Any notice under this Agreement will be given in writing and must be
delivered, sent by facsimile transmission or mailed by prepaid post and
addressed to the party to which notice is to be given at the address indicated
above, or at another address designated by such party in writing.
17.2 If notice is sent by facsimile transmission or is delivered, it will
be deemed to have been given at the time of transmission or delivery.
<PAGE>
-11-
17.3 If notice is mailed, it will be deemed to have been received 48 hours
following the date of mailing of the notice.
17.4 If there is an interruption in normal mail service due to strike, labour
unrest or other cause at or prior to the time a notice is mailed, the notice
will be sent by facsimile transmission or will be delivered.
18. TIME
Time is of the essence of this Agreement and will be calculated in accordance
with the provisions of the Interpretation Act (British Columbia).
19. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The representations, warranties, covenants and indemnities of the parties
contained in this Agreement will survive the closing of the purchase and sale of
the Securities.
20. LANGUAGE
Wherever a singular or masculine expression is used in this Agreement, that
expression is deemed to include the plural, feminine or the body corporate where
required by the context.
21. ENUREMENT
This Agreement enures to the benefit of and is binding on the parties to this
Agreement and their successors and permitted assigns.
22. HEADINGS
The headings in this Agreement are for convenience of reference only and do not
affect the interpretation of this Agreement.
23. COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of which will
be deemed to be an original and all of which will constitute one agreement,
effective as of the reference date given above.
"THE BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK"
<PAGE>
-12-
24. LAW
This Agreement is governed by the law of British Columbia and shall be treated
in all respects as a British Columbia contract, and the parties hereto
irrevocably attorn and submit to the exclusive jurisdiction of the courts of
British Columbia with respect to any dispute related to this Agreement.
This document was executed and delivered as of the date given above.
The common seal of )
SYMPLEX COMMUNICATIONS CORPORATION )
was hereunto affixed in the )
presence of: )
)
/s/ Gary R. Brock )
- ---------------------------------- )
Authorized Signatory ) c/s
)
/s/ Thomas Radigan )
- ---------------------------------- )
Authorized Signatory )
The common seal of )
CANACCORD CAPITAL CORPORATION )
was hereunto affixed in the )
presence of: )
)
/s/ (illegible) )
- ---------------------------------- )
Authorized Signatory ) c/s
)
/s/ (illegible) )
- ---------------------------------- )
Authorized Signatory )
<PAGE>
EXHIBIT 1.2
- --------------------------------------------------------------------------------
SPONSORSHIP AGREEMENT
- --------------------------------------------------------------------------------
THIS AGREEMENT dated April 29th, 1997 is made
BETWEEN
CANACCORD CAPITAL CORPORATION, a member of the Vancouver Stock
Exchange (the "Exchange"), of 2200 - 609 Granville Street, Vancouver,
British Columbia, V7Y 1H2
(the "Member");
AND
SYMPLEX COMMUNICATIONS CORPORATION, a company incorporated under the
law of Delaware, of 5 Research Drive, Ann Arbor, MI, 48103, USA
(the "Issuer").
WHEREAS:
A. The Issuer has not previously carried out a distribution of its
securities to the public, and intends to file an Initial Listing Application to
list its common shares (the "Shares") on the Vancouver Stock Exchange (the
"Exchange") (the "Transaction");
B. Pursuant to Exchange Listings Policy No. 4 as amended ("Policy No.
4"), the Exchange requires that the Issuer obtain a member to act as its sponsor
within the meaning of Policy No. 4 as a condition of approval of the
Transaction;
THE PARTIES to this Agreement therefore agree:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement:
<PAGE>
-2-
(a) "Approval Date" means the date the Shares are posted and called
for trading on the Exchange;
(b) "Business" means the corporate undertaking of the Issuer;
(c) "Control Block" means a holding of Shares or other securities of
the Issuer or both held by a person or combination of persons
acting jointly or in concert to which are attached more than 20%
of the voting rights attached to all outstanding Voting
Securities;
(d) "Issuer" has the meaning assigned above and includes any wholly-
owned or partially-owned subsidiaries of the Issuer;
(e) "Listing Date" means the date the Issuer's securities are listed,
posted and called for trading on the Exchange;
(f) "Member" has the meaning assigned above;
(g) "Proceeds" means the proceeds from the Public Offering, if any;
(h) "Public Offering" means the offering of the Issuer's securities
contemplated to be made by the Member as agent contemporaneously
with or after the closing of the Transaction, if any;
(i) "Quarterly Report" means a report concerning the Issuer required
by paragraph 145 of the Regulation to the Securities Act (British
Columbia);
(j) "Reports" means any business plans, engineering reports,
geological reports, technical reports, valuation opinions or
similar documents concerning the Business;
(k) "Transaction" has the meaning assigned in Recital A;
(l) "Voting Security" means a security of the Issuer that carries a
voting right under all circumstances.
<PAGE>
-3-
2. INVESTIGATION BY MEMBER
2.1 The Issuer shall at all times afford full access to the Member and its
authorized representatives to all properties, books, contracts, commitments and
other corporate records, and shall furnish the Member with copies thereof and
such other information concerning the Business as the Member may request, in
order that the Member may undertake an investigation of the Issuer and the
Business.
2.2 The Issuer shall forthwith provide the Member with:
(a) the most recent audited financial statements concerning the
Issuer, and unaudited financial statements, prepared as of a date
satisfactory to the Member;
(b) a draft Pre-Listing Application and Fact Sheet appropriate to the
Transaction in the form required by the Exchange, together with
all required Schedules;
(c) a draft disclosure document (Prospectus, Filing Statement or
Exchange Offering Prospectus) appropriate to the Transaction;
(d) fully completed and executed personal information forms in Form
4B to the Regulation to the Securities Act (British Columbia) for
all directors;
(e) questionnaires, in the form provided by the Member, completed in
full by each of its directors and each member of its senior
management;
(f) copies of all relevant material contracts.
2.3 Upon conclusion of its investigation, the Member shall give notice to
the Issuer whether it has decided to act as the Issuer's sponsor with regard to
the Transaction.
3. TERM
This Agreement shall be effective from the date hereof until:
(a) if the Member gives notice to the Issuer that it has decided not
to act as the Issuer's sponsor with regard to the Transaction,
the date such notice is
<PAGE>
-4-
given; or
(b) if the Member gives notice to the Issuer that it has decided to
act as the Issuer's sponsor with regard to the Transaction, the
close of business on that day falling one year from the Listing
Date;
unless it is terminated earlier by the Member in accordance herewith.
4. FEE
The Issuer will pay the Member a fee of Cdn. $15,000.00 (plus G.S.T.) in
consideration of the Member acting as the Issuer's sponsor with regard to the
Transaction, payable: 1) as to 50% upon execution of this agreement and 2) the
acceptance of the Company*s Application by the Vancouver Stock Exchange*s Pre-
Listing Advisory Committee. The Member's G.S.T. Number is 133567545.
5. COVENANTS OF THE ISSUER
5.1 If, during the term of this Agreement, a material change in the
assets, liabilities (contingent or otherwise), business, operations or capital
of the Issuer should occur, or be anticipated or threatened, the Issuer shall
notify the Member immediately, in writing, with full particulars of the change.
5.2 If the Issuer is not certain as to whether a material change has
occurred, the Issuer shall promptly notify the Member in writing of the full
particulars of the event giving rise to the uncertainty, and shall consult with
the Member as to whether such event constitutes a material change.
5.3 The Issuer shall provide the Member with copies of all Reports
forthwith upon preparation or receipt of same.
5.4 The Issuer shall notify the Member of:
(a) any change proposed to be made in the Business;
(b) any proposed issuance of a Control Block;
(c) any proposed sale or other disposition of any outstanding shares
in the
<PAGE>
-5-
capital of any subsidiaries wholly or partially owned by
the Issuer;
forthwith upon the proposal of such change, issuance, sale or disposition.
5.5 The Issuer shall notify the Member of any proposed change to the
constitution of the Board of Directors of the Issuer, or to the membership of
senior management of the Issuer, forthwith upon the proposal of such a change.
Forthwith after giving such notification, the Issuer shall provide the Member
with a questionnaire in the form provided by the Member, completed in full by
the proposed candidate. The Issuer shall promptly notify the Member, in writing
of any resignations, terminations or departures of members of the Board of
Directors or senior management.
5.6 The Member reserves its right to terminate this Agreement, resign as
Sponsor and to notify the Exchange of its decision to resign should it object to
any of the proposed changes set forth in Subsections 5.4 and 5.5.
5.7 The Issuer shall provide the Member with copies of all Quarterly
Reports, press releases, promotional materials, material change reports,
materials prepared in connection with the Issuer's annual general meeting and
any special meetings of shareholders, annual reports, and financial statements
prepared by or for the Issuer forthwith upon preparation or receipt of the same.
5.8 The Issuer shall notify the Member of any circumstances where the
Issuer does not expect to comply with a filing deadline imposed by regulatory
authorities. Such notification shall be provided at least 10 business days
before the deadline.
5.9 If the Issuer sells Shares or other securities to the public during
the Member's term as sponsor, then, commencing with the last day of the month in
which such sale closes, the Issuer will provide the Member with Quarterly
Sources and Uses of Funds statements within 15 days of each quarter's end. Such
statements will illustrate variances with the Use of Proceeds set out in the
Prospectus or Exchange Offering Prospectus prepared in connection with the sale
of Shares or other securities.
5.10 The Issuer shall at all times use its best efforts to assist the
Member in carrying out its duties as sponsor.
5.11 The Issuer acknowledges that it has appointed Thomas Radigan as its
officer
<PAGE>
-6-
responsible for carrying out its reporting obligations to the Member
hereunder, and agrees that the Member may direct and address all inquiries and
submit all notices hereunder to the attention of Thomas Radigan.
5.12 Nothing in this Agreement is or shall be construed as a fetter on the
discretion of the directors of the Issuer.
6. ACKNOWLEDGMENTS OF ISSUER
6.1 The Issuer acknowledges that the Member has informed the Issuer and
its directors and management of their responsibilities concerning continuous and
timely disclosure under the Securities Act (British Columbia), and in
particular, without limitation, of the Issuer's responsibility to issue a press
release, and file a material change report, in the event of a material change,
as that term is defined in the Securities Act (British Columbia), in the
business, operations, assets or ownership of the Issuer. The Issuer further
acknowledges in this regard that it has been made aware by the Member of the
services offered by commercial news disseminators.
6.2 The Issuer acknowledges that the Member has advised the Issuer
concerning the Exchange's on-going requirements concerning the minimum
distribution of the Shares.
7. REPRESENTATIONS, WARRANTIES AND
INDEMNIFICATIONS OF THE ISSUER
7.1 The Issuer warrants and represents to the Member, and acknowledges
that the Member has relied on such warranties and representations in entering
into this Agreement, that:
(a) the responses in all questionnaires completed by the directors
and senior management personnel of the Issuer and provided to the
Member pursuant to this Agreement shall be accurate and complete;
(b) the descriptions of the assets and the liabilities of the Issuer
set out in the balance sheets of the Issuer, including the notes
thereto, to be provided to the Member will be true and correct,
will accurately and fairly present the financial position and
condition of the Issuer as at the respective dates thereof, will
reflect all liabilities (absolute, accrued, contingent or
otherwise) of the Issuer at the respective dates thereof and will
be prepared in accordance with generally accepted accounting
principles, applied on a
<PAGE>
-7-
consistent basis;
(c) the statement of earnings, retained earnings and changes in
financial position of the Issuer, including the notes thereto, to
be provided to the Member will in each case accurately and fairly
present the results of the operations of the Issuer for the
respective periods covered thereby and will be prepared in
accordance with generally accepted accounting principles applied
on a consistent basis throughout such period;
(d) the financial position of the Issuer as at the date hereof is no
less favourable than that disclosed in the latest balance sheets
provided to the Member;
(e) the information concerning the Business which will be provided to
the authors of the Reports will be accurate, complete and fair,
and the Reports, to the best of the knowledge of the Issuer, will
be fair and accurate in all particulars;
(f) the information contained in the Sources and Uses of Funds
statements to be provided to the Member hereunder will be
accurate and complete;
(g) the execution of this Agreement by the Issuer does not and will
not conflict with, and does not and will not result in a breach
of, or constitute a default under, any agreement or instrument to
which the Issuer is a party, or by which the Issuer is bound, or
the terms of the incorporating documents of the Issuer;
(h) the execution of this Agreement has been authorized by all
necessary corporate action on the part of the Issuer;
(i) as of the date hereof:
(i) there has not been any material change in the assets,
liabilities or obligations (absolute, accrued, contingent or
otherwise) of the Issuer;
(ii) there has not been any material change in the capital or
long-term debt of the Issuer;
<PAGE>
-8-
(iii) there has not been any material change in the Business,
business prospects, condition (financial or otherwise) or
results of the operation of the Issuer from those
disclosed in the most recent [consolidated] financial
statements provided to the Member of which the Member has
not been made aware by the Issuer;
(j) since the date of the most recent financial statements provided
to the Member, the Issuer has carried on the Business in the
ordinary course;
(k) the Issuer is duly registered and licensed to carry on business
in the jurisdictions which it carries on business or owns
property;
(l) no order suspending the sale of or ceasing the trading in the
Shares or other securities of the Issuer has been issued and not
rescinded, revoked or withdrawn by any securities commission,
regulatory authority or stock exchange in any jurisdiction, and
no proceedings for that purpose have been instituted or are
pending or are, to the knowledge of the directors or senior
management of the Issuer, contemplated or threatened by any
securities commission, regulatory authority or stock exchange;
(m) no enquiry or investigation, formal or informal, in relation to
the Issuer or the Issuer's directors or senior management, has
been commenced or threatened by any official or officer of any
securities commission, regulatory authority or stock exchange;
7.2 The representations and warranties of the Issuer set forth in
Subsections 7.1 hereof shall continue to be true and accurate throughout the
term of this Agreement.
7.3 The Issuer shall indemnify and save harmless the Member, and each
director, officer, employee or agent of the Member, from and against all losses,
claims, damages, liabilities, costs or expenses caused or incurred by the Member
or any of its directors, officers, employees or agents, arising or resulting
from any breach by the Issuer of any of the terms of this Agreement.
7.4 If any action or claim is brought against the Member in respect of
which indemnity may be sought from the Issuer pursuant to this Agreement, the
Member will promptly notify the
<PAGE>
-9-
Issuer in writing.
7.5 The Issuer will assume the defence of the action or claim, including
the employment of counsel and the payment of all expenses.
7.6 The Member will have the right to employ separate counsel, and the
Issuer will pay the fees and expenses of such counsel.
7.7 The indemnity provided for in this Section will not be limited or
otherwise affected by any other indemnity obtained by the Member from any other
person in respect of any matters specified in this Agreement and will continue
in full force and effect until all possible liability of the Member arising out
of this Agreement has been extinguished by the operation of law.
8. TERMINATION
8.1 The Member may terminate this Agreement in any of the following
events:
(a) if a material adverse change (actual, anticipated or threatened)
in the assets, liabilities (contingent or otherwise), business
operations or capital of the Issuer should occur;
(b) if any order is made suspending trading in the Shares on the
Exchange, or any order to cease or suspend trading in the Shares
is made pursuant to any of the Canadian Securities Acts or is
made by any other regulatory authority, and is not rescinded,
revoked or withdrawn within 30 days of the making thereof;
(c) if any enquiry or investigation (whether formal or informal) in
relation to the Issuer or the Issuer's directors or senior
management, is commenced or threatened by an officer or official
of any securities regulatory authority in Canada or by any
officer or official of any other competent authority;
(d) if the Issuer shall at any time be in breach of any of the terms
of this Agreement;
(e) if the Issuer determines to take a course of action referred to
in Subsections 5.4 or 5.5 to which the Member has notified the
Issuer in
<PAGE>
-10-
writing it objects;
(f) if the Member determines that any representation or warranty made
by the Issuer in this Agreement is false or has become false.
8.2 Any termination by the Member hereunder shall be made by notice in
writing to the Issuer. Notwithstanding the giving of any notice of termination
hereunder, the expenses and fees agreed to be paid by the Issuer incurred up to
the time of the giving of such notice shall be paid by the Issuer as herein
provided.
8.3 The Issuer acknowledges and agrees that, if the Member terminates this
Agreement, the Member shall comply with all applicable provisions of Policy No.
4 relating to termination of sponsorship, including the filing of a letter
explaining the termination with the Exchange. In such event, the Member may
disclose to the Exchange such information concerning the Issuer as the Member in
its sole discretion considers to be necessary to fulfill its obligations to the
Exchange and the requirements of Policy No. 4, including any information which
the Issuer has disclosed to the Member on a privileged or confidential basis.
8.4 The rights of the Member to terminate this Agreement are in addition
to such other remedies as it may have in respect of any default,
misrepresentation, act or failure of the Issuer in respect of any of the matters
contemplated by this Agreement.
8.5 The Issuer may terminate this Agreement upon giving 30 days written
notice to the Member.
9. EXPENSES OF MEMBER
9.1 The Issuer will pay all of the expenses of the Member reasonably
incurred by the Member in connection herewith, including, without limitation,
the fees and expenses of any solicitors which might be retained by the Member in
connection herewith and not to exceed Cdn. $2,500.00.
9.2 The Member may, from time to time, render accounts for such expenses
to the Issuer for payment on or before the dates set out in such accounts.
9.3 The Issuer's covenant to pay the Member's expenses shall survive
termination of this Agreement.
<PAGE>
-11-
10. NOTICE
10.1 Any notice under this Agreement will be given in writing and must be
delivered, sent by telex, telegram or telecopier or mailed by prepaid post and
addressed to the party to which notice is to be given at the address indicated
above, or at another address designated by such party in writing.
10.2 If notice is sent by telex, telegram or telecopier or is delivered, it
will be deemed to have been given at the time of transmission or delivery.
10.3 If notice is mailed, it will be deemed to have been received 48 hours
following the date of mailing of the notice.
10.4 If there is an interruption in normal mail service due to strike,
labour unrest or other cause at or prior to or within 48 hours of the time a
notice is mailed the notice will be sent by telex, telegram or telecopier or
will be delivered.
11. TIME
Time is of the essence of this Agreement and will be calculated in accordance
with the provisions of the Interpretation Act (British Columbia).
12. LANGUAGE
Wherever a singular or masculine expression is used in this Agreement, that
expression is deemed to include the plural, feminine or the body corporate where
required by the context.
13. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and cancels and supersedes any prior
understandings and agreements between the parties hereto with respect thereto.
14. COUNTERPARTS
This Agreement may be executed in two or more counterparts and may be delivered
by telecopier. Each executed counterpart will be deemed to be an original, and
all of them will constitute one agreement, effective as of the reference date
given above.
<PAGE>
-12-
15. HEADINGS
The headings in this Agreement are for convenience of reference only and do not
affect the interpretation of this Agreement.
16. ENUREMENT
This Agreement enures to the benefit of and is binding on the parties to this
Agreement and their successors.
The common seal of )
CANACCORD CAPITAL )
CORPORATION was hereunto )
affixed in the presence of: )
)
/s/ (illegible) )
_____________________________ )
Authorized Signatory ) c/s
)
/s/ (illegible) )
_____________________________ )
Authorized Signatory )
The common seal of )
SYMPLEX COMMUNICATIONS CORPORATION )
was hereunto affixed in the )
presence of: )
)
/s/ Gary R. Brock )
_____________________________ )
Authorized Signatory ) c/s
)
/s/ Thomas Radigan )
_____________________________ )
Authorized Signatory )
<PAGE>
EXHIBIT 4.2
THIS WARRANT IS NOT TRANSFERABLE AND WILL BE VOID AND OF NO VALUE UNLESS
EXERCISED WITHIN THE LIMITS HEREIN PROVIDED
THIS WARRANT AND THE SECURITIES UNDERLYING THIS WARRANT HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD, PLEDGED OR HYPOTHECATED UNLESS THE REGISTRATION
PROVISIONS OF SUCH ACT HAVE BEEN COMPLIED WITH OR UNLESS THE COMPANY RECEIVES AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO IT THAT THE PROPOSED TRANSACTION
WILL NOT VIOLATE FEDERAL OR STATE SECURITIES LAWS.
SYMPLEX
COMMUNICATIONS CORPORATION
(Incorporated Under the Laws of the State of Delaware)
WARRANT FOR THE PURCHASE OF [AMOUNT] COMMON SHARES
THIS IS TO CERTIFY THAT, for value received, [NAME] (the "Holder") is entitled
to subscribe for and purchase [AMOUNT] fully paid and non-assessable shares of
Common Stock (the "Shares") in the capital of Symplex Communications Corporation
(the "Corporation") at a purchase price per Share of US$1.00 (the "Exercise
Price"). This Warrant is exercisable at any time up to 4:30 P.M. Vancouver time
on January 26, 1999 (the "Date of Expiry"), subject, however, to the provisions
and upon the terms and conditions hereinafter set forth.
The rights represented by this Warrant may be exercised by the Holder hereof, in
whole or in part (but not as to a fractional Share), by surrender of this
Warrant at the office of the Corporation's Transfer Agent, Pacific Corporate
Trust Company, 830 - 625 Howe Street, Vancouver, British Columbia, V6C 3B8
during its normal business hours, together with the subscription form attached
hereto completed and signed by the Holder and a certified cheque payable to or
to the order of the Corporation in payment of the Exercise Price for the number
of Shares subscribed. Upon the exercise of the rights represented by this
Warrant and payment of the Exercise Price in accordance with the terms hereof,
the Shares for which the Holder has subscribed and purchased shall be deemed to
have been issued and the Holder shall be deemed to have become the holder of
record of such shares on the date of such exercise and payment.
In the event of any exercise of the rights represented by this Warrant,
certificates for the Shares so purchased shall be delivered to the Holder hereof
within a reasonable time, not exceeding ten days after the rights represented by
this Warrant have been duly exercised and, unless this Warrant has expired, a
new Warrant representing the number of Shares, if any, with respect to which
this Warrant shall not then have been exercised shall also be issued to the
Holder hereof within such time.
Upon receipt of evidence satisfactory to the Corporation of the loss, theft,
destruction or mutilation of this Warrant and, if requested by the Corporation,
upon delivery of a bond of indemnity satisfactory to the Corporation (or, in the
case of mutilation, upon surrender of this Warrant), the Corporation will issue
to the Agent a replacement Warrant containing the same terms and conditions as
this Warrant.
The Corporation covenants and agrees that the Shares which may be issued upon
the exercise of the
<PAGE>
-2-
rights represented by this Warrant will, upon issuance, be fully paid and non-
assessable and free of all liens, charges and encumbrances. The Corporation
further covenants and agrees that during the period within which the rights
represented by this Warrant may be exercised, the Corporation will at all times
have authorized and reserved, a sufficient number of common shares to provide
for the exercise of the rights represented by this Warrant.
THE FOLLOWING ARE THE TERMS AND CONDITIONS REFERRED
TO IN THIS WARRANT
1. Upon the occurrence of one or more events involving the capital
reorganization, reclassification, subdivision or consolidation of the
capital stock of the Corporation, or of the merger, amalgamation or other
corporate combination of the Corporation with one or more other entities,
or of any other events in which new securities of any nature are delivered
in exchange for the issued Shares and such issued Shares are cancelled
(which events are collectively referred to herein as "Fundamental
Changes"), then at the time of any exercise of the Warrants taking place
after such Fundamental Changes, and in lieu of issuing the Shares which,
but for such Fundamental Changes and this provision, would have been issued
upon such exercise, the Corporation or its successor shall issue instead
such number of new securities as would have been delivered as a result of
the Fundamental Changes in exchange for those Shares which the holder would
have been entitled to receive upon such exercise if such exercise had
occurred prior to the occurrence of the Fundamental Changes. The
Corporation shall not effect any Fundamental Changes which result in the
succession of the Corporation unless prior to or simultaneously with the
consummation thereof the entity succeeding the Corporation acknowledges in
writing that it is bound by and will comply with this provision. The
Company shall notify the Holder of any Fundamental Change by giving written
notice of the proposed Fundamental Change to the Holder at least 10 days
prior to the record date or effective date of such change. If any question
arises with respect to the adjustment provided in this paragraph 1, such
question shall be conclusively determined by the auditor for the Company.
2. In case at any time:
(a) the Corporation shall pay any dividend payable in stock upon its
common shares or make any distribution to the holders of its common
shares;
(b) the Corporation shall offer for subscription pro rata to the holders
of its common shares any additional shares of stock of any class or
other rights; or
(c) there shall be a voluntary or involuntary dissolution, liquidation or
winding-up of the Corporation;
then, and in any one or more of such cases, the Corporation shall give to
the Holder of this Warrant at least seven days' prior written notice of the
date on which the books of the Corporation shall close or a record shall be
taken for such dividend or distribution, or subscription rights, or
dissolution, liquidation or winding-up. Each such written notice shall be
given by first class mail, registered postage prepaid, addressed to the
Holder of this Warrant at the address of such Holder, as shown on the books
of the Corporation.
3. This Warrant shall not entitle the Holder hereof to any rights as a
shareholder of the Corporation, including without limitation, voting
rights, except that the Company shall concurrently furnish to the Holder a
copy of all notices which are furnished to holders of the
<PAGE>
-3-
common shares.
4. This Warrant and all rights hereunder are not transferable.
5. This Warrant is exchangeable upon its surrender by the Holder at the office
of the Corporation's Transfer Agent at the address set out herein for new
Warrants of like tenor representing in the aggregate the right to subscribe
for and purchase the number of shares which may be subscribed for and
purchased hereunder, each of such new Warrants to represent the right to
subscribe for and purchase such number of Shares as shall be designated by
the Holder at the time of such surrender.
6. Any notice or other communication required to be given by the Corporation
under this Warrant shall be delivered or telecopied to [ADDRESS].
7. Time is of the essence hereof.
8. This Warrant shall be governed by and construed in accordance with the laws
of the Province of British Columbia, Canada.
SYMPLEX COMMUNICATIONS CORPORATION, intending to be contractually bound, has
caused this Warrant to be signed by its duly authorized officer, and this
Warrant to be dated ________________________, 1998.
SYMPLEX COMMUNICATIONS CORPORATION
c/s
By:_____________________________________
Gary R. Brock, President
<PAGE>
SUBSCRIPTION FORM
-----------------
TO: PACIFIC CORPORATE TRUST COMPANY
830 - 625 Howe Street,
Vancouver, British Columbia, V6C 3B8
Attention: Corporate Services Department
-----------------------------
____________________________, the holder of the within Non-Transferable Share
Purchase Warrant, subscribes for _______________ of the common shares referred
to in the said Non-Transferable Share Purchase Warrant according to the
conditions thereof, and herewith makes payment of the purchase price in full for
the said number of shares at the rate of US$_______ per share. A certified
cheque or bank draft in the amount of US$________________ is enclosed herewith
for such payment.
The undersigned hereby directs that the shares hereby subscribed for be issued
and delivered as follows:
NAME ADDRESS
- --------------------------------- -----------------------------------------
- --------------------------------- -----------------------------------------
- --------------------------------- -----------------------------------------
- --------------------------------- -----------------------------------------
- --------------------------------- -----------------------------------------
DATED at ____________________ this _____ day of ____________________, 19_____.
-----------------------------------------
(Signature of Holder)
<PAGE>
EXHIBIT 4.3
THIS WARRANT IS NOT TRANSFERABLE AND WILL BE VOID AND OF NO VALUE UNLESS
EXERCISED WITHIN THE LIMITS HEREIN PROVIDED
THIS WARRANT AND THE SECURITIES UNDERLYING THIS WARRANT HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD, PLEDGED OR HYPOTHECATED UNLESS THE REGISTRATION
PROVISIONS OF SUCH ACT HAVE BEEN COMPLIED WITH OR UNLESS THE COMPANY RECEIVES AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO IT THAT THE PROPOSED TRANSACTION
WILL NOT VIOLATE FEDERAL OR STATE SECURITIES LAWS.
SYMPLEX
COMMUNICATIONS CORPORATION
(Incorporated Under the Laws of the State of Delaware)
WARRANT FOR THE PURCHASE OF 400,000 COMMON SHARES
THIS IS TO CERTIFY THAT, for value received, [UNDERWRITER] (the "Holder") is
entitled to subscribe for and purchase 400,000 fully paid and non-assessable
shares of Common Stock (the "Shares") in the capital of Symplex Communications
Corporation (the "Corporation") at a purchase price per Share of US$1.00 (the
"Exercise Price"). This Warrant is exercisable at any time up to 4:30 P.M.
Vancouver time on February 11, 1999 (the "Date of Expiry"), subject, however, to
the provisions and upon the terms and conditions hereinafter set forth.
The rights represented by this Warrant may be exercised by the Holder hereof, in
whole or in part (but not as to a fractional Share), by surrender of this
Warrant at the office of the Corporation's Transfer Agent, Pacific Corporate
Trust Company, 830 - 625 Howe Street, Vancouver, British Columbia, V6C 3B8
during its normal business hours, together with the subscription form attached
hereto completed and signed by the Holder and a certified cheque payable to or
to the order of the Corporation in payment of the Exercise Price for the number
of Shares subscribed. Upon the exercise of the rights represented by this
Warrant and payment of the Exercise Price in accordance with the terms hereof,
the Shares for which the Holder has subscribed and purchased shall be deemed to
have been issued and the Holder shall be deemed to have become the holder of
record of such shares on the date of such exercise and payment.
In the event of any exercise of the rights represented by this Warrant,
certificates for the Shares so purchased shall be delivered to the Holder hereof
within a reasonable time, not exceeding ten days after the rights represented by
this Warrant have been duly exercised and, unless this Warrant has expired, a
new Warrant representing the number of Shares, if any, with respect to which
this Warrant shall not then have been exercised shall also be issued to the
Holder hereof within such time.
Upon receipt of evidence satisfactory to the Corporation of the loss, theft,
destruction or mutilation of this Warrant and, if requested by the Corporation,
upon delivery of a bond of indemnity
<PAGE>
-2-
satisfactory to the Corporation (or, in the case of mutilation, upon
surrender of this Warrant), the Corporation will issue to the Agent a
replacement Warrant containing the same terms and conditions as this Warrant.
The Corporation covenants and agrees that the Shares which may be issued upon
the exercise of the rights represented by this Warrant will, upon issuance, be
fully paid and non-assessable and free of all liens, charges and encumbrances.
The Corporation further covenants and agrees that during the period within which
the rights represented by this Warrant may be exercised, the Corporation will at
all times have authorized and reserved, a sufficient number of common shares to
provide for the exercise of the rights represented by this Warrant.
THE FOLLOWING ARE THE TERMS AND CONDITIONS REFERRED
TO IN THIS WARRANT
1. Upon the occurrence of one or more events involving the capital
reorganization, reclassification, subdivision or consolidation of the
capital stock of the Corporation, or of the merger, amalgamation or other
corporate combination of the Corporation with one or more other entities,
or of any other events in which new securities of any nature are delivered
in exchange for the issued Shares and such issued Shares are cancelled
(which events are collectively referred to herein as "Fundamental
Changes"), then at the time of any exercise of the Warrants taking place
after such Fundamental Changes, and in lieu of issuing the Shares which,
but for such Fundamental Changes and this provision, would have been issued
upon such exercise, the Corporation or its successor shall issue instead
such number of new securities as would have been delivered as a result of
the Fundamental Changes in exchange for those Shares which the holder would
have been entitled to receive upon such exercise if such exercise had
occurred prior to the occurrence of the Fundamental Changes. The
Corporation shall not effect any Fundamental Changes which result in the
succession of the Corporation unless prior to or simultaneously with the
consummation thereof the entity succeeding the Corporation acknowledges in
writing that it is bound by and will comply with this provision. The
Company shall notify the Holder of any Fundamental Change by giving written
notice of the proposed Fundamental Change to the Holder at least 10 days
prior to the record date or effective date of such change. If any question
arises with respect to the adjustment provided in this paragraph 1, such
question shall be conclusively determined by the auditor for the Company.
2. In case at any time:
(a) the Corporation shall pay any dividend payable in stock upon its
common shares or make any distribution to the holders of its common
shares;
(b) the Corporation shall offer for subscription pro rata to the holders
of its common shares any additional shares of stock of any class or
other rights; or
(c) there shall be a voluntary or involuntary dissolution, liquidation or
winding-up of the Corporation;
then, and in any one or more of such cases, the Corporation shall give to
the Holder of this
<PAGE>
-3-
Warrant at least seven days' prior written notice of the date on which the
books of the Corporation shall close or a record shall be taken for such
dividend or distribution, or subscription rights, or dissolution,
liquidation or winding-up. Each such written notice shall be given by first
class mail, registered postage prepaid, addressed to the Holder of this
Warrant at the address of such Holder, as shown on the books of the
Corporation.
3. This Warrant shall not entitle the Holder hereof to any rights as a
shareholder of the Corporation, including without limitation, voting
rights, except that the Company shall concurrently furnish to the Holder a
copy of all notices which are furnished to holders of the common shares.
4. This Warrant and all rights hereunder are not transferable.
5. This Warrant is exchangeable upon its surrender by the Holder at the office
of the Corporation's Transfer Agent at the address set out herein for new
Warrants of like tenor representing in the aggregate the right to subscribe
for and purchase the number of shares which may be subscribed for and
purchased hereunder, each of such new Warrants to represent the right to
subscribe for and purchase such number of Shares as shall be designated by
the Holder at the time of such surrender.
6. Any notice or other communication required to be given by the Corporation
under this Warrant shall be delivered or telecopied to [UNDERWRITER'S NAME
AND ADDRESS].
7. Time is of the essence hereof.
8. This Warrant shall be governed by and construed in accordance with the laws
of the Province of British Columbia, Canada.
SYMPLEX COMMUNICATIONS CORPORATION, intending to be contractually bound, has
caused this Warrant to be signed by its duly authorized officer, and this
Warrant to be dated ________________________, 1998.
SYMPLEX COMMUNICATIONS CORPORATION
c/s
By:
__________________________________________________
Gary R. Brock, President
<PAGE>
SUBSCRIPTION FORM
-----------------
TO: PACIFIC CORPORATE TRUST COMPANY
830 - 625 Howe Street,
Vancouver, British Columbia, V6C 3B8
Attention: Corporate Services Department
-----------------------------
____________________________, the holder of the within Non-Transferable Share
Purchase Warrant, subscribes for _______________ of the common shares referred
to in the said Non-Transferable Share Purchase Warrant according to the
conditions thereof, and herewith makes payment of the purchase price in full for
the said number of shares at the rate of US$_______ per share. A certified
cheque or bank draft in the amount of US$________________ is enclosed herewith
for such payment.
The undersigned hereby directs that the shares hereby subscribed for be issued
and delivered as follows:
NAME ADDRESS
- ------------------------------------- ----------------------------------------
- ------------------------------------- ----------------------------------------
- ------------------------------------- ----------------------------------------
- ------------------------------------- ----------------------------------------
- ------------------------------------- ----------------------------------------
DATED at ____________________ this _____ day of ____________________, 19_____.
----------------------------------------
(Signature of Holder)
<PAGE>
EXHIBIT 4.4
THIS WARRANT IS NOT TRANSFERABLE AND WILL BE VOID AND OF NO VALUE UNLESS
EXERCISED WITHIN THE LIMITS HEREIN PROVIDED
THIS WARRANT AND THE SECURITIES UNDERLYING THIS WARRANT HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD, PLEDGED OR HYPOTHECATED UNLESS THE REGISTRATION
PROVISIONS OF SUCH ACT HAVE BEEN COMPLIED WITH OR UNLESS THE COMPANY RECEIVES AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO IT THAT THE PROPOSED TRANSACTION
WILL NOT VIOLATE FEDERAL OR STATE SECURITIES LAWS.
SYMPLEX
COMMUNICATIONS CORPORATION
(Incorporated Under the Laws of the State of Delaware)
WARRANT FOR THE PURCHASE OF 233,333 COMMON SHARES
THIS IS TO CERTIFY THAT, for value received, Opus Capitol, LLP (the "Holder") is
entitled to subscribe for and purchase 233,333 fully paid and non-assessable
shares of Common Stock (the "Shares") in the capital of Symplex Communications
Corporation (the "Corporation"):
(i) at a purchase price of US$1.00 per Share (the "First Exercise Price") if
exercised at any time up to 4:30 P.M. Vancouver time on February 11, 1999
and, thereafter,
(ii) at a purchase price of US$1.15 per Share (the "Second Exercise Price") if
exercised at any time up to 4:30 P.M. Vancouver time on February 11, 2000,
whereupon this Warrant will expire (the "Date of Expiry") and be of no further
force and effect, subject, however, to the provisions and upon the terms and
conditions hereinafter set forth.
The rights represented by this Warrant may be exercised by the Holder hereof, in
whole or in part (but not as to a fractional Share), by surrender of this
Warrant at the office of the Corporation's Transfer Agent, Pacific Corporate
Trust Company, 830 - 625 Howe Street, Vancouver, British Columbia, V6C 3B8
during its normal business hours, together with the subscription form attached
hereto completed and signed by the Holder and a certified cheque payable to or
to the order of the Corporation in payment of the First Exercise Price or Second
Exercise Price, as the case may be, for the number of Shares subscribed. Upon
the exercise of the rights represented by this Warrant and payment of the First
Exercise Price or Second Exercise Price, as the case may be, in accordance with
the terms hereof, the Shares for which the Holder has subscribed and purchased
shall be deemed to have been issued and the Holder shall be deemed to have
become the holder of record of such shares on the date of such exercise and
payment.
In the event of any exercise of the rights represented by this Warrant,
certificates for the Shares so purchased shall be delivered to the Holder hereof
within a reasonable time, not exceeding ten days after the rights represented by
this Warrant have been duly exercised and, unless this Warrant has expired, a
new Warrant representing the number of Shares, if any, with respect to which
this Warrant shall not then have been exercised shall also be issued to the
Holder hereof within such time.
<PAGE>
-2-
Upon receipt of evidence satisfactory to the Corporation of the loss, theft,
destruction or mutilation of this Warrant and, if requested by the Corporation,
upon delivery of a bond of indemnity satisfactory to the Corporation (or, in the
case of mutilation, upon surrender of this Warrant), the Corporation will issue
to the Agent a replacement Warrant containing the same terms and conditions as
this Warrant.
The Corporation covenants and agrees that the Shares which may be issued upon
the exercise of the rights represented by this Warrant will, upon issuance, be
fully paid and non-assessable and free of all liens, charges and encumbrances.
The Corporation further covenants and agrees that during the period within which
the rights represented by this Warrant may be exercised, the Corporation will at
all times have authorized and reserved, a sufficient number of common shares to
provide for the exercise of the rights represented by this Warrant.
THE FOLLOWING ARE THE TERMS AND CONDITIONS REFERRED TO IN THIS WARRANT
1. Upon the occurrence of one or more events involving the capital
reorganization, reclassification, subdivision or consolidation of the
capital stock of the Corporation, or of the merger, amalgamation or other
corporate combination of the Corporation with one or more other entities,
or of any other events in which new securities of any nature are delivered
in exchange for the issued Shares and such issued Shares are cancelled
(which events are collectively referred to herein as "Fundamental
Changes"), then at the time of any exercise of the Warrants taking place
after such Fundamental Changes, and in lieu of issuing the Shares which,
but for such Fundamental Changes and this provision, would have been issued
upon such exercise, the Corporation or its successor shall issue instead
such number of new securities as would have been delivered as a result of
the Fundamental Changes in exchange for those Shares which the holder would
have been entitled to receive upon such exercise if such exercise had
occurred prior to the occurrence of the Fundamental Changes. The
Corporation shall not effect any Fundamental Changes which result in the
succession of the Corporation unless prior to or simultaneously with the
consummation thereof the entity succeeding the Corporation acknowledges in
writing that it is bound by and will comply with this provision. The
Company shall notify the Holder of any Fundamental Change by giving written
notice of the proposed Fundamental Change to the Holder at least 10 days
prior to the record date or effective date of such change. If any question
arises with respect to the adjustment provided in this paragraph 1, such
question shall be conclusively determined by the auditor for the Company.
2. In case at any time:
(a) the Corporation shall pay any dividend payable in stock upon its
common shares or make any distribution to the holders of its common
shares;
(b) the Corporation shall offer for subscription pro rata to the holders
of its common shares any additional shares of stock of any class or
other rights; or
(c) there shall be a voluntary or involuntary dissolution, liquidation or
winding-up of the Corporation;
then, and in any one or more of such cases, the Corporation shall give to
the Holder of this Warrant at least seven days' prior written notice of the
date on which the books of the Corporation shall close or a record shall be
taken for such dividend or distribution, or subscription rights, or
dissolution, liquidation or winding-up. Each such written notice shall be
given by first class mail, registered postage prepaid, addressed to the
Holder of this Warrant at the address of such Holder, as shown on the books
of the Corporation.
<PAGE>
-3-
3. This Warrant shall not entitle the Holder hereof to any rights as a
shareholder of the Corporation, including without limitation, voting
rights, except that the Company shall concurrently furnish to the Holder a
copy of all notices which are furnished to holders of the common shares.
4. This Warrant and all rights hereunder are not transferable.
5. This Warrant is exchangeable upon its surrender by the Holder at the office
of the Corporation's Transfer Agent at the address set out herein for new
Warrants of like tenor representing in the aggregate the right to subscribe
for and purchase the number of shares which may be subscribed for and
purchased hereunder, each of such new Warrants to represent the right to
subscribe for and purchase such number of Shares as shall be designated by
the Holder at the time of such surrender.
6. Any notice or other communication required to be given by the Corporation
under this Warrant shall be delivered or telecopied to 1113 Spruce Street,
Boulder, Colorado, 80302.
7. Time is of the essence hereof.
8. This Warrant shall be governed by and construed in accordance with the laws
of the Province of British Columbia, Canada.
SYMPLEX COMMUNICATIONS CORPORATION, intending to be contractually bound, has
caused this Warrant to be signed by its duly authorized officer, and this
Warrant to be dated ________________________, 1998.
SYMPLEX COMMUNICATIONS CORPORATION
c/s
By:_______________________________
Gary R. Brock, President
<PAGE>
SUBSCRIPTION FORM
-----------------
TO: PACIFIC CORPORATE TRUST COMPANY
830 - 625 Howe Street,
Vancouver, British Columbia, V6C 3B8
Attention: Corporate Services Department
-----------------------------
____________________________, the holder of the within Non-Transferable Share
Purchase Warrant, subscribes for _______________ of the common shares referred
to in the said Non-Transferable Share Purchase Warrant according to the
conditions thereof, and herewith makes payment of the purchase price in full for
the said number of shares at the rate of US$_______ per share. A certified
cheque or bank draft in the amount of US$________________ is enclosed herewith
for such payment.
The undersigned hereby directs that the shares hereby subscribed for be issued
and delivered as follows:
NAME ADDRESS
- -------------------------------------- -------------------------------------
- -------------------------------------- -------------------------------------
- -------------------------------------- -------------------------------------
- -------------------------------------- -------------------------------------
- -------------------------------------- -------------------------------------
DATED at ____________________ this _____ day of ____________________, 19_____.
-------------------------------------
(Signature of Holder)
