35 new brunswick section 150 of the securities act

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Unformatted text preview: t the seller, in which case he will have no right of action for damages against the seller, directors of the seller or any person who has signed this Memorandum provided that: (a) in an action for rescission or damages, the issuer will not be liable if it proves that the purchaser purchased the Units with knowledge of the misrepresentation; (b) in an action for damages, the issuer is not liable for all or any portion of such damages that it proves do not represent the depreciation in value of the Units as a result of the misrepresentation relied upon; and (c) in no case will the amount recoverable under Section 138 of the Securities Act (Nova Scotia) exceed the price at which the Units were sold to the purchaser. The right of action for rescission or damages described herein is in addition to and without derogation from any other right the purchaser may have at law. Pursuant to section 146 of the Securities Act (Nova Scotia), no action conferred by section 138 may be commenced to enforce the foregoing right of action or rescission more than 120 days after the date on which payment was made for the Units or after the date on which the initial payment for the Units was made where payments subsequent to the initial payment are made pursuant to a contractual commitment assumed prior to, or concurrently with, the initial payment. - 35 - New Brunswick Section 150 of the Securities Act (New Brunswick) provides that where this Memorandum contains a misrepresentation, a purchaser who purchases the Units offered under this Memorandum shall be deemed to have relied on the misrepresentation, if it was a misrepresentation at the time of purchase, and the purchaser has either a right of action for damages against the issuer and a selling security holder on whose behalf the distribution is made, or, where the purchaser purchased the Units from a person referred to in the previous clause, the purchaser may elect to exercise a right of rescission against the person, in which case the purchaser shall have no right of action for damages against the person. The Partnership will not be liable if it proves the purchaser purchased Units with a knowledge of the misrepresentation. The Partnership will not be liable for all or any portion of damages that it proves do not represent the depreciation in value of the Units as a result of the misrepresentation relied upon. In no case will the amount recoverable exceed the price at which the Units were offered. In addition, section 152 of the Securities Act (New Brunswick) provides that where an individual makes a verbal statement to a prospective purchaser that contains a misrepresentation, relating to the Units purchased and the verbal statement is made either before or contemporaneously with the purchase of the Units, the purchaser is deemed to have relied on the misrepresentation, if it was a misrepresentation at the time of purchase, and has a right of action for damages against the individual who made the verbal statement. The right of action for rescission or damages described herein is in addition to and without derogation from any other right the purchaser may have at law. No action will be commenced to enforce these rights more than: (a) In the case of an action for rescission, 180 days from the day of the transaction that gave rise to the cause of action; or (b) In the case of an action for damages, the earlier of: (i) (ii) one year after the purchaser first had knowledge of the facts giving rise to the cause of action; and six years after the day of the transaction that gave rise to the cause of action. Prince Edward Island Section 112 of the Securities Act (Prince Edward Island) provides that where this Memorandum, or any document incorporated or deemed to be incorporated by reference into this Memorandum, contains a misrepresentation, a purchaser who purchases Units offered under this Memorandum during the period of distribution has, without regard to whether the purchaser relied on the misrepresentation and if it was a misrepresentation at the time of purchase, a right of action for damages against the issuer, and subject to certain defenses, every director of the issuer at the date of this Memorandum and every person or company who signed this Memorandum, or a right of rescission against the issuer. If the purchaser chooses to exercise a right of rescission against the issuer, the purchaser has no right of action for damages as described above. The Partnership will not be liable if it proves the purchaser purchased Units with knowledge of the misrepresentation. Neither the Partnership nor any other person shall be liable to a purchaser with respect to a misrepresentation in forward-looking information if the Memorandum contains a cautionary statement relating to forward-looking information, sets out the material factors and/or assumptions from which such forwardlooking information was drawn and the basis for such conclusions or forecasts was reasonable. The Partnership will not be liable for all or any portion of damages that it proves do not represent the depreciation in value of the Units as a result of the misrepresentation relied upon. In no case will the amount recoverable exceed the price at which the Units were offered. - 36 - The right of action for rescission or damages described herein is in addition to and without derogation from any other right the purchaser may have at law. No action will be commenced to enforce these rights more than: (a) In the case of an action for rescission, 180 days from the day of the transaction that gave rise to the cause of action; or (b) In the case of an action for damages, the earlier of: (i) (ii) 180 days from the day that the purchaser first had knowledge of the facts giving rise to the cause of action; and three years after the day of the transaction that gave rise to the cause of action. Other Provinces While purchasers resident in British Columbia, Quebec, Alberta and Newfoundland and Labrador purchasing under the “accredited investor” exemption contained in NI 45-106 are not entitled to statutory rights under applicable securities laws of each province, the Partnership agrees to provide such purchasers with contractual rights of action for damages or rescission rights equivalent to those that are available to purchasers in Ontario. The foregoing summaries are subject to the express provisions of the Securities Act (Ontario), the Securities Act (Manitoba), The Securities Act, 1988 (Saskatchewan), the Securities Act (New Brunswick), the Securities Act (Prince Edward Island),and the Securities Act (Nova Scotia) and the regulations made thereunder, and reference should be made thereto for the complete text of such provisions. ANY PERSON CONSIDERING AN INVESTMENT IN THE PARTNERSHIP SHOULD CONSULT HIS/HER/ITS OWN ADVISORS IN ORDER TO FULLY UNDERSTAND THE CONSEQUENCES OF AN INVESTMENT IN THE PARTNERSHIP WITH RESPECT TO SUCH PERSON’S PARTICULAR SITUATION. - 37 - INVESTECO CAPITAL CORP. 70 The Esplanade Suite 400 Toronto, Ontario M5E 1R2 416 304 1750 [email protected] www.investeco.com - 38 - Investeco Private Equity Fund III, L.P. - Confidential Offering Memorandum Investeco 70 The Esplanade, Suite 400 Toronto, Ontario M5E 1R2 T: 416.304.1750 E: info @investeco.com w ww.investeco.com SW-COC-001985...
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This document was uploaded on 02/19/2014.

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