Exhibit 10.2
SHARE ISSUANCE AGREEMENT
SHARE ISSUANCE AGREEMENT dated the 23rd day of January, 2013
BETWEEN:
Asia-Pacific Capital Ltd of Xxxx Xxxxx, Xxx xx Xxxxxxx, Xxxxxxxx Xxxx,
Xxxxxxxxxx (hereinafter, the "SUBSCRIBER")
AND:
Americas Diamond Corp., a Nevada domestic corporation, 0xx Xxxxx, Xxxxxxxx
Xxxxxx House, Berkeley Square, Xxxxxx, X0X 0XX, Xxxxxx Xxxxxxx (hereinafter, the
"COMPANY")
NOW THEREFORE THIS SHARE ISSUANCE AGREEMENT ("AGREEMENT") WITNESSES that the
parties hereto agree as follows:
ARTICLE 1 - INTERPRETATION
SECTION 1.1. DEFINITIONS. When used in this Agreement (including the recitals
and schedules hereto) or in any amendment hereto, the following terms shall,
unless otherwise expressly provided, have the meanings assigned to them herein:
"BANKING DAY" shall mean any day other than a Saturday, Sunday, public holiday
under the laws of the State of Nevada or other day on which banking institutions
are authorized or obligated to close in Nevada.
"CHARTER DOCUMENTS" means contacting documents and by-laws, and all amendments
thereto;
"CONSENT" means any permit, license, approval, consent, order, right,
certificate, judgment, writ, injunction, award, determination, direction,
decree, authorization, franchise, privilege, grant, waiver, exemption and other
concession or by-law, rule or regulation;
"UNIT PRICE" means a price equal to 95% of the volume weighted average of the
closing price (the "VWAP") of Common Stock, for the ten (10) Banking Days
immediately preceding the date of the Notice, as quoted on Google Finance, or
other source of stock quotes as agreed to by the parties; and
"DOLLAR" or "$" means the currency of the United States of America.
ARTICLE 2 - THE SHARE ISSUANCE
SECTION 2.1. SHARE ISSUANCE.
The Subscriber shall make available to the Company in accordance with, and
subject to the terms and conditions of, this Agreement, until January 22, 2015
(the "COMPLETION DATE"), up to $3,200,000 by way of Advances in accordance with
this Sections 2.2, 2.3 and 2.4 of this Agreement. The Completion Date may be
extended for an additional term of up to twelve months at the option of the
Company or the Subscriber upon written notice on or before the Completion Date
in accordance with the notice provisions in Section of this Agreement.
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SECTION 2.2. THE ADVANCES.
On the terms and conditions set forth herein the Subscriber, from time to time,
on any Banking Day, prior to the Completion Date, agrees to make advances to the
Company ("ADVANCES").
SECTION 2.3. PROCEDURE TO REQUEST ADVANCES.
Each Advance shall be made on or before five Banking Days following notice from
the Company. Each such notice shall be given by a notice to the Subscriber in
the form substantially the same as the form attached hereto in Schedule A (each
a "NOTICE").
SECTION 2.4. SUBSCRIPTION AGREEMENT.
Upon making each Advance, the Subscriber shall provide an executed Subscription
Agreement, in a form acceptable to both to this Agreement, to the Company.
SECTION 2.5. USE OF PROCEEDS.
The Company shall use all Advances to fund operating expenses, acquisitions,
working capital and general corporate activities.
SECTION 2.6 OPTION.
The Subscriber may, at their discretion, take the option to subscribe up to a
further $1,800,000, when the total subscription from this agreement has been
received by the Company.
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES
SECTION 3.1. REPRESENTATIONS AND WARRANTIES.
The Company represents and warrants to the Subscriber:
(a) Organization and Corporate Power. The Company has been duly incorporated
and organized and is validly subsisting and in good standing under the laws
of its jurisdiction and has full corporate right, power and authority to
enter into and perform its obligations under the Agreement to which it is
or shall be a party and has full corporate right, power and authority to
own and operate its properties and to carry on its business;
(b) Conflict with Other Instruments. The execution and delivery by the Company
of the Agreement and the performance by the Company of its obligations
thereunder, do not and will not: (i) conflict with or result in a breach of
any of the terms, conditions or provisions of: (A) the charter documents of
the Company; (B) any law applicable to or binding on the Company; or (C)
any contractual restriction binding on or affecting the Company or its
properties the breach of which would have a material adverse effect on the
Company; or (ii) result in, or require or permit: (A) the imposition of any
lien on or with respect to the properties now owned or hereafter acquired
by the Company; or (B) The acceleration of the maturity of any debt of the
Company, under any contractual provision binding on or affecting the
Company;
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(c) Consents, Official Body Approvals. The execution and delivery of the
Agreement and the performance by the Company of its obligations thereunder
have been duly authorized by all necessary action on the part of the
Company, and no Consent under any applicable law and no registration,
qualification, designation, declaration or filing with any official body
having jurisdiction over the Company is or was necessary therefore. The
Company possesses all Consents, in full force and effect, under any
applicable Law which are necessary in connection With the operation of its
business, the non-possession of which could reasonably be expected to have
a material adverse effect on the Company;
(d) Execution of Binding Obligation. The Agreement has been duly executed and
delivered by the Company and, when duly executed by the Company and
delivered for value, the Agreement will constitute legal, valid and binding
obligations of the Company, enforceable against The Company, in accordance
with its terms;
(e) No Litigation. There are no actions, suits or proceedings pending or, to
the knowledge of the Company, after due inquiry, threatened against or
affecting the Company (nor, to the knowledge of the Company, after due
inquiry, any basis therefor) before any official body having jurisdiction
over the Company which purport to or do challenge the validity or propriety
of the transactions contemplated by the Share Issuance the Company, which
if adversely determined could reasonably be expected to have a material
adverse effect on the Company;
(g) Absence of Changes. Since the date of the most recently delivered financial
statements of the Company, the Company has carried on its business,
operations and affairs only in the ordinary and normal course consistent
with past practice.
ARTICLE 4 - COVENANTS OF THE COMPANY
SECTION 4.1. AFFIRMATIVE COVENANTS.
Until the Completion Date, the Company shall:
(a) COMPLIANCE WITH LAWS, ETC. Comply with all applicable laws, non-compliance
with which could have a material adverse effect on the Company;
(b) PAYMENT OF TAXES AND CLAIMS. Pay and discharge before the same shall become
delinquent: (i) all taxes and assessments; and (ii) all lawful claims
which, if unpaid, might become a lien upon or in respect of the Company's
assets or properties;
(c) MAINTAIN TITLE. Maintain and, as soon as reasonably practicable, defend and
take, all action necessary or advisable at any time, and from time to time,
to maintain, defend, exercise or renew its right, title and interest in and
to all of its property and assets;
(d) PAY OBLIGATIONS TO SUBSCRIBER AND PERFORM OTHER COVENANTS. Make full and
timely payment of its obligations hereunder and duly comply with the terms
and covenants contained in this Agreement, all at the times and places and
in the manner set forth therein;
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(e) FURTHER ASSURANCES. At its cost and expense, upon request by the
Subscriber, duly execute and deliver, or cause to be duly executed and
delivered, to the Subscriber, such further instruments and do and cause to
be done such other acts as may be necessary or proper in the reasonable
opinion of the Subscriber to carry out more effectually the provisions and
purposes of this Agreement.
ARTICLE 5 - SHARE ISSUANCE
SECTION 5.1 SHARE ISSUANCE.
The Company shall issue, within fifteen (15) Banking Days following the date of
the receipt by the Company of any Advance under this Agreement, units (each a
"UNIT") of the Company at the Unit Price. Each Unit shall consist of one share
(each a "SHARE") of the common stock of the Company (the "COMMON STOCK") and one
share purchase warrant (each a "Warrant"). Each Warrant shall entitle the
Subscriber to purchase one additional share (each a "WARRANT SHARE") of Common
Stock, at an exercise price equal to 110% of the Unit Price at which the Unit
containing the Warrant being exercised was issued, for a period of two (2) years
from the date such Warrant is issued. Upon receipt of any Advance under this
Agreement, the Company shall promptly cause its registrar and transfer agent to
issue the certificates representing the Shares. If the Subscriber exercises the
Warrants, the Company shall promptly cause its registrar and transfer agent to
issue the certificates representing the Warrant Shares.
SECTION 5.2 FRACTIONAL SHARES.
Notwithstanding any other provisions of this Agreement, no certificate for
fractional shares of the Shares or the Warrant Shares shall be issued to the
Subscriber. In lieu of any such fractional shares, if the Subscriber would
otherwise be entitled to receive a fraction of a share of the Shares or Warrant
Shares following a Share Issuance or exercise of a Warrant, as applicable, the
Subscriber shall be entitled to receive from the Company a stock certificate
representing the nearest whole number of shares of the Company.
ARTICLE 6 - MISCELLANEOUS
SECTION 6.1. NOTICES, ETC.
Except as otherwise expressly provided herein, all notices, requests, demands,
directions and communications by one party to the other shall be sent by hand
delivery or registered mail or fax, and shall be effective when hand delivered
or when delivered by the relevant postal service or when faxed and confirmed, as
the case may be. All such notices shall be addressed to the President of the
notified party at its address given on the signature page of this Agreement, or
in accordance with any unrevoked written direction from such party to the other
party.
SECTION 6.2. NO WAIVER; REMEDIES.
No failure on the part of the Subscriber or the Company to exercise, and no
delay in exercising, any right under this Agreement shall operate as a waiver
thereof. The remedies herein provided are cumulative and not exclusive of any
remedies provided by Law.
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SECTION 6.3. JURISDICTION.
(1) Each of the parties hereby irrevocably attorns to the non-exclusive
jurisdiction of the Courts of the State of Nevada in any action or proceeding
arising out of or relating to this Agreement. The Company agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by Law; and (2) nothing in this Section 6.3 shall affect the right of
the Subscriber to serve legal process in any other manner permitted by Law or
affect the right of the Subscriber to bring any action or proceeding against the
Company or its property in the courts of other jurisdictions.
SECTION 6.4. SUCCESSORS AND ASSIGNS.
The Company shall not have the right to assign its rights hereunder or any
interest herein without the prior written consent of the Subscriber, which
consent may be arbitrarily withheld.
SECTION 6.5. SEVERABILITY.
If one or more provisions of this Agreement be or become invalid, or
unenforceable in whole or in part in any jurisdiction, the validity of the
remaining provisions of this Agreement shall not be affected. The parties hereto
undertake to replace any such invalid provision without delay with a valid
provision which as nearly as possible duplicates the economic intent of the
invalid provision.
SECTION 6.6. COUNTERPARTS.
This Agreement may be executed in counterparts and by different parties in
separate counterparts, each of which when so executed shall be deemed an
original and all of which, taken together, shall constitute one and the same
instrument.
SECTION 6.7. SYNDICATION/PARTICIPATION.
The Subscriber may not sell, transfer, assign, participate, syndicate or
negotiate to one or more third parties, in whole or in part, the Commitment and
its rights under this Agreement, without the prior written consent of the
Company, which consent may not be arbitrarily withheld.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be executed
by their respective officers thereunto duly authorized, as of the date first
above written.
Asia-Pacific Capital Ltd Americas Diamond Corp
By: /s/ Authorized Signatory By: /s/ Xxxxxx Xxxxxxxx-Xxxxxxxx
------------------------------- -------------------------------
Authorized Signing Officer Authorized Signing Officer
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SCHEDULE A
NOTICE
To: Asia-Pacific Capital Ltd (the "Subscriber")
The undersigned, Americas Diamond Corp. (the "Company") hereby requests an
advance of $________________, in accordance with the terms and conditions set
forth in the Share Issuance agreement dated January 23, 2013, between the
Subscriber and the Company and as of the Date of Notice written below.
DATE OF NOTICE: ________________
Remaining amount to be advanced
under the Share Issuance: ________________
_______________________________
Per:___________________________
Authorized Signatory
The Subscriber hereby acknowledges receipt of this Notice and agrees with the
amounts set out above as of this Notice.
_______________________________
Per:___________________________
Authorized Signatory
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Schedule B - Subscription Agreement
SUBSCRIPTION AGREEMENT
AMERICAS DIAMOND CORP
Americas Diamond Corp., a Nevada corporation (hereinafter the "Company"), and
the undersigned (hereinafter the "Subscriber") agree as follows:
WHEREAS:
A. The Company desires to issue a maximum of ___________ shares of common stock
of the Company, par value at $0.001 per share; and
B. Subscriber desires to acquire that number of shares as is set forth on the
signature page hereof (hereinafter the "Shares") at the purchase price set forth
herein.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants hereinafter set-forth, the parties hereto do hereby agree as follows:
1. SUBSCRIPTION FOR SHARES
1.1 Subject to the terms and conditions hereinafter set forth, the Subscriber
hereby subscribes for and agrees to purchase the Shares from the Company at a
price equal to $0.001 per share, and the Company agrees to sell the Shares to
Subscriber in consideration of said purchase price. Upon execution, this
subscription shall be irrevocable by Subscriber.
1.2 The purchase price for the Shares subscribed to hereunder is payable by the
Subscriber contemporaneously with the execution and delivery of this
Subscription Agreement to Xxxxxx Xxxxxxxx, Americas Diamond Corp., 0xx Xxxxx
Xxxxxxx Xxxxxx Xxxxx, Xxxxxxxx Xxxxxx, Xxxxxx, X0X 0XX or such other place as
the Company shall designate in writing. Payment can be made either by submitting
a personal check, cashier's check or money order or by such other consideration
that the board deems advisable in its discretion (e.g., promissory note), for
the full purchase price of $0.001 per Share with the executed Subscription
Agreement. Payments shall be made payable to "Americas Diamond Corp."
2. REPRESENTATIONS AND WARRANTIES BY SUBSCRIBER
2.1 Subscriber hereby acknowledges, represents and warrants to the Company the
following:
(A) Subscriber acknowledges that the purchase of the shares subscribed to
herein involves a high degree of risk in that the Company has only
recently been incorporated and may require substantial funds;
(B) an investment in the Company is highly speculative and only investors
who can afford the loss of their entire investment should consider
investing in the Company and the Shares;
(C) Subscriber has such knowledge and experience in finance, securities,
investments, including investment in unlisted and unregistered
securities, and other business matters so as to be able to protect its
interests in connection with this transaction;
(D) Subscriber acknowledges that no market for the Shares presently exists
and none may develop in the future and accordingly Subscriber may not
be able to liquidate its investment;
(E) Subscriber hereby acknowledges (i) that this offering of Shares has
not been reviewed by the United States Securities and Exchange
Commission ("SEC") or by the securities regulator of any state; (ii)
that the Shares are being issued by the Company pursuant to an
exemption from registration provided by Section 4(2) of the Securities
Act of 1933; and (iii) that any certificate evidencing the Shares
received by Subscriber will bear a legend in substantially the
following form:
THE STOCK REPRESENTED BY THIS CERTIFICATE HAS BEEN ACQUIRED FOR
INVESTMENT AND HAS NOT BEEN REGISTERED WITH THE UNITED STATES
SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR UNDER ANY APPLICABLE STATE SECURITIES LAWS. WITHOUT
SUCH REGISTRATION, SUCH SECURITIES MAY NOT BE SOLD OR OTHERWISE
TRANSFERRED AT ANY TIME WHATSOEVER UNLESS IN THE OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY REGISTRATION IS NOT REQUIRED FOR SUCH
TRANSFER AND THAT SUCH TRANSFER WILL NOT BE IN VIOLATION OF THE
APPLICABLE FEDERAL AND STATE SECURITIES LAWS OR ANY RULE OR REGULATION
PROMULGATED THEREUNDER.
(F) Subscriber is not aware of any advertisement of the Shares.
2.1 REPRESENTATIONS BY THE COMPANY
3.1 The Company represents and warrants to the Subscriber that:
(A) The Company is a corporation duly organized, existing and in good
standing under the laws of the State of Nevada and has the corporate
power to conduct the business which it conducts and proposes to
conduct.
(B) Upon issue, the Shares will be duly and validly issued, fully paid and
non-assessable common stock in the capital of the Company.
TERMS OF SUBSCRIPTION
4.1 Pending acceptance of this subscription by the Company, all funds paid
hereunder shall be deposited by the Company and immediately available to the
Company for its general corporate purposes.
4.2 Subscriber hereby authorizes and directs the Company to deliver the
securities to be issued to such Subscriber pursuant to this Subscription
Agreement to Subscriber's address indicated herein.
4.3 Notwithstanding the place where this Subscription Agreement may be executed
by any of the parties hereto, the parties expressly agree that all the terms and
provisions hereof shall be construed in accordance with and governed by the laws
of the State of Nevada. Exclusive venue for any dispute arising out of this
Subscription Agreement or the Shares shall be the state or federal courts sited
in Xxxxx County, Nevada. 4.4 The parties agree to execute and deliver all such
further documents, agreements and instruments and take such other and further
action as may be necessary or appropriate to carry out the purposes and intent
of this Subscription Agreement.
IN WITNESS WHEREOF, this Subscription Agreement is executed as of the ___ day of
______, 201_.
Number of Shares Subscribed For: ________________________________________
Total Purchase Price: ________________________________________
Signature of Subscriber: ________________________________________
Name of Subscriber: ________________________________________
Address of Subscriber: ________________________________________
ACCEPTED BY: AMERICAS DIAMOND CORP.
Signature of Authorized Signatory: ________________________________________
Name of Authorized Signatory: ________________________________________
Date of Acceptance: ________________________________________
APPENDIX "A"
TERMS AND CONDITIONS dated ________ ___, 201_, attached to the Warrants issued
by Americas Diamond Corp.
1. INTERPRETATION
1.1 Definitions
In these Terms and Conditions, unless there is something in the subject matter
or context inconsistent therewith:
(a) "Company" means Americas Diamond Corp. until a successor corporation
will have become such as a result of consolidation, amalgamation or
merger with or into any other corporation or corporations, or as a
result of the conveyance or transfer of all or substantially all of
the properties and estates of the Company as an entirety to any other
corporation and thereafter "Company" will mean such successor
corporation;
(b) "Company's Auditors" means an independent firm of accountants duly
appointed as auditors of the Company;
(c) "Director" means a director of the Company for the time being, and
reference, without more, to action by the directors means action by
the directors of the Company as a Board, or whenever duly empowered,
action by an executive committee of the Board;
(d) "herein", "hereby" and similar expressions refer to these Terms and
Conditions as the same may be amended or modified from time to time;
and the expression "Article" and "Section," followed by a number refer
to the specified Article or Section of these Terms and Conditions;
(e) "person" means an individual, corporation, partnership, trustee or any
unincorporated organization and words importing persons have a similar
meaning;
(f) "shares" means the common shares in the capital of the Company as
constituted at the date hereof and any shares resulting from any
subdivision or consolidation of the shares;
(g) "Warrant Holders" or "Holders" means the holders of the Warrants; and
(h) "Warrants" means the warrants of the Company issued and presently
authorized and for the time being outstanding.
1.2 Gender
Words importing the singular number include the plural and vice versa and words
importing the masculine gender include the feminine and neuter genders.
1.3 Interpretation not affected by Headings
The division of these Terms and Conditions into Articles and Sections, and the
insertion of headings are for convenience of reference only and will not affect
the construction or interpretation thereof.
1.4 Applicable Law
The Warrants will be construed in accordance with the laws of the State of
Nevada.
2. ISSUE OF WARRANTS
2.1 Additional Warrants
The Company may at any time and from time to time issue additional warrants or
grant options or similar rights to
purchase shares of its capital stock.
2.2 Warrant to Rank PARI PASSU
All Warrants and additional warrants, options or similar rights to purchase
shares from time to time issued or granted by the Company, will rank PARI PASSU
whatever may be the actual dates of issue or grant thereof, or of the dates of
the certificates by which they are evidenced.
2.3 Issue in substitution for Lost Warrants
(a) In case a Warrant becomes mutilated, lost, destroyed or stolen, the
Company, at its discretion, may issue and deliver a new Warrant of
like date and tenor as the one mutilated, lost, destroyed or stolen,
in exchange for and in place of and upon cancellation of such
mutilated Warrant, or in lieu of, and in substitution for such lost,
destroyed or stolen Warrant and the substituted Warrant will be
entitled to the benefit hereof and rank equally in accordance with its
terms with all other Warrants issued or to be issued by the Company.
(b) The applicant for the issue of a new Warrant pursuant hereto will bear
the cost of the issue thereof and in case of loss, destruction or
theft furnish to the Company such evidence of ownership and of loss,
destruction, or theft of the Warrant so lost, destroyed or stolen as
will be satisfactory to the Company in its discretion and such
applicant may also be required to furnish indemnity in amount and form
satisfactory to the Company in its discretion, and will pay the
reasonable charges of the Company in connection therewith.
2.4 Warrant Holder Not a Shareholder
The holding of a Warrant will not constitute the Holder thereof a shareholder of
the Company, nor entitle him to any right or interest in respect thereof except
as in the Warrant expressly provided.
3. NOTICE
3.1 Notice to Warrant Holders
Any notice required or permitted to be given to the Holders will be in writing
and may be given by prepaid registered post, electronic facsimile transmission
or other means of electronic communication capable of producing a printed copy
to the address of the Holder appearing on the Holder's Warrant or to such other
address as any Holder may specify by notice in writing to the Company, and any
such notice will be deemed to have been given and received by the Holder to whom
it was addressed if mailed, on the third day following the mailing thereof, if
by facsimile or other electronic communication, on successful transmission, or,
if delivered, on delivery; but if at the time or mailing or between the time of
mailing and the third business day thereafter there is a strike, lockout, or
other labour disturbance affecting postal service, then the notice will not be
effectively given until actually delivered.
3.2 Notice to the Company
Any notice required or permitted to be given to the Company will be in writing
and may be given by prepaid registered post, electronic facsimile transmission
or other means of electronic communication capable of producing a printed copy
to the address of the Company set forth below or such other address as the
Company may specify by notice in writing to the Holder, and any such notice will
be deemed to have been given and received by the Company to whom it was
addressed if mailed, on the third day following the mailing thereof, if by
facsimile or other electronic communication, on successful transmission, or, if
delivered, on delivery; but if at the time or mailing or between the time of
mailing and the third business day thereafter there is a strike, lockout, or
other labour disturbance affecting postal service, then the notice will not be
effectively given until actually delivered:
Americas Diamond Corp.
0xx Xxxxx
Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxx Xxxxxx
Xxxxxx
X0X 0XX
Attention: Xxxxxx Xxxxxxxx
Fax: x00 000 000 0000
with a copy to:
Xxxxxxxxx Xxxxxx
Corporate and Securities Lawyers
1210 - 000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
Xxxxxx X0X 0X0
Attention: Xxxxxxx X. Xxxxxxxxx
Fax: (000) 000-0000
4. EXERCISE OF WARRANTS
4.1 Method of Exercise of Warrants
The right to purchase shares conferred by the Warrants may be exercised by the
Holder surrendering the Warrant Certificate representing same, with a duly
completed and executed subscription in the form attached hereto and a bank draft
or certified cheque payable to or to the order of the Company, at par, in
Vancouver, Canada, for the purchase price applicable at the time of surrender in
respect of the shares subscribed for in lawful money of the United States of
America, to the Company at the address set forth in, or from time to time
specified by the Company pursuant to, Section 3.2.
4.2 Effect of Exercise of Warrants
(a) Upon surrender and payment as aforesaid the shares so subscribed for
will be deemed to have been issued and such person or persons will be
deemed to have become the Holder or Holders of record of such shares
on the date of such surrender and payment, and such shares will be
issued at the subscription price in effect on the date of such
surrender and payment.
(b) Within ten business days after surrender and payment as aforesaid, the
Company will forthwith cause to be delivered to the person or persons
in whose name or names the shares so subscribed for are to be issued
as specified in such subscription or mailed to him or them at his or
their respective addresses specified in such subscription, a
certificate or certificates for the appropriate number of shares not
exceeding those which the Warrant Holder is entitled to purchase
pursuant to the Warrant surrendered.
4.3 Subscription for Less Than Entitlement
The Holder of any Warrant may subscribe for and purchase a number of shares less
than the number which he is entitled to purchase pursuant to the surrendered
Warrant. In the event of any purchase of a number of shares less than the number
which can be purchased pursuant to a Warrant, the Holder thereof upon exercise
thereof will in addition be entitled to receive a new Warrant in respect of the
balance of the shares which he was entitled to purchase pursuant to the
surrendered Warrant and which were not then purchased.
4.4 Warrants for Fractions of Shares
To the extent that the Holder of any Warrant is entitled to receive on the
exercise or partial exercise thereof a fraction of a share, such right may be
exercised in respect of such fraction only in combination with another Warrant
or other Warrants which in the aggregate entitle the Holder to receive a whole
number of such shares.
4.5 Expiration of Warrants
After the expiration of the period within which a Warrant is exercisable, all
rights thereunder will wholly cease and terminate and such Warrant will be void
and of no effect.
4.6 Time of Essence
Time will be of the essence hereof.
4.7 Subscription Price
Each Warrant is exercisable at a price per share (the "Exercise Price") of
US$______. One (1) Warrant and the Exercise Price are required to subscribe for
each share during the term of the Warrants.
4.8 Adjustment of Exercise Price
(a) The Exercise Price and the number of shares deliverable upon the
exercise of the Warrants will be subject to adjustment in the event
and in the manner following:
(i) If and whenever the shares at any time outstanding are subdivided
into a greater or consolidated into a lesser number of shares the
Exercise Price will be decreased or increased proportionately as
the case may be; upon any such subdivision or consolidation the
number of shares deliverable upon the exercise of the Warrants
will be increased or decreased proportionately as the case may
be.
(ii) In case of any capital reorganization or of any reclassification
of the capital of the Company or in the case of the
consolidation, merger or amalgamation of the Company with or into
any other Company (hereinafter collectively referred to as a
"Reorganization"), each Warrant will after such Reorganization
confer the right to purchase the number of shares or other
securities of the Company (or of the Company's resulting from
such Reorganization) which the Warrant Holder would have been
entitled to upon Reorganization if the Warrant Holder had been a
shareholder at the time of such Reorganization.
In any such case, if necessary, appropriate adjustments will be
made in the application of the provisions of this Article Four
relating to the rights and interest thereafter of the Holders of
the Warrants so that the provisions of this Article Four will be
made applicable as nearly as reasonably possible to any shares or
other securities deliverable after the Reorganization on the
exercise of the Warrants.
The subdivision or consolidation of shares at any time
outstanding into a greater or lesser number of shares (whether
with or without par value) will not be deemed to be a
Reorganization for the purposes of this clause 4.8(a)(ii).
(b) The adjustments provided for in this Section 4.8 are cumulative and
will become effective immediately after the record date or, if no
record date is fixed, the effective date of the event which results in
such adjustments.
4.9 Determination of Adjustments
If any questions will at any time arise with respect to the Exercise Price or
any adjustment provided for in Section 4.8, such questions will be conclusively
determined by the Company's Auditors, or, if they decline to so act any other
firm of certified public accountants in the United States of America that the
Company may designate and who will have access to all appropriate records and
such determination will be binding upon the Company and the Holders of the
Warrants.
5. COVENANTS BY THE COMPANY
5.1 Reservation of Shares
The Company will reserve and there will remain unissued out of its authorized
capital a sufficient number of shares to satisfy the rights of purchase provided
for herein and in the Warrants should the Holders of all the Warrants from time
to time outstanding determine to exercise such rights in respect of all shares
which they are or may be entitled to purchase pursuant thereto and hereto.
6. WAIVER OF CERTAIN RIGHTS
6.1 Immunity of Shareholders, etc.
The Warrant Holder, as part of the consideration for the issue of the Warrants,
waives and will not have any right, cause of action or remedy now or hereafter
existing in any jurisdiction against any past, present or future incorporator,
shareholder, Director or Officer (as such) of the Company for the issue of
shares pursuant to any Warrant or on any covenant, agreement, representation or
warranty by the Company herein contained or in the Warrant.
7. MODIFICATION OF TERMS, MERGER, SUCCESSORS
7.1 Modification of Terms and Conditions for Certain Purposes
From time to time the Company may, subject to the provisions of these presents,
modify the Terms and Conditions hereof, for the purpose of correction or
rectification of any ambiguities, defective provisions, errors or omissions
herein.
7.2 Warrants Not Transferable
The Warrant and all rights attached to it are not transferable.
FORM OF SUBSCRIPTION
TO: Americas Diamond Corp.
0xx Xxxxx, Xxxxxxxx Xxxxxx Xxxxx, Xxxxxxxx Xxxxxx
Xxxxxx, X0X 0XX
The undersigned Holder of the within Warrants hereby subscribes for common
shares (the "Shares") of Americas Diamond Corp. (the "Company) pursuant to the
within Warrants at US$________ per Share on the terms specified in the said
Warrants. This subscription is accompanied by a certified cheque or bank draft
payable to or to the order of the Company for the whole amount of the purchase
price of the Shares.
The undersigned hereby directs that the Shares be registered as follows:
NUMBER OF
NAME(S) IN FULL ADDRESS(ES) SHARES
--------------- ----------- ------
_________________________ _________________________ ____________________
_________________________ _________________________ ____________________
TOTAL: ____________________
(Please print full name in which share certificates are to be issued, stating
whether Mr., Mrs. or Miss is applicable).
DATED this ____ day of _________, ____.
In the presence of:
________________________________ ________________________________
Signature of Witness Signature of Warrant Holder
Please print below your name and address in full.
Name (Mr./Mrs./Miss) ________________________________
Address ________________________________
________________________________
INSTRUCTIONS FOR SUBSCRIPTION
The signature to the subscription must correspond in every particular with the
name written upon the face of the Warrant without alteration or enlargement or
any change whatever. If there is more than one subscriber, all must sign.
In the case of persons signing by agent or attorney or by personal
representative(s), the authority of such agent, attorney or representative(s) to
sign must be proven to the satisfaction of the Company.
If the Warrant certificate and the form of subscription are being forwarded by
mail, registered mail must be employed.
