SUBSCRIPTION AGREEMENT
Exhibit 10.32
November 12, 1997
TO: Idaho Consolidated Metals Corp.
The undersigned (the "Purchaser") hereby subscribes irrevocably for and agrees
to purchase from Idaho Consolidated Metals Corp. (the "Company"), subject to the
terms and conditions set forth herein, that number of Units (the "Units") of the
Company specified in paragraph A of Schedule "A" hereto for an aggregate
subscription price specified in paragraph B of Schedule "A" hereto, representing
a subscription price of CDN$0.60 (US$0.43) per Unit.
1. Definitions
1.1 In this Subscription Agreement, including any schedules forming a part of
this Subscription Agreement:
(a) "1933 Act" means the United States Securities Act of 1933, as amended;
(b) "B.C. Act" means the Securities Act (British Columbia);
(c) "Applicable Securities Laws" means, in respect of each and every offer
or sale of Units, the securities legislation having application and
the rules, policies, notices and orders issued by applicable
Regulatory Authorities having application;
(d) "Closing Date" has the meaning given to that term in section 9.1;
(e) "Closing" has the meaning given to that term in section 9.1;
(f) "distribution" has the meaning given to that term under Applicable
Securities Laws;
(g) "Exchange" means the Vancouver Stock Exchange;
(h) "Exemptions" means the exemptions from the registration and prospectus
or equivalent requirements under Applicable Securities Laws;
(i) "Foreign Portfolio Manager" means a person who carries on business as
a "portfolio manager" (within the meaning of that term under the
Applicable Securities Laws of British Columbia) in an International
Jurisdiction or the United States and who purchases Units as an agent
for fully managed accounts;
(j) "fully managed" in relation to an account, means that the Purchaser
has the absolute discretion as to purchasing and selling for the
account and in respect of which the Purchaser receives no instructions
from any person beneficially interested in such account or from any
other person;
(k) "International Jurisdiction" means a country other than Canada or the
United States;
(l) "material fact" has the meaning given to that term under Applicable
Securities Laws;
(m) "Offering Memorandum" means an offering memorandum prepared by the
Company in connection with the Private Placement, and all amendments
thereto and has the meaning, if any, given that term under Applicable
Securities Laws;
(n) "Private Placement" means the offering and sale of the Units pursuant
to the terms and conditions of the Subscription Agreements;
(o) "Purchaser" means a person that subscribes for and purchases Units
under the Private Placement;
(p) "Purchaser's Units" means the number of Units subscribed for by the
Purchaser under this Subscription Agreement as specified in paragraph
A of Schedule "A" hereto;
(q) "Purchaser's Subscription Funds" means the aggregate subscription
price for the Units subscribed for by the Purchaser as specified and
defined in paragraph B of Schedule "A" hereto;
(r) "Qualifying Jurisdictions" means the Province of British Columbia, and
such other jurisdictions as may be determined by the Company;
(s) "Regulation S" means Regulation S promulgated by the Securities
Exchange Commission under the 1933 Act;
(t) "Regulatory Authorities" means the securities regulatory authorities
in each of the Qualifying Jurisdictions;
(u) "Subscription Agreement" means the subscription agreements (including
this subscription agreement) or purchase agreements to be entered into
between Purchasers of Units and the Company in respect of the purchase
and sale of Units and includes all schedules attached to such
subscription agreements or purchase agreements, in each case as they
may be amended or supplemented from time to time;
(v) "Time of Closing" has the meaning given to that term in section 10.1;
(w) "Unit" means an equity unit of the Company offered under the Private
Placement, each Unit consisting of one Unit Share and one Unit
Warrant, and "Units" means more than one "Unit";
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(x) "Unit Share" means a common share of the Company forming part of a
Unit and "Unit Shares" means more than one Unit Share;
(y) "Unit Warrant" means a common share purchase warrant forming part of a
Unit and "Unit Warrants" means more than one Unit Warrant;
(z) "United States" means the United States of America, its territories
and possessions, any states of the United States, and the District of
Columbia;
(aa) "U.S. person" has the meaning ascribed thereto in Rule 902 of
Regulations S; and
(bb) "Warrant Share" means a common share of the Company to be issued upon
the exercise of one or more Unit Warrants and "Warrant Shares" means
more than one Warrant Share.
2. Subscription Procedure
2.1 The Purchaser shall deliver to the Company:
(a) cash, certified cheque or bank draft payable to the "Idaho
Consolidated Metals Corp." or such other party as the Company may
direct in an amount equal to the Purchaser's Subscription Funds;
(b) a completed and originally executed copy of this Subscription
Agreement (including Schedule A hereto);
(c) a completed and originally executed copy of the Private Placement
Questionnaire and Undertaking attached as Schedule "B" hereto;
(d) if the Purchaser is an individual, a completed and originally executed
copy of the Form 20A(IP) attached as Schedule "C" hereto; and
(e) if the Purchaser is other than an individual, a completed and
originally executed copy of the Form 20A(NIP) attached as Schedule "D"
hereto.
2.2 The Purchaser's Private Placement Questionnaire and Undertaking attached as
Schedule "B" hereto will be delivered to the Company so as to permit the Company
to make such necessary filings with the Exchange to obtain the approval of the
Exchange to the Private Placement. On Closing, the Company will, subject to
section 2.3, then issue and sell the Purchaser's Units to the Purchaser and
cause to be issued and delivered a definitive certificate representing the
Purchaser's Unit Shares and a definitive certificate representing the
Purchaser's Unit Warrants, each registered in the name of the Purchaser (or in
the other name or names set forth in paragraph D of Schedule "A" hereto) to or
upon the direction of the Purchaser, for delivery to the Purchaser in accordance
with the Purchaser's instructions in paragraph E of Schedule "A" hereto. In the
event that this offer is not accepted by the Company, this offer will be
returned by the Company to the Purchaser at the address of the Purchaser set
forth in paragraph C of Schedule "A" hereto.
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2.3 The Company will have the right to accept this offer (in whole or in part)
at any time at or prior to the Time of Closing. The Company's acceptance of this
offer will be conditional upon, among other things, the sale of the Purchaser's
Units to the Purchaser being exempt from any registration and prospectus filing
requirements of all Applicable Securities Laws. The Company will be deemed to
have accepted this offer upon the delivery at the Closing of certificates
representing the Purchaser's Unit Shares and the Purchaser's Unit Warrants
referred to in and in accordance with section 2.2.
2.4 The Purchaser will, promptly upon request by the Company, provide the
Company with any additional information and execute and deliver to the Company
additional undertakings, questionnaires and other documents as the Company may
request in connection with the issue and sale of the Units. The Purchaser
acknowledges and agrees that such undertakings, questionnaires and other
documents, when executed and delivered by the Purchaser, will form part of and
will be incorporated into this Subscription Agreement with the same effect as if
each constituted a representation and warranty or covenant of the Purchaser
hereunder in favour of the Company. The Purchaser consents to the filing of such
undertakings, questionnaires and other documents as may be required to be filed
with any stock exchange or securities regulatory authority in connection with
the transactions contemplated under the Subscription Agreement.
3. Terms of Private Placement
3.1 The Units subscribed for are part of a larger offering of up to 1,858,045
Units having the material attributes described below, which is being undertaken
by the Company.
3.2 Each Unit will consist of one Unit Share and one Unit Warrant. Each Unit
Warrant will entitle the holder to purchase one Warrant Share of the Company for
a period of 2 years from the Closing Date at the price of CDN$0.60 (US$0.43) per
share in the first year and CDN$0.70 (US$0.50) per share in the second year.
3.3 The Share Purchase certificate will be in such form and contain such terms
as shall be approved by the Company and its counsel.
4. Representations, Warranties and Covenants of the Purchaser
4.1 By executing this Subscription Agreement, the Purchaser represents, warrants
and covenants to the Company (and acknowledges that the Company and its counsel,
are relying thereon) that:
(a) the Purchaser is resident in the jurisdiction specified in paragraph C of
Schedule "A" to this Subscription Agreement;
(b) the Purchaser's Units are not being purchased by the Purchaser as a result
of any material information concerning the Company that has not been
publicly disclosed and the Purchaser's decision to tender this offer and
purchase the Purchaser's Units has not been made as a result of any verbal
or written representation as to fact or otherwise (including
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that any person will resell or repurchase or refund the purchase price of
the Purchaser's Units other than in accordance with their terms), that the
Unit Shares, Unit Warrants or Warrant Shares will be listed and posted for
trading on a stock exchange or that application has been made for such a
listing or as to the future price or value of the Unit Shares, Unit
Warrants or Warrant Shares made by or on behalf of the Company, or any
other person and is based entirely upon currently available public
information concerning the Company;
(c) if the Purchaser is resident of an International Jurisdiction then:
(i) the Purchaser is knowledgeable of, or has been independently advised
as to, the Applicable Securities Laws of the International
Jurisdiction which would apply to this subscription, if there are any;
(ii) the Purchaser is purchasing the Units pursuant to Exemptions from the
prospectus and registration requirements under the Applicable
Securities Laws of that International Jurisdiction or, if such is not
applicable, the Purchaser is permitted to purchase the Purchaser's
Units under the Applicable Securities Laws of the International
Jurisdiction without the need to rely on Exemptions; and
(iii)the Applicable Securities Laws do not require the Company to make any
filings or seek any approvals of any kind whatsoever from any
regulatory authority of any kind whatsoever in the International
Jurisdiction; and
(iv) the Purchaser will, if requested by the Company, deliver to the
Company a certificate or opinion of local counsel from the
International Jurisdiction which will confirm the matters referred to
in subparagraphs (ii) and (iii) above to the satisfaction of the
Company, acting reasonably;
(d) if the Purchaser is a Foreign Portfolio Manager:
(i) it is purchasing the Units on behalf of managed accounts over which it
has absolute discretion as to purchasing and selling, and in respect
of which it receives no instructions from any person beneficially
interested in such accounts or from any other person;
(ii) it carries on the business of managing the investment portfolios of
clients through discretionary authority granted by those clients (a
"portfolio manager" business) in the International Jurisdiction in
which it residents, and it is permitted by law to carry on a portfolio
manager business in that International Jurisdiction;
(iii)it was not created solely or primarily for the purpose of purchasing
securities of the Company;
(iv) the total asset value of the investment portfolios it manages on
behalf of clients is not less than CDN$20,000,000;
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(v) it does not believe, and has no reasonable grounds to believe, that
any resident of British Columbia has a beneficial interest in any of
the managed accounts for which it is purchasing; and
(vi) it acknowledges that the Company has provided it with a list of the
directors, senior officers and other insiders of the Company, and the
persons that carry on investor relations activities for the Company
and it does not believe, and has no reasonable grounds to believe,
that any of those persons has a beneficial interest in any of the
managed accounts for which it is purchasing; and
(vii)the Purchaser will, if requested by the Company or the Underwriters,
deliver to the Company a certificate or opinion of local counsel from
the International Jurisdiction which will confirm the matters referred
to above to the satisfaction of the Company, acting reasonably;
(e) if the Purchaser is a U.S. Person,
(i) the Purchaser has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risk of
an investment in the Units and it is able to bear the economic risk of
loss of its entire investment;
(ii) the Purchaser is acquiring the Units for its own account, for
investment purposes only and not with a view to any resale,
distribution or other disposition of the Units in violation of the
United States securities laws;
(iii)the Purchaser understands that the Unit Shares, the Unit Warrants and
the Warrant Shares (the "Securities") have not been and will not be
registered under the 1933 Act or the securities laws of any state of
the United States and that the sale contemplated hereby is being made
in reliance of an exemption from such registration requirements;
(iv) the Purchaser satisfies one or more of the categories indicated below
(please place an "X" on the appropriate lines):
______ Category 1 An organization described in Section 501(c)(3) of the United
States Internal Revenue Code, a corporation, a Massachusetts or
similar business trust or partnership, not formed for the
specific purpose of acquiring the Units, with total assets in
excess of US$5,000,000;
______ Category 2 A trust that (a) has total assets in excess of US$5,000,000, (b)
was not formed for the specific purpose of acquiring the Units
and (c) is directed in its purchases
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of securities by a person who has such knowledge and experience
in financial and business matters that he/she is capable of
evaluating the merits and risks of an investment in the Units;
______ Category 3 An investment company registered under the Investment Company Act
of 1940 or a business development company as defined in Section
2(a)(48) of that Act;
______ Category 4 A Small Business Investment Company licensed by the U.S. Small
Business Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958;
______ Category 5 A private business development company as defined in Section
202(a)(22) of the Investment Advisors Acts of 1940; and
______ Category 6 An entity in which all of the equity owners satisfy the
requirements of one or more of the foregoing categories;
(v) the Purchaser agrees that if it decides to offer, sell or otherwise
transfer any of the Securities, it will not offer, sell or otherwise
transfer any of such Securities directly or indirectly, unless:
(A) the sale is to the Company;
(B) the sale is made outside the United States in a transaction
meeting the requirements of Rule 904 of Regulation S under the
1933 Act and in compliance with applicable local laws and
regulations:
(C) the sale is made pursuant to the exemption from the registration
requirements under the 1933 Act provided by Rule 144 thereunder
and in accordance with any applicable state securities or "Blue
Sky" laws; or
(D) the Securities are sold in a transaction that does not require
registration under the 1933 Act or any applicable state laws and
regulations governing the offer and sale of securities, and it
has prior to such sale furnished to the Company an opinion or
counsel reasonably satisfactory to the Company;
(vi) the Purchaser understands and agrees that the Unit Warrants may not be
exercised in the United States unless registered under the 1933 Act
and the securities laws
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of all applicable states of the United States or an exemption from
such registration requirements is available;
(vii)the Purchaser acknowledges that the certificates representing the
Unit Shares, the Unit Warrants and the Warrant Shares will bear a
legend stating that such Securities have not been registered under the
1933 Act or the securities laws of any state of the United States and
may not be offered for sale or sold unless registered under the 1933
Act and the securities laws of all applicable states of the United
States or an exemption from such registration requirements is
available; and
(viii) the Purchaser consents to the Company making a notation on its
records or giving instructions to any transfer agent of the Company in
order to implement the restrictions on transfer set forth and
described herein.
(f) the offering and sale of the Purchaser's Units to the Purchaser was not
made through an advertisement of the Units in printed media of general and
regular paid circulation, radio or television or any other form of
advertisement;
(g) Prior to entering into this Agreement, the Purchaser was provided with, and
reviewed, an Offering Memorandum of the Company prepared for the
distribution of the Units;
(h) if the Purchaser is a corporation, the Purchaser is a valid and subsisting
corporation, has the necessary corporate capacity and authority to execute
and deliver this Subscription Agreement and to observe and perform its
covenants and obligations hereunder and has taken all necessary corporate
action in respect thereof, or, if the Purchaser is a partnership,
syndicate, trust or other form of unincorporated organization, the
Purchaser has the necessary legal capacity and authority to execute and
deliver this Subscription Agreement and to observe and perform its
covenants and obligations hereunder and has obtained all necessary
approvals in respect thereof, and, in either case, upon the Company
executing and delivering this Subscription Agreement, this Subscription
Agreement will constitute a legal, valid and binding contract of the
Purchaser enforceable against the Purchaser in accordance with its terms
and neither the agreement resulting from such acceptance nor the completion
of the transactions contemplated hereby conflicts with, or will conflict
with, or results, or will result, in a breach or violation of any law
applicable to the Purchaser, any constating documents of the Purchaser or
any agreement to which the Purchaser is a party or by which the Purchaser
is bound;
AND the Purchaser makes the representations and warranties under one of the
bolded and italicized headings below:
(i) Cdn$97,000 exemption
(i) in the case of the purchase by the Purchaser of the Units as:
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(A) principal, the Purchaser is purchasing the Units as principal for
its own account, and not for the benefit of any other person, and
is purchasing a sufficient number of Units such that the
aggregate acquisition cost to the Purchaser of such Units is not
less than Cdn$97,000;
(B) agent for a disclosed principal, the Purchaser is an agent with
all necessary authority to execute this Agreement and all
documentation in connection with the purchase on behalf of each
beneficial Purchaser, and each beneficial Purchaser of such Units
for whom the Purchaser is acting is purchasing as principal for
its own account, and not for the benefit of any other person, and
is purchasing a sufficient number of Units so that each such
beneficial Purchaser has an aggregate acquisition cost for such
Units of not less than Cdn$97,000 and the Purchaser has due and
proper authority to execute this Agreement and all other
documentation in connection with the purchase on behalf of each
such undisclosed principal;
(C) as a trustee or as agent for a principal whose account is fully
managed by the Purchaser and whose identity is undisclosed or
identified by account number only, the Purchaser is purchasing a
sufficient number of Units such that the aggregate acquisition
cost to the Purchaser of such Units is not less than Cdn$97,000
and the Purchaser is:
(a) resident in British Columbia and is an insurer which has
received a business authorization under the Financial
Institutions Act (British Columbia) and is purchasing the
Units as trustee or as agent for accounts fully managed by
it;
(b) resident in British Columbia and is a trust company which
has received a business authorization under the Financial
Institutions Act (British Columbia) or is a portfolio
manager registered as such under the B.C. Act or exempt from
such registration under the B.C. Act and is purchasing the
Units, having an aggregate acquisition cost to such
Purchaser of not less than Cdn$97,000, as trustee or as
agent for accounts fully managed by it; or
(c) a trust company, insurer or portfolio manager which is
permitted under the Applicable Securities Laws of British
Columbia and the Applicable Securities Laws of the
jurisdiction in which the Purchaser resides, to be deemed to
be purchasing the Units as principal; or
(d) relying on and is purchasing the Units in accordance with an
order of the applicable securities commission of the
Purchaser's jurisdiction or residence exempting the sale of
such Units from the requirements to file a prospectus or
deliver an offering
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memorandum (as that term is defined under Applicable
Securities Laws) issued on or before the Closing Date;
and the Purchaser has due and proper authority to execute this
Agreement and all other documentation in connection with the
purchase on behalf of each such undisclosed principal; and
(ii) neither the Purchaser nor any beneficial purchaser on whose behalf the
Purchaser is acting has been formed, created, established or
incorporated for the purpose of permitting the purchase of the Units
without a prospectus by groups of individuals whose individual share
of the aggregate acquisition cost for such Units is less than
Cdn$97,000;
(j) 50 sophisticated purchasers exemption:
(i) in the case of a purchase by the Purchaser of Units as:
(A) principal, the Purchaser is purchasing such Units as principal
for its own account and not for the benefit of any other person;
(B) agent for a disclosed principal, each beneficial purchaser of
such Units for whom the Purchaser is acting is purchasing as
principal for its own account, and not for the benefit of any
other person, and the Purchaser is an agent with due and proper
authority to execute this Agreement and all documentation in
connection with the purchase on behalf of each beneficial
purchaser;
(C) a trustee or as agent for a principal which is undisclosed or
identified by account number only, each beneficial purchaser of
the Units for whom the Purchaser is acting is purchasing as
principal for its own account, and not for the benefit of any
other person, and the Purchaser is a trustee or agent with due
and proper authority to execute this Agreement and all
documentation in connection with the purchase on behalf of each
beneficial purchaser;
(ii) the Purchaser is:
(A) a spouse, parent, brother, sister or child of a senior officer or
director of the Company, or of an affiliate of the Company; OR
(B) a company, all the voting securities of which are beneficially
owned by one or more of a senior officer or director of the
Company, or of an affiliate of the Company, or a spouse, parent,
brother, sister or child of a senior officer or director of the
Company, or of an affiliate of the Company; OR
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(C) a "sophisticated purchaser" as defined in the Appendix to Form
20A(NIP) attached as Schedule "D" hereto; and
(iii)the offer and sale of these Units was not accompanied by an
advertisement and the Purchaser was not induced to purchase the
Purchaser's Units as a result of any advertisement made by the
Company;
OR
(k) $25,000 sophisticated purchaser exemption:
(i) in the case of the purchase by the Purchaser of Units as:
(A) principal, the Purchaser is purchasing such Units as principal
for its own account, and not for the benefit of any other person,
and is purchasing a sufficient number of Units such that the
aggregate acquisition cost to the Purchaser of such Units is not
less than CDN$25,000;
(B) agent for a disclosed principal, each beneficial purchaser of
such Units for whom the Purchaser is acting is purchasing as
principal for its own account, and not for the benefit of any
other person, and is purchasing a sufficient number of Units so
that the aggregate acquisition cost to such beneficial purchaser
of such Units is not less than CDN$25,000, and the Purchaser is
an agent with due and proper authority to execute this Agreement
and all documentation in connection with the purchase on behalf
of each beneficial purchaser;
(C) trustee or as agent for a principal which is undisclosed or
identified by account number only, each beneficial purchaser of
the Units for whom the Purchaser is acting is purchasing as
principal for its own account, and not for the benefit of any
other person, and is purchasing a sufficient number of Units so
that the aggregate acquisition cost to beneficial purchaser for
such Units is not less than CDN$25,000, and the Purchaser is a
trustee or agent with due and proper authority to execute this
Agreement and all documentation in connection with the purchase
on behalf of each beneficial purchaser;
(ii) neither the Purchaser nor any beneficial purchaser on whose behalf the
Purchaser is acting has been formed, created, established or
incorporated for the purpose of permitting the purchase of the Units
without a prospectus by groups of individuals whose individual share
of the aggregate acquisition cost for such Units is less than
CDN$25,000; and
(iii)the Purchaser is a "sophisticated purchaser" as defined in the
Appendix to Form 20A(NIP) attached as Schedule "D" hereto;
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OR
(l) Directors and employees exemption:
(i) the Purchaser subscribes for and purchases the Units as principal for
the Purchaser's own account and not for the benefit of any other
person; and
(ii) the Purchaser is:
(A) an employee, senior officer or director of the Company or of an
affiliate of the Company and the Purchaser has not been induced
to make this subscription by expectation of employment or
continued employment; or
(B) a trustee on behalf of a person referred to in subparagraph (A)
above; or
(C) an issuer all the voting securities of which are beneficially
owned by one or more of the persons referred to in subparagraph
(A) above.
OR
(m) Friends and relatives exemption:
(i) the Purchaser subscribes for and purchases the Units as principal for
the Purchaser's own account and not for the benefit of any other
person; and
(ii) the Purchaser is:
(A) a spouse, parent, brother, sister, child or close personal friend
of a senior officer or director of the Company, or of an
affiliate of the Company; or
(B) a company, all the voting securities of which are beneficially
owned by one or more of a senior officer of director of the
Company, or of an affiliate of the Company, or a spouse, parent,
brother, sister, child or close personal friend of a senior
officer or director of the Company, or of an affiliate of the
Company; and
(iii)the offer and sale of these Units was not accompanied by an
advertisement and the Purchaser was not induced to purchase the
Purchaser's Units as a result of any advertisement made by the
Company;
4.2 The foregoing representations and warranties are made by the undersigned
with the intent that they may be relied upon in determining the undersigned's
eligibility to acquire the Units under Applicable Securities Laws. Unless the
Purchaser otherwise has advised the Company in writing, the representations and
warranties of the Purchaser contained in this Subscription Agreement shall be
true at the Time of Closing as though they were made at the Time of Closing and
shall survive the completion of the transactions contemplated under this
Subscription Agreement for a period of one year from the Closing Date.
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4.3 The Purchaser understands that the Purchaser is purchasing the Units
pursuant to exemptions from the prospectus requirements of the Applicable
Securities Laws of the Qualifying Jurisdictions and as a consequence the
Purchaser may be restricted from using some of the civil remedies available
under the Applicable Securities Laws, the Purchaser may not receive information
that would otherwise be required to be provided to the Purchaser under
Applicable Securities Laws if the Exemptions were not being used and the Company
is relieved from certain obligations that would otherwise apply under Applicable
Securities Laws if the Exemptions were not being used. The Purchaser
acknowledges that no securities commission or similar regulatory authority has
reviewed or passed on the merits of the Private Placement.
5. Covenants of the Company
5.1 The Company will:
(a) offer, sell, issue and deliver the Units pursuant to the Exemptions or
qualification requirements of Applicable Securities Laws of the
Qualifying Jurisdictions and otherwise fulfil all legal requirements
required to be fulfilled by the Company (including without limitation,
compliance with all Applicable Securities Laws of the Qualifying
Jurisdictions) in connection with the Private Placement;
(b) use its reasonable best efforts to maintain its status as a "reporting
issuer" not in default in British Columbia for a period of two years
from the Closing Date;
(c) use its reasonable best efforts to maintain its listing of its common
shares on the Exchange for a period of two years from the Closing
Date;
(d) within the required time, file with the applicable Regulatory
Authorities and the Exchange any documents, reports and information,
in the required form, required to be filed by Applicable Securities
Laws in connection with the Private Placement, together with any
applicable filing fees and other materials;
(e) from and including the date of this Subscription Agreement through to
and including the Time of Closing, do all such acts and things
necessary to ensure that all of the representations and warranties of
the Company contained in this Subscription Agreement or any
certificates or documents delivered by it pursuant thereto remain true
and correct in all material respects; and
(f) from and including the date of this Subscription Agreement through to
and including the Time of Closing, not do any such act or thing that
would render any representation or warranty of the Company contained
in this Subscription Agreement or any certificates or documents
delivered by it pursuant thereto materially untrue or materially
incorrect.
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6. Resale Restrictions and Contractual Rights
6.1 The Purchaser understands and acknowledges that the Unit Shares, Unit
Warrants and Warrant Shares will be subject to certain resale restrictions under
Applicable Securities Laws and the securities laws of the United States and that
certificates representing the Unit Shares, Unit Warrants and Warrant Shares may
bear certain legends to that effect. If the Purchaser is a resident of any
jurisdiction other than British Columbia, the Purchaser further understands that
the Company is presently a reporting issuer only in British Columbia and that
the Unit Shares, Unit Warrants and Warrant Shares may be subject to an
indefinite hold period.
6.2 The Purchaser also acknowledges that it has been advised to consult its own
legal advisors with respect to applicable resale restrictions and that it is
solely responsible (and the Company is not in any manner responsible) for
complying with such restrictions.
6.3 If an Offering Memorandum is delivered to the Purchaser and it contains a
misrepresentation (as that term is defined under the B.C. Act) at the time this
Agreement is entered into, then the Purchaser may, while still the owner of the
Units, either rescind this Agreement or commence a civil action against the
Company for damages. In either case, written notice must be given to the Company
not later than 90 days after the date of which payment was made for the Units.
The Purchaser will not be entitled to commence an action to enforce this right
after, in the case of an action for rescission, 180 days after the date of
purchase of the Purchaser's Units or in the case of an action for damages, the
earlier of 180 days following the date the Purchaser first had knowledge of the
misrepresentation or three years following the date of purchase of the
Purchaser's Units.
The rights of action for rescission or damages described above shall be subject
to the defences, limitations and other provisions described under section 131 of
the B.C. Act and the equivalent provisions of any other applicable securities
legislation, each of which are incorporated herein by reference, mutatis
mutandis.
These contractual rights of action, rescission and withdrawal are in addition to
and without derogation from any other right available at law to the Purchaser.
The Purchaser should refer to all applicable provisions of the securities
legislation of the Purchaser's jurisdiction of residence for the particulars of
these rights and consult with a legal advisor.
7. Powers of Attorney
7.1 The Purchaser hereby irrevocably appoints any officer of the Company to act
as its true and lawful attorney-in-fact to represent it at the Closing for the
purpose of all closing matters and deliveries of documents and payments of funds
and the Purchaser hereby authorizes Company to make, on the Purchaser's behalf,
minor corrections or amendments to this Subscription Agreement and any documents
provided by the Purchaser or any provision thereof as in the Company in its
absolute discretion may deem appropriate.
- 14 -
8. Indemnity
8.1 The Purchaser agrees to indemnify and hold harmless the Company and its
respective directors, officers, employees, advisers and shareholders from and
against any and all loss, liability, claim, damage and expense whatsoever
including, but not limited to, any and all fees, costs and expenses whatsoever
reasonably incurred in investigating, preparing or defending against any
litigation, administrative proceeding or investigation commenced or threatened
or any claim whatsoever arising out of or based upon any representation or
warranty of the Purchaser contained herein or in any document furnished by the
Purchaser to the Company in connection herewith being untrue in any material
respect or any breach or failure by the Purchaser to comply with any covenant or
agreement made by the Purchaser herein or in any document furnished by the
Purchaser to the Company in connection herewith.
9. Closing
9.1 The Purchaser acknowledges and agrees that the closing of the transactions
contemplated hereby will be completed at the place and in the manner and at such
other time as the Company may determine (being the "Time of Closing" and the
"Closing Date", respectively).
10. General
10.1 For the purposes of this Subscription Agreement, time is of the essence.
10.2 This offer is made for valuable consideration and may not be withdrawn,
cancelled, terminated or revoked by the Purchaser.
10.3 Neither this Subscription Agreement nor any provision hereof shall be
modified, changed, discharged or terminated except by an instrument in writing
signed by the party against whom any waiver, change, discharge or termination is
sought.
10.4 The parties hereto shall execute and deliver all such further documents and
instruments and do all such acts and things as may either before or after the
execution of this Subscription Agreement be reasonably required to carry out the
full intent and meaning of this Subscription Agreement.
10.5 This Subscription Agreement shall be subject to, governed by and construed
in accordance with the laws of British Columbia.
10.6 This Subscription Agreement may not be assigned by any party hereto.
10.7 The Company shall be entitled to rely on delivery of a facsimile copy of
this Subscription Agreement, and acceptance by the Company of a facsimile copy
of this Subscription Agreement shall create a legal, valid and binding agreement
between the Purchaser and the Company in accordance with its terms.
- 15 -
10.8 This Subscription Agreement may be signed by the parties in as many
counterparts as may be deemed necessary, each of which so signed shall be deemed
to be an original, and all such counterparts together shall constitute one and
the same instrument.
IN WITNESS WHEREOF the Purchaser has duly executed this Subscription Agreement
as of the date first written above.
Xxxxxxx Xxxxx Xxxxxxxxxx
Xxxxxxxxx Xxxxxxxxxx
----------------------------------------
Name of the Purchaser
By:/s/ M. C. Bousefield
-------------------------------------
/s/ Xxxxxxxxx Xxxxxxxxxx
-------------------------------------
Signature of Purchaser
-------------------------------------
Title (if applicable)
ACCEPTANCE
The above mentioned Subscription Agreement is hereby accepted by and agreed to
by the Company this ____ day of ______________, 1997.
IDAHO CONSOLIDATED METALS CORP.
By:
-------------------------------------
Xxxxxxx Xxxxxxx, President and CEO
- 16 -
SCHEDULE "A" TO THE SUBSCRIPTION AGREEMENT
TO BE COMPLETED BY THE PURCHASER
A. Number of Units: The total number of Units subscribed for under this
Subscription Agreement is as follows:
------- Units
B. Amount of Subscription Funds: The total subscription amount (the "Purchaser's
Subscription Funds") for the Units subscribed for under this Subscription
Agreement is as follows:
$-------------
C. Name and Address of Purchaser: The name and address of the Purchaser is as
follows:
Name: ---------------------------------
Address: ------------------------------
------------------------------
D. Name and Address of Beneficial Purchaser: The name(s) and address(es) of any
beneficial purchasers for whom the Purchaser is purchasing as agent or trustee
are set forth below (or, if additional space is needed, are set forth in an
attachment hereto):
Name: ---------------------------------
Address: ------------------------------
------------------------------
E. Registration Instructions: The name(s) and address(es) of the person(s) in
whose name(s) the Purchaser's Units are to be registered, if other than as set
forth in paragraph C above, are as follows (or, if additional space is needed,
are set forth in an attachment hereto):
Name: ---------------------------------
Address: ------------------------------
------------------------------
F. Delivery Instructions: The name and address of the person to whom the
certificates representing the Purchaser's Units referred to in paragraph A above
are to be delivered, if other than as set forth in paragraph C above, is as
follows:
Name: ---------------------------------
Address: ------------------------------
------------------------------
SCHEDULE "B" TO THE SUBSCRIPTION AGREEMENT
VANCOUVER STOCK EXCHANGE
PRIVATE PLACEMENT QUESTIONNAIRE AND UNDERTAKING
TO BE COMPLETED BY ALL SUBSCRIBERS
1. DESCRIPTION OF TRANSACTION
(a) Name of issuer of the securities: Idaho Consolidated Metals Corp.
(b) Number and description of securities to be purchased:
------ Units where each Unit consists of one common share and one
share purchase warrant of the Issuer. One warrant will entitle the
holder to purchase one additional common share of the Issuer for a
period of two years from the Closing Date at the price of CDN$0.60 per
share in the first year and $0.70 per share in the second year.
(c) Purchase price: $0.60 per Unit.
2. DETAILS OF PURCHASER
(a) Name of purchaser: -----------------------------------
(b) Address: -----------------------------------
-----------------------------------
-----------------------------------
(c) If the purchaser is a corporation, state the jurisdiction of
incorporation:
N/A ----- or in the jurisdiction of ------------------.
(d) Names and address of persons having a greater than 10% beneficial
interest in the purchaser, if a corporation:
N/A ----- or ------------------------------------.
3. RELATIONSHIP TO LISTED COMPANY
(a) State if purchaser will become a control person with over 20% of the
company's issued share capital as a result of the purchase in section
1 above:
YES ------ NO ------
(b) Does the purchaser own any securities of the issuer at the date
hereof, if so, give particulars. State the number of securities of the
listed company held by the purchaser not including the purchase in
section 1 above:
---------------------------------------------------------------------
---------------------------------------------------------------------
4. PAYMENT DATE
(a) State the date the purchaser has advanced full payment:
----------------------------.
(b) If the purchase funds are held in trust pending receipt of final
regulatory approval identify the trustee and give particulars of the
condition(s) required for release of the funds: not applicable.
(c) If the purchaser is an institutional investor and the funds have not
yet been advanced, give particulars of the condition(s) required for
the advance of funds: not applicable.
5. UNDERTAKING
TO: THE VANCOUVER STOCK EXCHANGE
The undersigned has subscribed for and agreed to purchase, as principal, the
Securities described in section 1 of this Private Placement Questionnaire and
Undertaking. (The purchase funds may be deposited in trust with advancement to
the Company subject only to receipt of all necessary regulatory approvals).
The undersigned undertakes not to sell or otherwise dispose of any of the said
securities so purchased or any securities derived therefrom for a period that
ends on the earlier of:
(a) twelve months from the payment date; and
(b) the date that a receipt for a final prospectus relating to the said
securities or any securities derived therefrom has been issued by the
British Columbia Securities Commission,
without the prior consent of the Vancouver Stock Exchange and any other
regulatory body having jurisdiction. The undersigned acknowledges that all
certificates representing the said securities will bear a legend to the effect
that the certificates are subject to such hold period.
The undersigned hereby certifies that the said Securities are not being
purchased as a result of any material information about the Company's affairs
that has not been publicly disclosed. The undersigned acknowledges that it is
aware that the removal from the Securities of any resale restriction after
twelve months that is imposed solely as a requirement of the Vancouver Stock
Exchange will not entitle it to sell the Securities if such sale would
contravene any other applicable securities legislation or regulation.
6. ADDITIONAL UNDERTAKING - PORTFOLIO MANAGER
If the undersigned is a portfolio manager purchasing as agent for accounts that
are fully managed by it, the undersigned acknowledges that it is bound by the
provisions of the Securities Act (British Columbia) (the "Act"), and undertakes
to comply with all provisions of the Act relating to ownership of, and trading
in, securities including, without limitation, the filing of insider reports and
reports pursuant to Section 111 of the Act.
If the undersigned carries on business as a portfolio manager in a jurisdiction
outside of Canada, the undersigned certifies that:
(a) it is purchasing securities of the Issuer on behalf of managed
accounts over which it has absolute discretion as to purchasing and
selling, and in respect of which it receives no instructions from any
person beneficially interested in such accounts or from any other
person;
(b) it carries on the business of managing the investment portfolios of
clients through discretionary authority granted by those clients (a
"portfolio manager" business) in ______________ [jurisdiction], and it
is permitted by law to carry on a portfolio manager business in that
jurisdiction;
-2-
(c) it is not created solely or primarily for the purpose of purchasing
securities of the Issuer;
(d) the total asset value of the investment portfolios it manages on
behalf of clients is not less than $20,000,000;
(e) it does not believe, and has no reasonable grounds to believe, that
any resident of British Columbia has a beneficial interest in any of
the managed accounts for which it is purchasing; and
(f) the Issuer has provided it with a list of the directors, senior
officers and other insiders of the Issuer, and the persons that carry
on investor relations activities for the Issuer (which list is
attached as a schedule to this Appendix), and it does not believe, and
has no reasonable grounds to believe, that any of those persons has a
beneficial interest in any of the managed accounts for which it is
purchasing, except as follows:
----------------------------------------
-----------------------------------------
(name of insider(s) or person(s) carrying
on investor relations activities for the
Issuer that have a beneficial interest in
an account)
The undersigned acknowledges that it is bound by the provisions of the Act
including, without limitation, sections 87 and 111 concerning the filing of
insider reports and reports of acquisitions.
Dated at ---------------------------
this ----- day of ------------------, 1997
-------------------------------------
(Name of Purchaser - please print)
-------------------------------------
(Authorized Signature)
-------------------------------------
(Official Capacity - please print)
--------------------------------------
(please print name of individual whose
signature appears above, if different
from name of purchaser printed above)
- 3 -
SCHEDULE "A" TO THE PRIVATE PLACEMENT QUESTIONNAIRE
AND UNDERTAKING - PORTFOLIO MANAGER
List of Directors, Senior Officers and Insiders of the Issuer
and persons that carry on investor Relations Activities for the Issuer
Directors
Xxxxxxx X. Xxxxxxx
E. Xxx Xxxxxxx
Xxxxxxxx Xxxxxxxxxx
Jag Xxxx
Xxxxxx X. Xxxxx
Officers
Xxxxxxx X. Xxxxxxx - President, Chairman, C.E.O.
Xxxx Xxx - Secretary
Xxxxxxxx X. Xxxxxx - VP, Mining and Exploration, Chief Operating Officer
Xxxxxxx X. Xxxxx - Chief Financial Officer
- 4 -
SCHEDULE "C" TO THE SUBSCRIPTION AGREEMENT
FORM 20A (IP)
Securities Act
Acknowledgement of Individual Purchaser
1. I have agreed to purchase from Idaho Consolidated Metals Corp. (the
"Issuer") ______ Units [number and description of securities] (the
"Securities") of the Issuer.
2. I am purchasing the Securities as principal and, on closing of the
agreement of purchase and sale, I will be the beneficial owner of the
Securities.
3. I [circle one] have/have not received an offering memorandum describing the
Issuer and the Securities.
4. I acknowledge that:
(a) no securities commission or similar regulatory authority has reviewed
or passed on the merits of the Securities, AND
(b) there is no government or other insurance covering the Securities, AND
(c) I may lose all of my investment, AND
(d) there are restrictions on my ability to resell the Securities and it
is my responsibility to find out what those restrictions are and to
comply with them before selling the Securities, AND
(e) I will not receive a prospectus that the British Columbia Securities
Act (the "Act") would otherwise require be given to me because the
Issuer has advised me that it is relying on a prospectus exemption,
AND
(f) because I am not purchasing the Securities under a prospectus, I will
not have the civil remedies that would otherwise be available to me,
AND
(g) the Issuer has advised me that it is using an exemption from the
requirement to sell through a dealer registered under the Act, except
purchases referred to in paragraphs 5(a) and 5(g), and as a result I
do not have the benefit of any protection that might have been
available to me by having a dealer act on my behalf.
5. I also acknowledge that: [circle one]
(a) I am purchasing Securities that have an aggregate acquisition cost of
Cdn$97,000 or more, OR
(b) my net worth, or my net worth jointly with my spouse at the date of
the agreement of purchase and sale of the security, is not less than
$400,000, OR
(c) my annual net income before tax is not less than $75,000, or my annual
net income before tax jointly with my spouse is not less than
$125,000, in each of the two most recent calendar years, and I
reasonably expect to have annual net income before tax of not less
than $75,000 or annual
net income before tax jointly with my spouse of not less than $125,000
in the current calendar year, OR
(d) I am registered under the Act, OR
(e) I am a spouse, parent, brother, sister or child of a senior officer or
director of the Issuer, or of an affiliate of the Issuer, OR
(f) I am a close personal friend of a senior officer or director of the
Issuer, or of an affiliate of the Issuer, OR
(g) I am purchasing securities under section 128(c) ($25,000 - registrant
required) of the Rules, and I have spoken to a person [Name of
registered person: --------------- (the "Registered Person")] who has
advised me that the Registered Person is registered to trade or advise
in the Securities and that the purchase of the Securities is a
suitable investment for me.
6. If I am an individual referred to in paragraph 5(b), 5(c) or 5(d), I
acknowledge that, on the basis of information about the Securities
furnished by the Issuer, I am able to evaluate the risks and merits of the
Securities because: [circle one]
(a) of my financial, business or investment experience, OR
(b) I have received advice from a person [Name of adviser:
----------------------- (the "Adviser")] who has advised me that the
Adviser is:
(i) registered to advise, or exempted from the requirement to be
registered to advise, in respect of the Securities, and
(ii) not an insider of, or in a special relationship with, the Issuer.
The statements made in this report are true.
DATED ------------------------, 1997.
----------------------------------------
Signature of Purchaser
----------------------------------------
Name of Purchaser
----------------------------------------
Address of Purchaser
- 2 -
SCHEDULE "D" TO THE SUBSCRIPTION AGREEMENT
FORM 20A (NIP)
Securities Act
Acknowledgment of Purchaser that is not an Individual
1. -------------------- (the "Purchaser") has agreed to purchase from Idaho
Consolidated Metals Corp (the "Issuer") ------------ Units [number and
description of securities] (the "Securities") of the Issuer.
2. The Purchaser is purchasing the Securities as principal, or is a trust
company, insurer or portfolio manager acting on behalf of fully managed
accounts and is deemed to be purchasing as principal under section 74(1) of
the British Columbia Securities Act (the "Act").
3. On closing of the agreement of purchase and sale, the Purchaser will be the
beneficial owner of the Securities, except where the Purchaser is a trust
company, insurer or portfolio manager acting on behalf of fully managed
accounts under section 74(1) of the Act.
4. The Purchaser [circle one] has/has not received an offering memorandum
describing the Issuer and the Securities.
5. The Purchaser acknowledges that:
(a) no securities commission or similar regulatory authority has reviewed
or passed on the merits of the Securities, AND
(b) there is no government or other insurance covering the Securities, AND
(c) the Purchaser may lose all of its investment, AND
(d) there are restrictions on the Purchaser's ability to resell the
Securities and it is the responsibility of the Purchaser to find out
what those restrictions are and to comply with them before selling the
Securities, AND
(e) the Purchaser will not receive a prospectus that the Act would
otherwise require be given to the Purchaser because the Issuer has
advised the Purchaser that the Issuer is relying on a prospectus
exemption, AND
(f) because the Purchaser is not purchasing the Securities under a
prospectus, the Purchaser will not have the civil remedies that would
otherwise be available to the Purchaser, AND
(g) the Issuer has advised the Purchaser that the Issuer is using an
exemption from the requirement to sell through a dealer registered
under the Act, except purchases referred to in paragraph 6(b), and as
a result the Purchaser does not have the benefit of any protection
that might have been available to the Purchaser by having a dealer act
on the Purchaser's behalf.
6. The Purchaser acknowledges that:
(a) it is a "sophisticated purchaser" as described in paragraph 2 in the
attached Appendix A [circle the applicable subparagraph in paragraph 2
in Appendix A]; OR
(b) the Securities were purchased under section 128(c) ($25,000 -
registrant required) of the Rules and an authorized signatory of the
Purchaser has spoken to a person [Name of registered person:
----------------------- (the "Registered Person")] who has advised the
authorized signatory that the Registered Person is registered to trade
or advise in the Securities and that the purchase of the Securities is
a suitable investment for the Purchaser; OR
(c) the Purchaser is a corporation, all the voting securities of which are
beneficially owned by one or more of:
(i) a close personal friend of a senior officer or director of the
Issuer, or of an affiliate of the Issuer, OR
(ii) a senior officer or director of the Issuer, or of an affiliate of
the Issuer, OR
(iii)a spouse, parent, brother, sister, or child of a senior officer
or director of the Issuer, or of an affiliate of the Issuer.
7. If the Purchaser is referred to in paragraph 6(a), the Purchaser
acknowledges that, on the basis of information about the Securities
furnished by the Issuer, the Purchaser is able to evaluate the risks and
merits of the Securities because: [circle one]
(a) of the financial, business or investment experience of the Purchaser,
OR
(b) the Purchaser has received advice from a person [Name of adviser:
-------------------- (the "Adviser")] who has advised the Purchaser
that the Adviser is:
(i) registered to advise, or exempted from the requirement to be
registered to advise, in respect of the Securities, AND
(ii) not an insider of, or in a special relationship with, the Issuer.
The statements made in this report are true.
DATED the -------- day of -------------------, 1997.
----------------------------------------
Signature of Authorized Signatory of
Purchaser
----------------------------------------
Name and Office of Authorized Signatory
of Purchaser
----------------------------------------
Name of Purchaser
----------------------------------------
Address of Purchaser
Please turn to Appendix A, which is attached to and forms a part of this Form
20A (NIP).
- 2 -
APPENDIX A TO FORM 20A (NIP)
[Circle the applicable subparagraph in paragraph 2.]
"Sophisticated purchaser" means a purchaser that, in connection with a
distribution, gives an acknowledgment under section 135 of the Rules to the
Issuer, where the Issuer does not believe, and has no reasonable grounds to
believe, that the acknowledgment is false, acknowledging both that:
1. the purchaser is able, on the basis of information about the investment
furnished by the Issuer, to evaluate the risks and merits of the
prospective investment because of:
(a) the purchaser's financial, business or investment experience, OR
(b) advice the purchaser receives from a person who is registered to
advise, or is exempted from the requirement to be registered to
advise, in respect of the security that is the subject of the trade
(the "Security") and who is not an insider of, or in a special
relationship with, the Issuer of the Security; AND
2. the purchaser is one of the following [circle one]:
(a) a person registered under the Securities Act, OR
(b) an individual who:
(i) has a net worth, or net worth jointly with the individual's
spouse, at the date of the agreement of purchase and sale of the
Security, of not less than $400,000, OR
(ii) has had in each of the 2 most recent calendar years, and
reasonably expects to have in the current calendar year:
o annual net income before tax of not less than $75,000, OR
o annual net income before tax, jointly with the individual's
spouse, of not less than $125,000; OR
(c) a corporation, partnership or trust that:
(i) has net assets of not less than $400,000, OR
(ii) has had in each of the 2 most recent calendar years, and
reasonably expects to have in the current calendar year, net
income before tax of not less than $125,000, OR
(d) a corporation in which all of the voting shares are beneficially owned
by sophisticated purchasers or of which the majority of the directors
are sophisticated purchasers, OR
(e) a general partnership in which all of the partners are sophisticated
purchasers, OR
(f) a limited partnership in which a majority of the general partners are
sophisticated purchasers, OR
(g) a trust in which all of the beneficiaries are sophisticated purchasers
or the majority of the trustees are sophisticated purchasers.
- 3 -
