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SUBSCRIPTION AGREEMENT
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February 26, 1998
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TO: PURCHASERS OF 5% CUMULATIVE REDEEMABLE CONVERTIBLE
PREFERRED SHARES, SERIES 1
OF ICHOR CORPORATION
MFC Merchant Bank S.A. (the "Dealer") and Ichor Corporation. (the
"Corporation") entered into a purchase agreement dated for reference
February 20, 1998 (the "Purchase Agreement") providing for the purchase from
the Corporation of 250,000 5% Cumulative Redeemable Convertible Preferred
Shares, Series 1 for an aggregate purchase price of $2,500,000 (the
"Purchased Shares"). A copy of the term sheet (the "Term Sheet") outlining
the features of the private placement is attached as Schedule "A" hereto.
The Purchase Agreement provides that the Dealer may arrange for substituted
purchasers of the Purchased Shares on a "private placement" basis, and that
each substituted purchaser will enter into a subscription agreement (the
"Subscription Agreement") in substantially the form of this agreement. Your
acceptance of this letter, as evidenced by your signature below, will
constitute your offer to the Corporation to subscribe for the Purchased
Shares set forth below under the heading "Details of Subscription" on the
terms and conditions contained herein. The Corporation's acceptance of your
offer, as evidenced by the signature of its officer below, will constitute
an agreement between you and the Corporation for you to purchase from the
Corporation and for the Corporation to issue and sell to you such Purchased
Shares on such terms and conditions.
References below to "this Agreement" are to be read as references to the
agreement resulting from the Corporation's acceptance of your offer. You
are referred to below as the "Purchaser".
A. SUBSCRIPTION
The Purchaser subscribes for and agrees to purchase from the Corporation the
Purchased Shares set forth below under the heading "Details of
Subscription". The Purchaser understands that the Purchased Shares
subscribed for form part of the offering made pursuant to the Purchase
Agreement.
B. REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE CORPORATION
By accepting this offer, the Corporation represents, warrants, covenants and
agrees as follows:
1. The Corporation is a corporation duly organized and is validly
subsisting under the laws of Delaware.
2. The Corporation has all necessary corporate power to own or lease its
property and to carry on its business as presently carried on by it and
to execute and deliver this Agreement and the Purchased Shares.
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3. This Agreement has been duly authorized by all necessary corporate
action by the Corporation and constitutes legal, valid and binding
obligations of the Corporation.
4. The Corporation's common shares are quoted through the National
Association of Securities Dealers Authorized Distribution System
SmallCap market and the Corporation will maintain such status, without
default, until the Closing Date.
5. The Corporation's annual audited financial statements for the period
ended December 31, 1996 and its unaudited interim financial statements
for the period ended September 30, 1997 were, at the respective dates of
issue or publication, true and correct in all material respects and were
prepared in accordance with and complied in all material respects with
the laws, regulations, policy statements and rules applicable to such
documents.
6. There has been no material or adverse change in the affairs of the
Corporation since December 31, 1996, and no material or adverse fact
exists in relation to the proposed issue of the Purchased Shares, which
in either case is not generally disclosed.
C. CONDITIONS
The Purchaser's obligation to complete the purchase of the Purchased Shares
contemplated hereby shall be conditional upon the fulfilment either on or
before the Closing Date of the following conditions:
(a) the Purchased Shares will be validly and duly authorized, created
and issued by the Corporation;
(b) the representations and the warranties contained herein are true
and correct and all covenants relating to the Corporation herein
contained and required to be performed and complied with have been
performed and complied with by the Corporation; and
(c) no action or proceeding in the United States shall be pending or
threatened by any person, company, firm, governmental authority,
regulatory body or agency to cease trade, enjoin or prohibit:
(i) the sale of the Purchased Shares to the Purchaser as
contemplated hereby; or
(ii) the right of the Corporation to issue shares on the exercise
by the Purchaser of its right of conversion contained in the
Purchased Shares.
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D. DELIVERY AND PAYMENT
Subject to acceptance by the Corporation of this Agreement, delivery and
payment for the Purchased Shares shall be completed at the offices of the
Dealer at 1:00 p.m. (local time) on or before February 27, 1998 or such
other date, time and place as may be agreed upon in writing by the
Corporation and the Dealer (the "Closing Date"). The Purchaser hereby
appoints the Dealer as its agent to represent it at the closing for the
purposes of all closing matters including, without limitation, to execute
receipts and documents as its agent and to accept delivery of documents and
the Purchased Shares and hereby irrevocably authorizes the Dealer to extend
such period and modify or waive such terms and conditions as may be
contemplated herein or in the Purchase Agreement as the Dealer deems
appropriate in its absolute discretion. The Purchased Shares subscribed for
by the Purchaser will be available for delivery on the Closing Date to the
Dealer by way of a certificate representing the Purchased Shares registered
in the name of the Purchaser, against delivery to the Corporation of the
Purchase Price for the Purchased Shares by certified cheque or bank draft in
U.S. funds or other electronic form of payment satisfactory to the
Corporation, provided that, in the event that the certificates representing
the Purchased Shares are not available for physical delivery on the Closing
Date, the Purchase Price shall be paid to the Corporation pending delivery
of the Purchased Shares. If the certificates representing the Purchased
Shares are not delivered by March 31, 1998, the Dealer may agree to one or
more extensions of time for delivery of the certificates and may modify or
waive such terms relating thereto as the Dealer deems appropriate in its
absolute discretion, or may, at its option, elect to terminate this
agreement whereupon the Purchase Price paid by the Purchaser shall be
returned and the Purchaser shall have no further obligations hereunder.
E. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASER
The Purchaser represents, warrants, covenants and agrees as follows:
1. The Purchased Shares are not being purchased as a result of any material
information about the Corporation's affairs which has not been publicly
disclosed
2. The Purchaser has not received any general solicitation or
advertisement, article, notice or other communication nor has it become
aware of any advertisement in printed media of general and regular paid
circulation, radio and television with respect to the distribution of
the Purchased Shares.
3. The Purchaser acknowledges that the Corporation and its officers and
directors are relying upon the representations and warranties made by
the Purchaser.
4. The Purchased Shares being subscribed for and any rights the Purchaser
may acquire as a Purchased Shares holder of the Corporation will be
acquired for investment purposes and not with a view to a subsequent
offering, sale or distribution thereof and the Purchaser may not
participate, directly or indirectly, in any plan or scheme involving the
resale or distribution of the Purchased Shares or any interest therein.
5. The Purchaser has not received or been provided with an offering
memorandum or similar document, its decision to enter into this
Agreement and to purchase the Purchased Shares has
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not been made upon any verbal or written representation as to fact or
otherwise by or on behalf of the Dealer or any other person and its
decision to enter into this Agreement and purchase the Purchased Shares
set forth herein is based entirely upon information concerning the
Corporation which is publicly available and the Term Sheet.
6. The Purchaser has knowledge and experience in financial and business
affairs as to be capable of evaluating the merits and risks of the
investment and is able to bear the economic risk of loss of the
investment.
7. The Purchaser has been independently advised as to and is aware of the
applicable restrictions on the resale of the Purchased Shares and any
securities issuable upon the conversion thereof under the securities
legislation in the jurisdiction in which the Purchaser may subsequently
trade such securities, and is aware of the risks and other
characteristics of the Purchased Shares and of the fact that the
Purchaser may not be able to resell such securities except in accordance
with applicable securities legislation and regulatory policies and that
the certificates representing such securities will contain a legend to
that effect and the Purchaser agrees to comply with, and not in any
manner violate, any applicable securities laws, rules or regulations in
connection with the purchase, sale, transfer or other disposition of any
of such securities.
8. The Purchaser will execute and deliver all documentation as may be
required by applicable securities legislation to permit the purchase of
the Purchased Shares on the terms and conditions as set forth herein and
will comply with all applicable hold periods and other resale
restrictions as are prescribed by applicable securities legislation.
9. Any questionnaire, statement, certificate, instrument or other documents
delivered by the Purchaser in connection herewith will be considered to
form part of and be incorporated into this Agreement with the same
effect as if each constituted a representation and warranty or covenant
of the Purchaser to the Corporation.
10. The Corporation has not provided the Purchaser with investment, legal or
financial advice or acted as an advisor with respect to the purchase of
the Purchased Shares and the Purchaser is relying solely on its own
professional advisors, if any, for any such advice.
F. RESTRICTIONS UPON TRANSFER
1. The Purchaser understands that the Purchased Shares have not been
registered by the Corporation under the United States Securities Act of
1933 (the "1933 Act") and that the Corporation does not plan, and is
under no obligation to provide for registration of the Purchased Shares
in the future. Offer or sale of the Purchased Shares in the United
States or to a U.S. person would constitute a violation of United States
law unless made in compliance with the registration requirements of the
1933 Act or pursuant to an exemption therefrom. The term "United
States" means the United States of America and includes its territories,
possessions and all areas subject to its jurisdiction; and the term
"U.S. person" has the meaning as defined in Regulation S made under the
1933 Act.
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G. GENERAL PROVISIONS
1. This Agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns. The
Purchaser may, with the consent of the Corporation, acting reasonably,
assign this Agreement to a subsidiary or an affiliate, but any such
assignment shall not relieve the Purchaser from responsibility for
performance of its obligations hereunder.
2. Each of the parties agrees to take all such actions as may be within its
powers as may be necessary or desirable to implement and give effect to
the provisions of this Agreement.
3. Time shall be of the essence.
4. This Agreement shall be governed and enforced in accordance with the
laws of Switzerland, without regard to its conflict of laws and
principles, and the parties hereto agree to submit any dispute hereunder
to the jurisdiction of the courts of the Canton of Geneva.
5. The provisions herein contained constitute the entire agreement between
the parties and supersede all previous communications, representations,
understandings and agreements between the parties with respect to the
subject matter hereof, whether verbal or written.
6. This Agreement may be executed by facsimile in any number of
counterparts, each of which when delivered shall be deemed to be an
original, all of which together shall constitute one and the same
document.
If the foregoing is in accordance with your understanding, please complete
the relevant portions below under the heading "Details of Subscription" and
sign and return the enclosed copy of this letter as soon as possible. The
Purchaser, by such signature, authorizes the Dealer to deliver a copy of
this letter, as the Purchaser's offer, on its behalf to the Corporation.
CONSTABLE INVESTMENTS LTD.
(Name of Purchaser)
/s/ G.A. Xxxxx
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(Signature)
G.A. Xxxxx
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(Name)
Secretary
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(Title)
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DETAILS OF SUBSCRIPTION
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TO: ICHOR CORPORATION
(the "Corporation")
AND TO: MFC MERCHANT BANK S.A.
The undersigned accepts the foregoing and offers to purchase the Purchased
Shares set forth below, on the terms and conditions of the foregoing, from
the Corporation. All references to dollar amounts herein are in United
States dollars.
(a) Number and Aggregate Purchase Price of Purchased Shares:
85,000 Purchased Shares at an Aggregate Purchase Price of $850,000
(b) Name and address of Purchaser: Constable Investments Ltd.
0 Xxxxxxxxx Xxxxx, Xxxxx Xxxxxx
Xx. Xxxxxx, Xxxxxx XX0 0XX
Channel Islands
Signed by: /s/ G.A. Xxxxx
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Secretary
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Office or Title
(c) Registration Instructions:
If there are no instructions below, the certificate for the Purchased Shares
delivered to the Purchaser will be registered in the name of the Purchaser
as set forth immediately above. If registration differs from the name and
address shown above, please so specify:
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(d) Delivery and Payment Instructions (include contact name and telephone
number):
Pay by direction letter from the Purchaser's account with Yorkton
Securities Inc.
(e) Delivery against Payment at:
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Attn: Telephone:
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The foregoing offer is confirmed and accepted by Ichor Corporation this
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day of February, 1998.
By: /s/ Xxx Xxxxxxx
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(Authorized Signatory)
