Exhibit 99.2
8,000,000 Shares
ABER DIAMOND CORPORATION
Common Shares Without Par Value
PURCHASE AGREEMENT
between
▇▇▇▇▇▇▇ & CO. INTERNATIONAL
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ CANADA INC.
and
CIBC WORLD MARKETS INC.
and
SCOTIA CAPITAL INC.
and
UBS SECURITIES CANADA INC.
December 7, 2004
PURCHASE AGREEMENT
December 7, ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
BCE Place
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇
CIBC WORLD MARKETS INC.
BCE Place
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇
SCOTIA CAPITAL INC.
Scotia Plaza
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
P.O. Box 4085, Station "A"
Toronto, ON ▇▇▇ ▇▇▇
▇▇▇▇▇▇
UBS SECURITIES CANADA INC.
BCE Place
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇
Dear Sirs and Mesdames:
▇▇▇▇▇▇▇ & Co. International, a Delaware corporation, ("Tiffany"), proposes
to sell to ▇▇▇▇▇▇▇ ▇▇▇▇▇ Canada Inc. ("▇▇▇▇▇▇▇ ▇▇▇▇▇"), CIBC World Markets Inc.
("CIBC"), Scotia Capital Inc. ("Scotia") and UBS Securities Canada Inc. ("UBS")
(Merrill, CIBC, Scotia and UBS are all collectively referred to herein as the
"Purchasers") 8,000,000 common shares, without par value (the "Shares"), of Aber
Diamond Corporation, a British Columbia corporation ("Aber").
The Shares will be sold to the Purchasers for resale (i) in the United
States without being registered under the Securities Act of 1933, as amended
(the "Securities Act"), to "accredited investors" (as defined in Section
2(a)(15) of the Securities Act) and to "qualified institutional
buyers" as defined in Rule 144A(a)(1) under the Securities Act, (ii) in all
transactions outside the United States in reliance on Regulation S under the
Securities Act ("Regulation S") and (iii) in Canada without filing a prospectus
and in compliance with Canadian securities laws including the rules and
regulations of the Toronto Stock Exchange.
In consideration of the mutual covenants and agreements herein contained
and for other good and valuable consideration (the receipt and sufficiency of
which are hereby acknowledged), Tiffany and each of the Purchasers agree as
follows:
1. Sale and Purchase. Upon the basis of the warranties and representations and
subject to the other terms and conditions herein set forth, Tiffany agrees to
sell to the Purchasers, and the Purchasers agree to purchase from Tiffany, the
Shares at a purchase price of Cdn.$42.00 per share. In consideration of the
Purchasers' agreement to purchase the Shares hereunder, Tiffany agrees to pay a
fee or provide a discount in the amount of 1.5% of the purchase price per share
to the Purchasers at the time of purchase (as defined below). The Purchasers'
obligations to purchase the Shares in accordance with this Agreement shall be
several and not joint in that each of the Purchasers shall severally be
obligated to purchase only the percentage of the aggregate number of Shares set
opposite its name in the attached Schedule 1.
2. Payment and Delivery.
(a) Payment of the purchase price, net of the fees or discount
contemplated in section 1 hereof, in Canadian dollars and/or U.S. dollars
for the Shares shall be made by the Purchasers to Tiffany by wire transfer
in same day funds, against delivery of the certificates representing the
Shares to ▇▇▇▇▇▇▇ ▇▇▇▇▇ on behalf of the Purchasers, to Tiffany's account
as specified in the attached Schedule 2. Such payment shall be made at
10:00 A.M., Toronto time, on December 10, 2004 (unless another time shall
be agreed to by Tiffany and the Purchasers). The time at which such
payment and delivery are actually made is herein sometimes called the
"time of purchase". Certificates for the Shares, along with duly executed
blank share transfer power in respect of the Shares, shall be delivered at
the time of purchase to Davies ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, legal counsel
of the Purchasers.
(b) Each of Tiffany and the Purchasers shall be responsible for its
own legal and out-of-pocket expenses incurred in connection with the
transactions contemplated hereby.
3. Representations and Warranties of Tiffany. Tiffany represents and warrants to
the Purchasers that:
(a) Tiffany is a corporation existing under the laws of the State of
Delaware and has all corporate power and authority necessary to enter into
this Agreement and to sell, assign, transfer and deliver the Shares to the
Purchasers hereunder. This Agreement has been duly authorized, executed
and delivered by Tiffany and is a legal, valid and binding obligation of
Tiffany, enforceable against Tiffany by the Purchasers in accordance with
its terms, except as enforcement may be limited by bankruptcy, insolvency
and other laws affecting the rights of creditors generally and except that
equitable remedies may be granted only in the discretion of a court of
competent jurisdiction.
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(b) The sale of the Shares by Tiffany to the Purchasers hereunder
and the compliance by Tiffany with all of the provisions of this
Agreement: (i) will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under, any
statute, indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which Tiffany is a party; or (ii) result in any
violation of the provisions of (a) the charter or by-laws of Tiffany or
(b) any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over Tiffany except, in
the case of clauses (i) and (ii)(b), for such conflicts, breaches,
violations or defaults as would not impair in any material respect the
ability of Tiffany to sell the Shares to the Purchasers hereunder or
affect the market price or value of such Shares.
(c) Tiffany is the registered and beneficial owner of the Shares
with good and marketable title thereto free and clear of any lien, claim
or encumbrance. Prior to the time of purchase, Tiffany will be the
registered and beneficial owner of the Shares with good and marketable
title thereto free and clear of any lien, claim or encumbrance. Upon
completion of the transactions contemplated hereunder, all of the Shares
will be owned by the Purchasers as beneficial owners of record, with good
and marketable title thereto free and clear of any lien, claim or
encumbrance (other than any lien, claim or encumbrance granted by the
Purchasers).
(d) No person other than the Purchasers have any written or oral
agreement or option or any right or privilege (whether by law, pre-emptive
or contractual) capable of becoming an agreement for the purchase or
acquisition of any of the Shares.
(e) Tiffany has not taken and will not take, directly or indirectly,
any action prohibited by Regulation M under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), in connection with the offer and
sale of the Shares.
(f) Tiffany has not: (i) sold, offered for sale, solicited offers to
buy or otherwise negotiated in respect of, any security (as defined in the
Securities Act) which is or would be integrated with the sale of the
Shares in a manner that would require the registration under the
Securities Act of the Shares; or (ii) offered, solicited offers to buy or
sold the Shares by any form of general solicitation or general advertising
(as those terms are used in Regulation D under the Securities Act).
(g) Tiffany has not engaged and will not engage in any directed
selling efforts (within the meaning of Regulation S) with respect to the
Shares.
(h) Tiffany is not aware of any material adverse change in the
business, financial condition or results of operation of Aber since
October 31, 2004.
(i) Tiffany is not aware of any untrue statement of a material fact
in the information released publicly by Aber or any omission to state a
material fact required to be stated therein or necessary to make the
statements made therein, in the light of the circumstances under which
they were made, not misleading. To the knowledge, information and belief
of Tiffany, all material information relating to the business, operations,
capital or affairs of Aber has been generally disclosed.
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(j) Tiffany has obtained all consents and approvals from, and made
all filings with, governmental or regulatory authorities as may be
necessary for Tiffany to execute and deliver this Agreement and consummate
the transactions contemplated hereby.
(k) The sale of the Shares is not a "control block distribution"
pursuant to National Instrument 62-101 under Canadian securities laws.
4. Representations, Warranties and Covenants of the Purchasers . The Purchasers
propose to offer the Shares for sale upon the terms and conditions set forth in
this Agreement. In connection with the purchase and sale of the Shares, each of
the Purchasers hereby represents and warrants to and agrees with Tiffany that:
(a) It will offer and sell the Shares only: (i) in Canada without
filing a prospectus and in compliance with Canadian securities laws
including the rules and regulations of the Toronto Stock Exchange; (ii) in
the United States, to "accredited investors" and to "qualified
institutional buyers" and (iii) in all transactions outside the United
States, including in Canada, in reliance on Regulation S.
(b) It has not and will not, directly or indirectly, solicit offers
in the United States for, or offer or sell, the Shares by any form of
general solicitation, general advertising (as such terms are used in
Regulation D).
(c) It will not take any action prohibited by Regulation M under the
Exchange Act in connection with the distribution of the Shares.
(d) With respect to offers and sales outside the United States and
Canada:
(i) It understands that no action has been or will be taken in
any jurisdiction by Tiffany that would permit a public offering of
the Shares, or possession or distribution of any offering or
publicity material relating to the Shares, in any country or
jurisdiction where action for that purpose is required.
(ii) It will comply with all applicable laws and regulations
in each jurisdiction in which it acquires, offers, sells or delivers
Shares or has in its possession or distributes any such offering or
publicity material, in all cases at its own expense.
(iii) None of the Purchasers, their affiliates or any person
acting on its or their behalf have engaged or will engage in any
directed selling efforts (within the meaning of Regulation S) with
respect to the Shares.
(iv) Each of the Purchasers: (A) has not offered or sold and,
prior to the date six months after the time of purchase, will not
offer or sell any Shares to persons in the United Kingdom except to
persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or
agent) for the purposes of their businesses or otherwise in
circumstances which have not resulted and will not result in an
offer to the public
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in the United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995; (B) has complied and will comply with
all applicable provisions of the Financial Services ▇▇▇ ▇▇▇▇ with
respect to anything done by it in relation to the Shares in, from or
otherwise involving the United Kingdom; and (C) has only issued or
passed on and will only issue or pass on in the United Kingdom any
document received by it in connection with the issue of the Bonds to
a person who is of a kind described in Article 11(3) of the
Financial Services ▇▇▇ ▇▇▇▇ (Investment Advertisements) (Exemptions)
Order 1996 (as amended) or is a person to whom such document may
otherwise lawfully be issued or passed on.
5. Representations and Warranties at Time of Purchase. All representations and
warranties of each party contained in this Agreement shall be deemed to be
repeated at the time of purchase and shall survive consummation of the
transactions contemplated hereby.
6. Certain Covenants of Tiffany. Tiffany hereby agrees that:
(a) Tiffany will not sell, offer for sale or solicit offers to buy
or otherwise negotiate in respect of any security (as defined in the
Securities Act) that could be integrated with the sale of the Shares in a
manner that would require the registration under the Securities Act of the
offer and sale of the Shares pursuant to this Agreement.
(b) Tiffany will not solicit any offer to buy or offer or sell the
Shares by means of any form of general solicitation or general advertising
(as those terms are used in Regulation D).
(c) With respect to those Shares sold in reliance on Regulation S:
(i) Tiffany has not engaged and will not engage in any directed selling
efforts (within the meaning of Regulation S). Tiffany has complied and
will comply with the requirements of Regulation S.
(d) ▇▇▇▇▇▇▇ will not take any action prohibited by Regulation M
under the Exchange Act in connection with the distribution of the Shares
contemplated hereby.
7. Termination. The obligations of the Purchasers hereunder shall be subject to
termination in the absolute discretion of the Purchasers if at any time prior to
the time of purchase there shall have occurred: (i) a suspension or material
limitation in trading in securities generally on the Toronto Stock Exchange;
(ii) a suspension or material limitation in trading in the shares of common
stock of Aber on the Toronto Stock Exchange; (iii) a general moratorium on
commercial banking activities declared by either Canadian or Ontario authorities
or a material disruption in commercial banking or securities settlement or
clearance services in Canada; or (iv) any other calamity or crisis or any change
in financial, political or economic conditions in Canada or elsewhere, if the
effect of any such event specified in clause (iv) in the judgment of the
Purchasers makes it impracticable or inadvisable to proceed with the offering or
the delivery of the Shares on the terms and in the manner contemplated herein.
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8. Announcements. Tiffany agrees that, unless required by applicable law or
regulation, prior to the time of purchase, it will not make any public
announcement regarding the transactions contemplated hereby without the prior
written consent of the Purchasers, such consent not to be unreasonably withheld
provided that the Purchasers will have the opportunity to comment on any such
proposed public announcement.
9. Effectiveness. This Agreement shall become effective upon the execution and
delivery hereof by the parties hereto.
10. Notices. Except as otherwise herein provided, all statements, requests,
notices and agreements shall be in writing or by facsimile and shall be
sufficient in all respects if delivered or sent to:
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇ Canada Inc.
BCE Place
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇
Fax no.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
(b) CIBC World Markets Inc.
BCE Place
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇
Fax: no.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
(c) Scotia Capital Inc.
Scotia Plaza
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
P.O. Box 4085, Station "A"
▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
Fax no.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
(d) UBS Securities Canada Inc.
BCE Place
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇
Fax no.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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(e) ▇▇▇▇▇▇▇ & Co. International
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇.▇.▇.
Fax no.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
11. Governing Law and Construction. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES. The section headings in this Agreement have
been inserted as a matter of convenience of reference and are not a part of this
agreement.
12. Enurement. This Agreement shall enure to the benefit of and be binding upon
the parties hereto and their respective successors and permitted assigns.
13. Amendments and Waivers. No amendment of this Agreement shall be valid or
binding unless set forth in writing and duly executed by all of the parties
hereto. No waiver of any provision of this Agreement shall constitute a waiver
of any other provision, nor shall any waiver constitute a continuing waiver
unless expressly provided.
14. Further Assurances. Each of Tiffany and the Purchasers shall execute and
deliver, in a timely manner, all such documents, certificates, assurances and
other instruments as may reasonably be required to carry out the provisions of
this Agreement.
15. Counterparts. This Agreement may be signed by the parties in counterparts
which together shall constitute one and the same agreement among the parties.
Delivery of an executed counterpart by facsimile shall be effective as delivery
of a manually executed counterpart thereof.
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If the foregoing correctly sets forth the understanding between Tiffany
and the Purchasers, please so indicate in the space provided below for the
purpose, whereupon this letter and your acceptance shall constitute a binding
agreement between Tiffany and the Purchasers.
Very truly yours,
▇▇▇▇▇▇▇ & CO. INTERNATIONAL
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Secretary
Accepted and agreed to as of the
date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ CANADA INC. CIBC WORLD MARKETS INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director Title: Managing Director
SCOTIA CAPITAL INC. UBS SECURITIES CANADA INC.
By: /s/ J. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: J. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director Title: /s/ Executive Director
