EXHIBIT 4.02 - FORM OF SUBSCRIPTION AGREEMENT - VARIOUS PLACEES
THE COMMON SHARES SUBSCRIBED FOR HEREIN HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, OR ANY UNITED STATES STATE
SECURITIES LAWS AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED, AND APPLICABLE UNITED STATES STATE SECURITIES LAWS.
SUBSCRIPTION FOR COMMON SHARES
------------------------------
TO: Archangel Diamond Corporation Subscription Agreement #_____
#1440 - 000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx U.S.A Date: __________
80202
Attention: Xxxx Xxxxx, Chief Financial Officer
-----------------------------------------------
The undersigned (hereinafter referred to as the "Subscriber") hereby irrevocably
tenders this offer which, upon acceptance in its sole discretion by Archangel
Diamond Corporation (the "Company"), shall constitute a subscription agreement
on the part of the Subscriber to subscribe, purchase and pay for, and on the
part of the Company, to issue and sell to the Subscriber, such number of Common
shares of the Company (the "Common Shares") for such aggregate subscription
amount as set out below, at a price of $0.10 per Common Shares, all on the terms
and subject to the conditions set forth in the "Terms and Conditions of
Subscription for Common Shares" attached hereto, which forms a part hereof
(collectively, the "Subscription Agreement").
_______________________________________________________
Name of Subscriber (please print)
By:____________________________________________________
Signature of Subscriber or authorised signatory
_______________________________________________________
Official Capacity or Title (if applicable, please print)
_______________________________________________________
(Please print name of individual whose signature appears
above if different than the name of the subscriber
printed above.)
_______________________________________________________
Subscriber's Address
_______________________________________________________
_______________________________________________________
( )
_______________________________________________________
Telephone Number
Number of Common Shares: _____________________________
(to be completed by Subscriber)
Subscription Amount: $________________________________
(to be completed by Subscriber)
Social Insurance No. or Federal Corporate/Business
Account No.: _________________________________________
If the Subscriber is signing as agent for a principal and is not a trust company
or, in British Columbia or Alberta, a portfolio manager, in either case,
purchasing as trustee or agent for accounts fully managed by it, complete the
following:
_______________________________________________________
Name of Principal (please print)
_______________________________________________________
Principal's Address
SPECIAL REGISTRATION INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
---------------------------------------------------------------
To be completed ONLY if the certificates for the Common To be completed ONLY if
the certificates for the Common Shares are to be issued in the name of someone
other than Shares are to be sent to someone other than the the persons(s)
indicated above under "Name of Subscriber)". Subscriber or to the Subscriber at
an address other than o Register certificates as follows: that appearing above.
[ ] Mail certificates as follows:
-----------------------------
_______________________________________________________
Name
_______________________________________________________
Address
( )
_______________________________________________________
Telephone
[ ] Hold certificates for pick-up at the offices of the Company.
Please complete required disclosure on next page
--------------------------------------------------------------------------------
SUBSCRIBER DISCLOSURE
(Subscribers should ensure that all blanks herein are completed prior to
delivery to the Company)
(1) Ownership of Voting Stock. The Subscriber (select one):
[ ] owns directly or indirectly, or exercises control or direction
over, no common shares in the capital stock of the Company or
securities convertible into common shares in the capital stock of
the Company; or
[ ] owns directly or indirectly, or exercises control or direction
over, _______________ common shares in the capital stock of the
Company and convertible securities entitling the Subscriber to
acquire an additional _______________ common shares in the capital
stock of the Company.
(2) Insider Status. The Subscriber (select one):
--------------
Note: For the purposes of this paragraph the term "Insider" means: (a) a
director or senior officer of the Company; (b) a director or senior officer
of a company that is itself an insider or subsidiary of the Company; (c) a
person that beneficially owns or controls, directly or indirectly voting
shares of the Company carrying more than 10% of the voting rights attached
to all the Company's outstanding voting shares, or (d) the Company itself
if it holds any of its own securities of its own .
[ ] is an Insider of the Company as defined in the policies of the
Exchange; or
[ ] is not an Insider of the Company as defined in the policies of the
Exchange.
(3) Pro Group Status. The Subscriber (select one):
----------------
Note: For the purposes of this paragraph the term "Pro Group" includes,
either individually or as a group, (a) the member (i.e. a member of the TSX
Venture Exchange under the Exchange requirements); (b) employees of the
member; (c) partners, officers and directors of the member; (d) affiliates
of the member; and (e) associates of any parties referred to in
subparagraphs (a) through (d). The Exchange may, in its discretion, include
a person or party in the Pro Group for the purposes of a particular
calculation where the Exchange determines that the person is not acting at
arm's length of the member and may, in its discretion, exclude a person
from the Pro Group for the purposes of a particular calculation where the
Exchange determines that the person is acting at arm's length of the
member. The member may deem a person who would otherwise be included in the
Pro Group to be excluded from the Pro Group where the member determines
that: (a) the person is an affiliate or associate of the member acting at
arm's length of the member; (b) the associate or affiliate has a separate
corporate and reporting structure; (c) there are sufficient controls on
information flowing between the member and the associate or affiliate; and
(d) the member maintains a list of such excluded persons.
[ ] is a member of the Pro Group as defined in the policies of the
Exchange; or
[ ] is not a member of the Pro Group as defined in the policies of the
Exchange.
(4) Control Person Status. The Subscriber (select one):
---------------------
Note: For the purposes of this paragraph the term "control person" means:
(a) a person who holds a sufficient number of voting rights attached to all
outstanding voting securities of the Company to affect materially the
control of the Company; (b) each person in a combination of persons, acting
in concert by virtue of an agreement, arrangement, commitment or
understanding, which holds in total a sufficient number of the voting
rights attached to all outstanding voting securities of the Company to
affect materially the control of the Company or a person or combination of
persons, acting in concert by virtue of an agreement, arrangement,
commitment or understanding, holding more than 20% of the voting rights
attached to all outstanding voting securities of the Company.
[ ] is a "control person" of the Company as defined in the B.C. Securities
Act, or shall become a control person by virtue of this purchase of the
Common Shares; or
[ ] is not a "control person" of the Company as defined in the B.C.
Securities Act, shall not become a control person by virtue of this
purchase of the Common Shares and does not intend to act in concert with
any other person to form a control group.
(5) Non-Individual Subscribers. If the Subscriber or any principal thereof is
---------------------------
not an individual, the Subscriber or such principal has (select one):
[ ] previously filed with the TSX Venture Exchange Inc. (the "Exchange") a
Form 4D or Form 4D1, Corporate Placee Registration Form in the form
accompanying this Subscription Agreement, and represents and warrants
that there has been no change to any of the information in the
Corporate Placee Registration Form previously filed with the Exchange
up to the date of this Subscription Agreement; or
[ ] delivered a completed Form 4D1, Corporate Placee Registration Form in
the form accompanying this Subscription Agreement to the Company for
filing with the Exchange with this Subscription Agreement.
--------------------------------------------------------------------------------
ACCEPTANCE: The Company hereby accepts the above subscription as of the ___ day
of December, 2002.
Archangel Diamond Corporation
By:________________________________________
Title______________________________________
THE FOLLOWING ARE THE TERMS AND CONDITIONS OF SUBSCRIPTION
FOR COMMON SHARES REFERRED TO ON THE FACE PAGE HERETO
1. Subscription Procedure.
1.1. The Subscriber shall deliver a certified cheque or bank draft payable to
Archangel Diamond Corporation, by no later than 10:00 a.m. (Denver time) on or
before [*date] to the address of the Company set forth on the first page of this
Subscription Agreement in an amount equal to the Subscription Amount, together
with:
(a) two duly completed and originally executed copies of this Subscription
Agreement;
(b) if the Subscriber is an U.S. Person and an individual, a duly completed
Investor Questionnaire in the form accompanying this Subscription
Agreement; and
(c) if the Subscriber is not an individual, and has not previously filed such a
form with the Exchange, a Form 0X Xxxxxxxxx Xxxxxx Registration Form in the
form accompanying this Subscription Agreement;
and such other documents as the Company may reasonably require to be delivered
in connection with this Subscription Agreement.
1.2. Completion of the transactions contemplated hereby (the "Closing") shall
occur at the offices of the Company at the address of the Company set forth on
the first page of this Subscription Agreement at 10:00 a.m. (Denver time) on
[*date], or such other date as the Subscriber and the Company may agree upon
(the "Time of Closing"). The Subscriber's Subscription Amount and any other
documents delivered in connection herewith will be held by the Company in escrow
until Closing.
1.3. At the Closing, the Company is hereby irrevocably authorized and directed
to release this subscription, and any other documents delivered in connection
herewith, and pay to the Company, in accordance with the terms of this
Subscription Agreement, an amount equal to the Subscription Amount. The Company
shall then issue and sell the Common Shares to the Subscriber and cause a
definitive certificate representing the Common Shares to be issued and
registered, and to be delivered to the Subscriber, in accordance with the
registration and delivery instructions set forth on the first page of this
Subscription Agreement.
1.4. If this subscription is not accepted by the Company or the Closing has not
occurred by [*date], this subscription and any other documents delivered in
connection herewith shall be returned to the Subscriber in accordance with the
delivery instructions set forth on the first page of this Subscription Agreement
together with the Subscription Amount without interest or deduction.
1.5. Unless designated to be picked-up by the Subscriber, all certificates
representing the Common Shares shall be delivered by courier or registered mail
at the option of the Company in accordance with the registration and delivery
instructions set forth on the first page of this Subscription Agreement. The
Subscriber acknowledges that it accepts the risks of such delivery and waives
any claim against the Company and its directors, officers, employees and agents
for theft or loss.
2. Representations and Warranties of the Subscriber. The Subscriber represents
and warrants to the Company (which representations and warranties shall survive
the closing of the transactions contemplated by this Subscription Agreement and
continue indefinitely) as follows:
Note: For the purposes of this Section 2 the term "individual" means a natural
person, but does not include a partnership, unincorporated organization or
trust, or a natural person in his capacity as a trustee, executor, administrator
or person or other legal representative.
3
(a) Residence. The Subscriber is resident in the province or jurisdiction set
forth in the Subscription Agreement as the "Subscriber's Address" below its
signature as set forth on the first page hereof and if the Subscriber is
acting as agent for a disclosed principal/beneficial purchaser, such
disclosed principal/beneficial purchaser is resident in the jurisdiction
set forth in the Subscription Agreement as the "Principal's Address" of the
principal/beneficial purchaser and the purchase by and sale to it of the
Common Shares and any act, solicitation, conduct or negotiation directly or
indirectly in furtherance of such purchase and sale (whether to it or to
any beneficial purchaser for whom it may be acting) has occurred only in
such jurisdiction. If other than an individual, the Subscriber has not been
organized for the purpose of acquiring the Common Shares.
(b) Canadian Accredited Investor. If the Subscriber is a resident of Canada,
the Subscriber is purchasing the Common Shares as principal for its own
account not for the benefit of any other person and not with a present view
or intention to the re-sale or distribution of such Securities, and the
Subscriber is an "accredited investor" as defined in Multilateral
Instrument 45-103 of the Canadian Securities Administrators (the
"Multilateral Instrument"). Specifically, the Subscriber satisfies one or
more of the categories included in the definition "accredited investor" as
set out in subsection 1.1 of the Multilateral Instrument which is set out
as Schedule "A" hereto.
(c) United States Accredited Investor. If the Subscriber is a U.S. person (as
such term is defined in Regulation S under the United States Securities Act
of 1933, as amended), the offer to subscribe for the Common Shares was made
to the Subscriber when it was in the United States or at the time the
Subscriber entered into this Subscription Agreement the Subscriber was
within the United States, the Subscriber is purchasing the Shares as
principal for its own account not for the benefit of any other person and
not with a present view or intention to the re-sale or distribution of such
Securities, and the Subscriber is an "accredited investor" within the
meaning of Securities and Exchange Commission Rule 501 of Regulation D, as
presently in effect.
(d) International Securities Laws. If the Subscriber is resident of a
jurisdiction ("International Jurisdiction") other than Canada or the United
States then: (i) the Subscriber 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 Subscriber is purchasing the Common Shares 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 Subscriber is permitted to purchase the Common
Shares under the applicable securities laws of the International
Jurisdiction without the need to rely on such exemptions; (iii) the
applicable securities laws of the International Jurisdiction 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 purchase of the Common Shares by
the Subscriber does not trigger under the laws of the International
Jurisdiction any obligation to prepare and file a prospectus or similar
document, or any other report with respect to such purchase; the Subscriber
shall, if requested by the Company, deliver to the Company a certificate or
opinion of local counsel from the International Jurisdiction which shall
confirm the matters referred to in paragraph (d) to the satisfaction of the
Company, acting reasonably.
(e) Offering Memorandum. The Subscriber was not provided an offering memorandum
in connection with the offering of the Common Shares.
(f) Disclosure. The Subscriber reasonably believes it has received all the
information it considers necessary or appropriate for deciding whether to
purchase the Common Shares and that it has had an opportunity to ask
questions and receive answers from the Company regarding the terms and
conditions of the offering of the Common Shares and the business,
properties, prospects and financial condition of the Company. No documents
have been furnished to the Subscriber in connection with the offering of
the Common Shares except for this Subscription Agreement.
4
(g) No Representations. The Subscriber's decision to tender this offer and
purchase the Common Shares has not been made as a result of any oral or
written representation as to fact or otherwise made by or on behalf of the
Company except as set out in this Subscription Agreement. No person has
made to the Subscriber any written or oral representations to the
Subscriber: (i) that any person shall resell or repurchase the Common
Shares, (ii) that any person shall refund the Subscription Amount, (iii) as
to the future price or value of the Common Shares, or (iv) that the Common
Shares shall be listed and posted for trading on a stock exchange or that
application has been made to list and post the Common Shares for trading on
a stock exchange.
(h) Absence of Advertising. The Subscriber is not acquiring the Common Shares
as a result of, and to the best of the Subscriber's knowledge the offer and
sale of the Common Shares is not being accompanied by, an advertisement in
any medium, including, but not limited to, printed public media, radio,
television or telecommunications, including electronic display and no
selling or promotional expenses have been paid or incurred in connection
with the offer and sale.
(i) Re-sale Restrictions. The Subscriber has been independently advised as to
the restrictions on the Subscriber's ability to transfer or re-sell the
Common Shares and, in particular, that the Common Shares are subject to a
hold period in accordance with applicable securities laws and that the
certificates representing the Common Shares shall bear legends denoting
such re-sale restrictions. The Subscriber is familiar with Multilateral
Instrument 45-102 of the Canadian Securities Administrators and, if the
Subscriber is a U.S. person, Securities and Exchange Commission Rule 144 of
the SEC, as presently in effect, and understands the resale limitations
imposed thereby and by applicable securities legislation and Exchange rules
and policies.
(j) Tax Advice. The Subscriber has consulted the Subscriber's own independent
advisors as to the income tax consequences and the suitability of
purchasing the Common Shares and is not relying on any representations or
warranties made by the Company or its advisors with respect to the income
tax consequences and suitability of purchasing such Securities.
(k) Authorization. The Subscriber has the necessary capacity and authority to
execute and deliver this offer for subscription of Common Shares of the
Company and, upon acceptance by the Company, to observe and perform its
covenants and obligations hereunder and has taken all necessary action,
corporate or otherwise, in respect thereof.
(l) Authorization of Agent. If the Subscriber has subscribed for Common Shares
as agent for a disclosed principal, the Subscriber is duly authorized to
execute and deliver this offer for subscription of Common Shares of the
Company and all other necessary documentation in connection with such
subscription on behalf of such principal and this offer for subscription of
Common Shares of the Company has been duly authorized, executed and
delivered by or on behalf of, such principal and upon acceptance by the
Company this offer for subscription of Common Shares of the Company
constitutes a legal, valid and binding contract of the principal
enforceable against such principal in accordance with its terms.
(m) Effectiveness. Upon acceptance by the Company this offer for subscription
of Common Shares of the Company constitutes a legal, valid and binding
contract of the Subscriber enforceable against the Subscriber in accordance
with its terms.
(n) Time of Closing. The representations and warranties in this Section 2 are
true, accurate and correct and shall remain so as of the Time of Closing as
defined herein.
3. Acknowledgements and Covenants of the Subscriber. The Subscriber acknowledges
to and agrees with the Company (which covenants shall survive the closing of the
transactions contemplated by this Subscription Agreement and continue
indefinitely) that:
5
(a) Canadian Exempt Distribution. As the sale of the Common Shares to the
Subscriber is being completed pursuant to exemptions from the requirements
to provide the Subscriber with a prospectus and to sell the securities
subscribed for herein through a person registered to sell securities under
applicable securities legislation:
(i) certain protections, rights and remedies provided by applicable
securities legislation, including statutory rights of rescission or
damages, shall not be available to the Subscriber and the Subscriber
may not receive information that the Subscriber would be entitled to
under applicable securities legislation if no prospectus exemption was
available;
(ii) the Company is relieved of certain obligations which would otherwise
apply under applicable securities legislation;
(iii) there are risks associated with the purchase of the securities,
(iv) there are restrictions on the Subscriber's ability to resell the
securities and it is the responsibility of the Subscriber's to find
out what those restrictions are and to comply with them before selling
the securities,
(v) various filings must be completed and disclosures made to the
securities regulatory authorities having jurisdiction over the
securities of the Company and to the Exchange.
(b) No Regulatory Review. No securities commission or similar regulatory
authority has reviewed or passed on the merits of the Common Shares
subscribed for herein.
(c) No Insurance. There is no government or other insurance covering the Common
Shares subscribed for herein.
(d) Speculative Investment. The Common Shares subscribed for herein are
speculative and represent a high degree of risk, accordingly the Subscriber
or, where it is not purchasing as principal, each beneficial purchaser, has
sufficient knowledge in financial and business affairs as to be capable of
evaluating the merits and risks of the subscription herein; and the
Subscriber, or, where it is not purchasing as principal, each beneficial
purchaser, is able to bear the economic risk of loss of its investment.
(e) Re-sale in Canada. The trade of the Common Shares is being completed
pursuant to exemptions from the requirements to provide the Subscriber with
a prospectus and to sell the securities subscribed for herein through a
person registered to sell securities under applicable Canadian securities
legislation, accordingly the Common Shares are characterized as "restricted
securities" under the applicable Canadian provincial securities laws and
under such laws such Securities may be resold without a person registered
to sell securities or a prospectus only in certain limited circumstances.
It is the responsibility of the Subscriber to find out what the
restrictions on the re-sale are and to comply with them before selling any
Common Shares and the Subscriber acknowledges that the certificates
representing the Common Shares offered hereunder shall bear legends
denoting such re-sale restrictions.
(f) Re-sale in the United States. The Common Shares have not been and shall not
be registered under the United States Securities Act of 1933, as amended or
under the state securities "blue sky" laws of any state in the United
States, accordingly the Common Shares are characterized as "restricted
securities" under the United States federal securities laws and under such
laws and applicable regulations such Securities may be resold without
registration under the United States Securities Act of 1933 only in certain
limited circumstances. The Warrants may not exercised in the United States
or by a U.S. person (as such term is defined in Regulation S under the
United States Securities Act of 1933, as amended) unless the holder, at its
expense, provides the Company with evidence satisfactory in form and
substance to the Company (which may include an opinion of United States
counsel satisfactory to the Company), that registration of the Warrants
6
upon exercise is not required under the United States Securities Act of
1933, as amended or any applicable state securities laws. It is the
responsibility of the Subscriber to find out what the restrictions on the
re-sale are and to comply with them before selling any Common Shares and
the Subscriber acknowledges that each certificate representing the Common
Shares issued in the United States or to such a U.S. person (and each
certificate issued in exchange for or in substitution of any such
certificate) shall bear such legends as may be deemed necessary by the
Company in order to comply with applicable securities laws of the United
States.
(g) Reliance of Representations and Warranties. The representations and
warranties in this Subscription Agreement of the Subscriber shall be relied
upon by the Company in determining, among other things, whether this
Subscription Agreement and the issuance of the Common Shares is in
compliance with applicable securities laws.
(h) Ongoing Professional Advice. The Subscriber is responsible for obtaining
his, her or its own legal, tax and accounting advice with respect to this
Subscription Agreement and the transactions contemplated by it and, in
particular, the Subscriber has been advised to consult his, her or its own
legal advisers in connection with any applicable statutory hold periods or
re-sale restrictions and the Subscriber (or such others on behalf of whom
it is contracting hereunder) is solely responsible for compliance with
applicable hold periods or re-sale restrictions.
(i) Documentation. The Subscriber shall complete, sign and deliver all
documentation required by applicable securities laws in connection with
this Subscription Agreement, executed as and when required. The Subscriber
is aware that the Company is required by law to disclose to certain
securities regulatory authorities the identity of each beneficial purchaser
of the Common Shares and notwithstanding that the Subscriber may be
purchasing the Common Shares as agent for an undisclosed principal, it
shall provide, on request, particulars as to the identity of such
undisclosed principal as may be required by the Company (in order to comply
with the foregoing).
(j) Exchange Acceptance. The subscription by the Subscriber is subject to the
acceptance of the Exchange and the Subscriber agrees to provide the Company
with such documents and information as may be required by Exchange policy
or reasonably requested by the Exchange and agrees that the failure to do
so, whether such failure results in delays or in the refusal of the
Exchange to accept this subscription, shall not constitute a default of the
Company under this Subscription Agreement.
(k) Obligations of the Company. The subscription by the Subscriber is subject
to the acceptance of the Company and is effective only upon such
acceptance, such subscription of the Subscriber hereunder is part of a
larger offering of Common Shares by the Company and the Subscription Amount
shall be added to the Company's working capital and used in the discretion
of the Company for the purposes of its business.
4. Representations and Warranties of the Company. The Company, upon acceptance
of this offer for subscription of Common Shares, represents and warrants to the
Subscriber (which representations and warranties shall survive the closing of
the transactions contemplated by this Subscription Agreement and continue
indefinitely) as follows:
(a) Organization, Good Standing and Capacity. The Company is duly incorporated
and validly existing under the laws of British Columbia and has all
necessary corporate power and authority to own or lease its assets and
carry on its business as presently carried on and is duly licensed and
qualified to carry on its business in each jurisdiction in which the
location of its assets requires such license or qualification.
(b) Due Authorization, etc. The Company has all necessary corporate power,
authority and capacity to enter into this Subscription Agreement and to do
all such acts and things as are required to be done, observed or performed
7
by it, in accordance with the terms of this Subscription Agreement. The
Company has taken all necessary action to authorize the execution, delivery
and performance of this Subscription Agreement and to observe and perform
the provisions of each in accordance with their terms.
(c) Listing. The Common shares of the Company are listed for trading only on
the Exchange, the Company meets or exceeds the listing maintenance
requirements set forth in the policies of the Exchange, or order or
declaration has been made or requested by the Exchange or the Company that
the trading in the Common shares of the Company be declared inactive and no
process or order ceasing the trading of the Common shares of the Company
has been commenced or issued by the Exchange.
(d) Reporting Issuer Status. The Company is a reporting issuer, as such term is
defined in the applicable securities legislation, only in Provinces of
British Columbia, Alberta and Ontario and is not in default of filing
financial statements required by such applicable securities legislation or
paying prescribed fees and charges related thereto.
(e) Cease Trade Orders. No order ceasing or suspending trading in securities of
the Company nor prohibiting the sale of such securities has been issued to
the Company or its directors, officers or promoters or to any other
companies that have common directors, officers or promoters and no
investigations or proceedings for such purposes are pending or threatened.
(f) Valid Allotment and Issue. Upon receipt of the Subscription Amount by the
Company from the Subscriber at the Closing (as defined herein), the Common
Shares shall be duly and validly created, authorized, and issued and upon
receipt of payment therefor shall be issued as fully paid and
non-assessable shares, in compliance with all securities laws; the
Subscriber shall be the legal and beneficial owner thereof, free and clear
of all pre-emptive rights, mortgages, liens, charges, security interests,
adverse claims, pledges and demands whatsoever arising by reason of the
acts or omissions of the Company.
(g) Time of Closing. The representations and warranties in this Section 4 are
true, accurate and correct and shall remain so as of the Time of Closing as
defined herein.
5. Acknowledgements and Covenants of the Company. The Company acknowledges to
and agrees with the Subscriber that on or before the Closing, the Company shall
file all documents and take all proceedings required to be taken by it to permit
the Common Shares to be distributed to the Subscriber in compliance with all
applicable securities and corporate laws.
6. Indemnity of Company. The Subscriber shall defend, indemnify and hold the
Company harmless from and against all claims, actions, damages, fines and
expenses arising out of or resulting in any way from any material
misrepresentation, inaccuracy, incorrectness or breach of any representation or
warranty made by the Subscriber contained in this Subscription Agreement or
contained in any document or certificate given in order to carry out the
transactions contemplated hereby.
7. Notice. Unless otherwise provided herein, any notice or other communication
to a party under this Subscription Agreement may be made, given or served by
registered mail, postage pre-paid, by facsimile or by delivery to the parties at
the addresses as set out on the first page of this Subscription Agreement. Any
notice or other communication:
(a) mail communication shall be deemed to have been received on the fifth
business day following its mailing;
(b) facsimile communication shall be deemed to have been received on the
business day following the date of transmission; and
(c) personal delivery communication shall be deemed to have been received on
the date of delivery.
8
In the event of a postal strike or delay affecting mail delivery, the date of
receipt of any notice by mail is deemed to be extended by the length of such
strike or delay. Each party may change its address for service at any time by
providing notice in writing of such change to the other party.
8. General.
8.1. In this Subscription Agreement:
(i) the division into sections and the insertion of headings are for
convenience of reference only and shall not affect the construction or
interpretation of this Subscription Agreement; the terms "this
Subscription Agreement", "hereof", "hereunder" and similar expressions
refer to this Subscription Agreement and not to any particular
section, paragraph or other portion hereof and include any agreement
supplemental hereto; and unless something in the subject matter or
context is inconsistent therewith, references herein to sections and
paragraphs are to sections and paragraphs of this Subscription
Agreement;
(ii) words importing the singular number only shall include the plural and
vice versa, words importing the masculine gender shall include the
feminine and neuter genders and vice versa and words importing persons
shall include individuals, partnerships, associations, trusts,
unincorporated organizations and corporations;
(iii)reference is made to a calculation to be made in accordance with
generally accepted accounting principles (referred to herein as
"GAAP"), such reference shall be deemed to be to the generally
accepted accounting principles from time to time approved by the
Canadian Institute of Chartered Accountants, or any successor
institute, applicable as at the date on which such calculation is made
or required to be made in accordance with GAAP; and
(iv) unless otherwise indicated, all references to currency herein are to
lawful money of Canada.
8.2. The Subscriber covenants and agrees to execute and deliver such further
agreements, documents and writings and provide such further assurances as may be
required by the Company to give effect to this Subscription Agreement and,
without limiting the generality of the foregoing, to do all acts and things,
execute and deliver all documents, agreements and writings and provide such
assurances, undertakings, information, pooling agreements and investment letters
as may be required from time to time by any stock exchange or securities
commission having jurisdiction over the securities of the Company.
8.3. This Subscription Agreement is deemed to have been made in Denver, Colorado
and shall be governed by the laws of the State of Colorado, and each of the
parties hereby irrevocably submits to the exclusive jurisdiction of the courts
of the State of Colorado.
8.4. The rights which accrue to the Company under this Subscription Agreement
shall pass to its successors or assigns. The rights of the Subscriber under this
Subscription Agreement are not assignable or transferable in any manner. This
Subscription Agreement shall be binding upon the heirs, executors,
administrators and legal personal representatives of the Subscriber and, when
accepted by the Company, the successors and permitted assigns of the Company
respectively.
8.5. Time is of the essence of this Subscription Agreement.
8.6. This Subscription Agreement supersedes all prior negotiations between the
parties with respect to the matters herein referred to and contains the entire
agreement between the parties hereto and may be modified only by an instrument
in writing signed by the party against whom modification is asserted. There have
not been any inducements, representations or warranties made by the Company or
by any of its directors, officers, employees or agents upon which the Subscriber
has relied on in entering into this Subscription Agreement.
9
Schedule "A"
Subsection 1.1 of Multilateral Instrument 45-103
------------------------------------------------
1.1 In this instrument
"accredited investor" means:
(a) a Canadian financial institution, or an authorized foreign bank listed in
Schedule III of the Bank Act (Canada),
(b) the Business Development Bank of Canada incorporated under the Business
Development Bank of Canada Act (Canada),
(c) an association under the Cooperative Credit Associations Act (Canada)
located in Canada,
(d) a subsidiary of any person or company referred to in paragraphs (a) to (c),
if the person or company owns all of the voting securities of the
subsidiary, except the voting securities required by law to be owned by
directors of that subsidiary,
(e) a person or company registered under the securities legislation, or under
the securities legislation of another jurisdiction of Canada, as an adviser
or dealer, other than a limited market dealer registered under the
Securities Act (Ontario),
(f) an individual registered or formerly registered under the securities
legislation, or under the securities legislation of another jurisdiction of
Canada, as a representative of a person or company referred to in paragraph
(e),
(g) the government of Canada or a province, or any crown corporation or agency
of the government of Canada or a province,
(h) a municipality, public board or commission in Canada,
(i) any national, federal, state, provincial, territorial or municipal
government of or in any foreign jurisdiction, or any agency of that
government,
(j) a pension fund that is regulated by either the Office of the Superintendent
of Financial Institutions (Canada) or a provincial pension commission or
similar regulatory authority,
(k) a registered charity under the Income Tax Act (Canada),
(l) an individual who, either alone or jointly with a spouse, beneficially
owns, directly or indirectly, financial assets having an aggregate
realizable value that before taxes, but net of any related liabilities,
exceeds $1,000,000,
(m) an individual whose net income before taxes exceeded $200,000 in each of
the two most recent years or whose net income before taxes combined with
that of a spouse exceeded $300,000 in each of the two most recent years and
who, in either case, reasonably expects to exceed that net income level in
the current year,
(n) a corporation, limited partnership, limited liability partnership, trust or
estate, other than a mutual fund or non-redeemable investment fund, that
had net assets of at least $5,000,000 as shown on its most recently
prepared financial statements,
(o) a mutual fund or non-redeemable investment fund that, in the local
jurisdiction, distributes its securities only to persons or companies that
are accredited investors,
(p) a mutual fund or non-redeemable investment fund that, in the local
jurisdiction, distributes its securities under a prospectus for which the
regulator has issued a receipt,
(q) an entity organized in a foreign jurisdiction that is analogous to any of
the entities referred to in paragraphs (a) through (e) and paragraph (j) in
form and function, or
(r) a person or company in respect of which all of the owners of interests,
direct or indirect, legal or beneficial, are persons or companies that are
accredited investors;
Schedule "B"
FORM 4C
-------
CORPORATE PLACEE REGISTRATION FORM
----------------------------------
Where subscribers to a Private Placement are not individuals, the following
information about the placee must be provided. This Form will remain on file
with the Exchange. The corporation, trust, portfolio manager or other entity
(the "Placee") need only file it on one time basis, and it will be referenced
for all subsequent Private Placements in which it participates. If any of the
information provided in this Form changes, the Placee must notify the Exchange
prior to participating in further placements with Exchange listed companies. If
as a result of the Private Placement, the Placee becomes an Insider of the
Issuer, Insiders of the Placee are reminded that they must file a Personal
Information Form (2A) with the Exchange.
1. Placee Information:
(a) Name:
----------------------------------------------------------------
(b) Complete Address:
----------------------------------------------------
(c) Jurisdiction of Incorporation or Creation:
----------------------------
2. (a) Is the Placee purchasing securities as a portfolio manager (Yes/No)?
(b) Is the Placee carrying on business as a portfolio manager outside of
Canada (Yes/No)? __________
3. If the answer to 2(b) above was "Yes", the undersigned certifies that:
(a) It is purchasing securities of an Issuer on behalf of managed accounts
for which it is making the investment decision to purchase the
securities and has full discretion to purchase or sell securities for
such accounts without requiring the client's express consent to a
transaction;
(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;
(c) it was 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; and
(e) it has no reasonable grounds to believe, that any of the directors,
senior officers and other insiders of the Issuer, and the persons that
carry on investor relations activities for the Issuer has a beneficial
interest in any of the managed accounts for which it is purchasing
4. If the answer to 2(a). above was "No", please provide the names and
addresses of control persons of the Placee:
---------------------------------- -------------------------- -------------------------- -----------------------
Name City Province or State Country
---------------------------------- -------------------------- -------------------------- -----------------------
---------------------------------- -------------------------- -------------------------- -----------------------
---------------------------------- -------------------------- -------------------------- -----------------------
---------------------------------- -------------------------- -------------------------- -----------------------
---------------------------------- -------------------------- -------------------------- -----------------------
The undersigned acknowledges that it is bound by the provisions of applicable
Securities Law, including provisions concerning the filing of insider reports
and reports of acquisitions (See for example, sections 87 and 111 of the
Securities Act (British Columbia) and sections 176 and 182 of the Securities Act
(Alberta).
Dated at on
-------------------------------------------- -----------------------
_________________________________
(Name of Purchaser - please print)
_________________________________
(Authorized Signature)
_________________________________
(Official Capacity - please print)
_________________________________
(please print name of individual
whose signature appears above)
THIS IS NOT A PUBLIC DOCUMENT
SCHEDULE "C"
INVESTOR SUITABILITY QUESTIONNAIRE
----------------------------------
Archangel Diamond Corporation, a Yukon corporation, (the "Company"), will use
the responses to this questionnaire to qualify prospective investors for
purposes of applicable securities laws. If the answer to any question below is
"none" or "not applicable", please so indicate.
Your answers will be kept confidential at all times. However, by signing this
Questionnaire, you agree that the Company may present this Questionnaire to such
parties as it deems appropriate to establish the availability of exemptions from
registration under applicable security laws.
I. GENERAL INFORMATION (to be completed by all proposed investors)
---
1. Name to appear on stock certificate:
-----------------------------------------------------------
Name of beneficial owner (if different from above):
If the beneficial owner differs from the registered holder, describe the
relationship.
2. Dollar amount of your proposed investment in this financing:
-----------------------------------
II. INDIVIDUAL INVESTORS (investors other than individuals should turn to Part III)
1. PERSONAL
Residence Address
------------------------------------------------------------------------------
Telephone Number
-------------------------------------------------------------------------------
Social Security Number
-------------------------------------------------------------------------
Date of Birth
----------------------------------------------------------------------------------
2. BUSINESS
Occupation
-------------------------------------------------------------------------------------
Number of Years
--------------------------------------------------------------------------------
Present Employer
-------------------------------------------------------------------------------
Position/Title
---------------------------------------------------------------------------------
Business Address
-------------------------------------------------------------------------------
3. INCOME
(a) Your annual gross income for 2002 is expected to be in excess of:
[ ] $ 50,000.00 U.S. [ ] $200,000.00 U.S.
[ ] $100,000.00 U.S. [ ] $250,000.00 U.S.
(b) Your annual gross income for each of 2000 and 2001 was not less
than:
[ ] $ 50,000.00 U.S. [ ] $200,000.00 U.S.
[ ] $100,000.00 U.S. [ ] $250,000.00 U.S.
4. NET WORTH
(a) Your net worth as of December 31, 2001, together with the net
worth of your spouse, was in excess of:
[ ] $100,000.00 U.S. [ ] $750,000.00 U.S.
[ ] $250,000.00 U.S.
[ ] $500,000.00 U.S. [ ] $1,000,000 U.S.
(b) In the event you may propose to purchase $150,000 or more of
securities of the Company, does your total purchase price exceed
10% of your net worth, or joint net worth with your spouse, at
the time of purchase?
Not applicable [ ] Yes [ ] No [ ]
If "yes", what percent of net worth does the total purchase price
represent?
________________________________________________________________
("Net worth" may include principal residence, net of
encumbrances, at either cost or appraised value, and furnishings
and automobiles.)
5. EDUCATION
Please describe your educational background and degrees obtained, if
any.
6. INVESTMENT EXPERIENCE
(a) Please describe briefly principal jobs held during the last
five years. Specific employers need not be identified. What is
sought is a sufficient description to permit a determination
concerning the extent of your experience in financial and
business matters.
________________________________________________________________
________________________________________________________________
________________________________________________________________
(b) Please indicate the frequency of your investment in marketable securities:
Often [ ] Occasionally [ ] Seldom [ ] Never [ ] .
(c) Please indicate the frequency of your investment in securities in which no market is made:
Five or more [ ] 1 or more but fewer than five [ ] None [ ] .
7. FINANCIAL ADVISORS
In evaluating this investment, will you use the services of an advisor
(if so, please identify):
Name
-------------------------------------------------------------------------------------------
Address
----------------------------------------------------------------------------------------
City State
-------------------------------------- -------------------------------------------
Zip Code Telephone
---------------------------------- ------------------------------------------
PLEASE TURN TO THE LAST PAGE AND SIGN AND DATE THIS QUESTIONNAIRE
III. NON-INDIVIDUAL INVESTORS (Please answer Part III only if the purchase is
proposed to be undertaken by a corporation, partnership or other entity.)
IF INVESTMENT WILL BE MADE BY MORE THAN ONE AFFILIATED ENTITY, PLEASE
COMPLETE A COPY OF THIS QUESTIONNAIRE FOR EACH ENTITY.
1. IDENTIFICATION
Name of Entity
---------------------------------------------------------------------------------
Type of Entity (corporation partner-ship, trust, etc.)
Jurisdiction of Formation or Incorporation
-----------------------------------------------------
Date of Formation
------------------------------------------------------------------------------
Federal Tax I.D. Number
------------------------------------------------------------------------
Was entity formed for the purpose of this investment?
Yes [ ] No [ ]
If the answer is yes, all shareholders, partners or other equity owners
must answer Parts I and II of this Questionnaire. If the above answer
is no, please continue completing this form.
If the undersigned is a partnership, has such partnership previously
carried out other business?
Yes [ ] No [ ]
2. Name of Officer/Partner/Trustee making investment decision on behalf of
the Entity:
_______________________________________________________________________
3. (a) The Officer/Partner/Trustee making the investment decision has
the degree of knowledge and experience in financial and
business matters to enable him to properly evaluate the merits
and risks of this investment.
Yes [ ] No [ ]
(b) The Officer/Partner/Trustee making the investment decision
understands the full nature and risk of this investment and
believes that the Entity can afford the complete loss of the
investment.
Yes [ ] No [ ]
(c) The Officer/Partner/Trustee making the investment decision
believes that the Entity can afford to hold the securities of
the company for an indefinite time.
Yes [ ] No [ ]
4. Describe the prior investment experience of the Entity or the
Officer/Partner/Trustee making the investment decision in investing
in companies such as the Company:
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
5. The current net worth of the Entity is $_______________________________
6. The Entity will have another person review or otherwise assist or
advise it in evaluating this investment.
Yes [ ] No [ ]
If "Yes," provide the following information:
Name
-------------------------------------------------------------------------------------------
Address
----------------------------------------------------------------------------------------
City State
-------------------------------------- -------------------------------------------
Zip Code Telephone
---------------------------------- ------------------------------------------
Such person will act as its Representative:
Yes [ ] No [ ]
7. BUSINESS
Please briefly describe the nature of the business conducted by the
investing entity:
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
III. SIGNATURE
The above information is true and correct in all material respects and the
undersigned recognizes that the Company and its counsel are relying on the truth
and accuracy of such information and the representations and warranties of the
undersigned in the Subscription Agreement in relying on an exemption from the
registration requirements of the Securities Act and the Securities Act (1933)
(as defined in the Subscription Agreement), and in determining applicable state
securities laws and relying on exemptions contained therein. The undersigned
agrees to notify the Company promptly of any changes in the foregoing
information which may occur prior to the investment.
Executed at ____________________, on ___________________________ 2002.
____________________________
(Signature)
____________________________
(Title if for Entity)
