PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT - UNITS
THIS AGREEMENT, dated for reference September 23, 1999, is made
BETWEEN:
CARTA RESOURCES LTD., of 1075 Duchess Avenue, West Vancouver, British Columbia
V7T 1G8
(the "Issuer")
REFIMA AG, of Muhlenplatx 1, CH-6002, Luzern, Switzerland
(the "Subscriber")
1. SUBSCRIPTION
1.1 The Subscriber, as principal, irrevocably subscribes for and agrees to
purchase 1,270,000 units (the "Units") of the Issuer at a price of $0.38 per
Unit, for an aggregate purchase price of $482,600.
1.2 This is a subscription only and will not become an agreement between the
Issuer and the.
Subscriber until accepted by the Issuer by signing this subscription in the
space below. A reference to "this Agreement" in this subscription refers to the
agreement formed on acceptance by the Issuer.
1.3 The Subscriber waives the necessity for the Issuer to communicate
acceptance of this subscription, and acknowledges that this Agreement will
become binding on acceptance by the Issuer.
1.4 Each Unit will consist of one common share in the capital of the Issuer
(the "Shares") and one-half of a non-transferable share purchase warrant (the
"Warrants").
2. THE WARRANTS
2.1 One whole Warrant will entitle the Subscriber to purchase one common
share of the Issuer at a price of $0.48 per share if exercised during the first
year or at a price of $0.58 per share if exercised during the second year,
exercisable on or before two years from the date of this Agreement
2.2 The terms and conditions which govern the Warrants will be referred to
on the certificates representing the Warrants and will contain, among other
things, anti-dilution provisions and provisions for the appropriate adjustment
in the class, number and price for the Warrant Shares upon the occurrence of
certain events including any subdivision, consolidation or reclassification of
the shares or payments of stock dividends or the amalgamation of the Issuer.
2.3 The issue of the Warrants will not restrict or prevent the Issuer from
obtaining any other financing or from issuing additional securities or rights
during the period within which the Warrants are exercisable.
2.4 In this Agreement, the term "the Securities" means any or all of the
Shares, the Warrants and the shares of the Issuer issued on the exercise of the
Warrants (the "Warrant Shares").
3. PAYMENT AND USE OF FUNDS
3.1 The Subscriber will, on execution of this Agreement, deliver the
subscription price to the Issuer directly at the address referred to above, by
delivery of a certified cheque, bank draft, wire transfer or other form of
immediately available funds.
3.2 Upon receipt of the subscription price by the Issuer, and upon
acceptance by the Issuer of this subscription the Issuer will use its reasonable
efforts to obtain the acceptance of the Exchange to the issue and sale of the
Units to the Subscriber.
3.3 If this private placement is not accepted by the Exchange within the
time set out below, the Issuer will repay the subscription price to the
Subscriber on demand, without interest.
4. CLOSING
4.1 Upon receipt of the approval of the Exchange and payment of the
subscription price, the Issuer will issue and deliver the Shares and the
Warrants to the Subscriber in the names and denominations set out below.
4.2 If the approval of the Exchange to this transaction is not obtained
within 90 days of the date of this Agreement,, either party may elect to
terminate this Agreement by giving written notice of termination to the other
party
5.1 REPRESENTATIONS AND WARRANTIES
The Subscriber represents and warrants to the Issuer that:
(a) the Securities are not being purchased as a result of any material
information about the Issuer's affairs which has not been publicly disclosed;
(b) except to the extent qualified below the Subscriber is purchasing the
Units as principal on his or her own behalf and no other person has a direct or
indirect interest, present or future in the Securities;
(c) the Subscriber qualifies to purchase the Units under one of the
following categories:
(i) portfolio manager;
(i) the Subscriber is purchasing the Units as principal, or is a trust
company, an insurer or a portfolio manager who is purchasing the Units for
accounts that are fully managed by the Subscriber, and the Subscriber is
purchasing Units having an aggregate acquisition cost of not less than $97,000;
or
(ii) the Subscriber is an employee, senior officer or director of the Issuer
or of an affiliate of the Issuer and has not been induced to purchase the Units
by expectation of employment or continued employment; or
(iii) the Subscriber is a spouse, parent, brother, sister, child or close
personal friend of a senior officer or director of the Issuer or of an affiliate
of the Issuer; or
(iv) the Subscriber- is a company, all the voting securities of which are
owned by one or more of the classes of persons referred to in subparagraphs (ii)
or (iii) above;
(d) no person has made any written or oral representation to the Subscriber:
(i) that any person will resell or repurchase the Securities;
(ii) that any person will refund the purchase price of the Securities, other
than as provided in this Agreement;
(iii) relating to the future price or value of the Securities; or
(iv) that the Securities will be listed and posted for trading on a stock
exchange or that application has been made to list and post the Securities for
trading on a stock exchange, other than the Exchange;
(e) the representations, warranties and statements of fact made by the
Subscriber in the Securities Act (British Columbia) Form 20A in the form
accompanying this subscription are true;
(f) the Subscriber is ordinarily -resident at the address Jet out on the
first page of this Subscription;
(g) the Subscriber will promptly notify the Issuer of any material change in
any representation or warranty of the Subscriber in this Agreement between the
time this Agreement is made and the completion of the purchase and sale of the
Units; and
(h) the Subscriber has the legal capacity and competence to enter this into
Agreement and to purchase the Units, the Subscriber has obtained all necessary
authority or consents required to make this subscription and, if the Subscriber
is not an individual, the person signing this subscription has been duty
authorized to sign the subscription on behalf of the Subscriber,
5.2 Acknowledgments
The Subscriber acknowledges that:
(a) pursuant to the laws of British Columbia, the Subscriber will be
required to hold the Shares, and any shares acquired through the exercise of the
Warrants, for a period of 12 months from the date this Agreement has been
executed by the Issuer and the Subscriber has irrevocably committed the
subscription funds to acquire the Units, except as permitted by the Securities
Act (British Columbia) and the Securities Rules (British Columbia) and that the
certificates representing the Shares and the Warrants, and any shares of the
Issuer acquired upon exercise of the Warrants, will contain a legend to that
effect;
(b) resale of the Shares and any shares acquired through exercise of the
Warrants will be restricted beyond the time set out in paragraph 5.2(a) if:
(i) the Subscriber, is an insider of the Issuer, other than a director or
officer, and has not filed all records required to be filed under sections 87
(insider reports) and 90 (Form 4B personal information form) of the Securities
Act (British Columbia); or
(ii) the Subscriber is a director or officer of the Issuer and has not filed
all records required to be filed under sections 87 and 90 of the Securities Act
(British Columbia) or the Issuer has not filed all records required to be filed
under Part 12 (continuous disclosure) of the Securities Act (British Columbia)
and the Securities Rules (British Columbia); or
(iii) the Subscriber is, or subsequently becomes, a control person within
the meaning of the Securities Act (British Columbia); or
(iv) an unusual effort is made to prepare the market or create a demand for
the securities; or
(v) an extraordinary commission or consideration is paid in respect of the
trade; or
(vi) required by the laws of the jurisdiction in which the Subscriber
resides;
(c) the Subscriber has obtained all the necessary information concerning the
Issuer that he requires and that he does not require any additional information
about the Issuer, its shares or the proposed private placement;
(d) an investment in the Securities is highly speculative and could result
in a total loss of his investment and that he has a net worth sufficient to
permit him to afford a. total loss of his investment without substantially
affecting his present business affairs;
(e) the Warrants are non-transferable;
(f) this subscription for Units is irrevocable;
(g) the Issuer will rely on the representations and warranties of the
Subscriber in completing the sale of the Units to the Subscriber;
(h) the Issuer has not provided the Subscriber with investment, legal or tax
advice or acted as an adviser with respect to this subscription and the
Subscriber is relying solely on his or her own professional advisers, if any,
for any necessary advice;
(i) the Subscriber has had an opportunity to ask questions and receive
answers concerning the Issuer and its proposed business. and that any request
for such information has been complied with to the Subscriber's satisfaction;
(j) the Shares and any shares acquired through the exercise of the Warrants
have not and will not be registered under the United States Securities Act of
1933 or the securities laws of any state and may not be offered or sold or
re-offered or resold, directly or indirectly, in the United States or to or for
the account or benefit of a U.S. Person without registration under the United
States Securities Act of 1993 and the securities laws of all applicable states
unless an exemption from registration is available; and
(k) neither the Shares or any shares acquired through the exercise of the
Warrants may be transferred to or exercised in the United States or by or on
behalf of a U.S. Person, unless such Shares and Warrant Shares are registered
under the United States Securities Act of 1933 and applicable state securities
laws or unless an exemption from such registration is available;
(l) a finder's fee is payable in cash by the Issuer in connection with this
Private Placement.
6. MISCELLANEOUS
6.1 This Agreement is governed by the laws of British Columbia, and the
parties hereby irrevocably attorn to the non-exclusive jurisdiction of the
courts of British Columbia.
6.2 Any notice, payment, or other communication to a party under this
Agreement may be made, given or served by telecopier or other similar means of
recorded transmission or by hand delivery, courier or by mail. Notices sent by
telecopier or other similar means of recorded transmission, or by hand delivery
or courier, will be deemed to be received at 9:00 a.m. local time on the day
following the transmission or delivery. Local time refers to the time in the
location where the notice is received. Notices sent by mail will be deemed to
be received one week following mailing. Each party may change his or its
address for service at any time by notice in writing to the other.
6.3 Time is of the essence of this Agreement.
6.4 This Agreement and the rights and obligations contained in this
Agreement may not be assigned by the Subscriber or the Issuer.
6.5 The parties will execute and deliver all such further documents and
instruments and do all such further acts and things as the other party may
reasonably require to carry out the full intent and meaning of this Agreement
and to effect the issuance of the Shares and the Warrants to the Subscriber.
6.6 This Agreement contains the whole agreement between the Issuer and the
Subscriber in respect of the purchase and sale contemplated and there are no
warranties, representations, terms, conditions or collateral agreements,
express, implied or statutory, other than those expressly set forth in this
Agreement.
REFIMA AG
By:
Authorized Signatory
A C C E P T A N C E
The Issuer accepts this subscription in respect of 1,270,000 Units, this "23"
day of September, 1999
CARTA RESOURCES LTD.
By:
Authorized Signatory
<PAGE>
Name and Address of Subscriber:
REFIMA AG
----------
Name
Muhlenplatz 1, P.O. Box 4851
--------------------------------
Street Address
CH-6002, Luzern, Switzerland
------------------------------
City Country
REFIMA AG (0041) 41210740
----------------------------
Postal Code Telephone Number Facsimile Number
Registration and Delivery Instructions
Address for Delivery, if different from the address above
Number and Denominations of Certificates in multiples of 1,000
Details of Subscription
Number of Units: 1,270,000
---------
Price per Unit: $0.38
----
Total Price: $482,6000 (If no instructions are given, a single certificate
------------------------ ---------------------------------------------------
will be issued)
-----------------
<PAGE>
SCHEDULE "A"
FORM 20A (NIP)
B.C. Securities Act
Acknowledgment of Purchaser that is not an Individual
1. Refima AG (the "Purchaser") has agreed to purchase from Carta Resources
Ltd. (the "Issuer") 1,270,000 Units (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 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 also 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 "22" day of "October", 1999.
Signature of Authorized Signatory of Purchaser
KURT MARTY, Director
----------------------
Name and Office of Authorized Signatory of Purchaser
REFIMA AG
----------
Name of Purchaser
Muhlenplatz 1, P.O. Box 4851
--------------------------------
Address of Purchaser
CH-6002 Luzern, Switzerland
-----------------------------
<PAGE>
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:
- annual net income before tax of not less than $75,000, OR
- 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.
