SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
DATE OF REPORT: SEPTEMBER 18, 1996
CASMYN CORPORATION
(Exact name of registrant as specified in Charter)
COLORADO
(State or other jurisdiction of incorporation)
0-14136
(Commission File Number)
84-0987840
(IRS Employer Identification No.)
1335 GREG STREET, UNIT #104
SPARKS, NEVADA 89431
(702)331-5524
(Address and Telephone Number of Principal Executive Offices)
(Former name or former address, if changes since last report)
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ITEM 5. OTHER EVENTS
On September 11, 1996, the Company, through an offshore securities
subscription agreement executed in reliance upon the "safe harbor" afforded by
Regulation S as promulgated by the Securities and Exchange Commission, under
the Securities Act of 1933, as amended, completed the sale of 409,091 units
for net proceeds of $4,230,001 to one (1) accredited foreign investor. Each
unit consists of one share of the Company's restricted common stock plus one
warrant; two warrants plus $11.00 will entitle the holder to purchase one
share of the Company's common stock.
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EXHIBITS
Exhibit No. Description Page No.
- ----------- ----------- --------
A Offshore Securities Subscription Agreement 4
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Casmyn Corp.
/s/ Dennis E. Welling
September 18, 1996 By _______________________
Dennis E. Welling
Controller
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EXHIBIT A
OFFSHORE SECURITIES
SUBSCRIPTION AGREEMENT
THIS OFFSHORE SECURITIES SUBSCRIPTION AGREEMENT is executed in reliance upon
the transaction "safe harbor" afforded by Regulation S ("Regulation S") as
promulgated by the Securities and Exchange Commission ("SEC"), under the
Securities Act of 1933, as amended ("Securities Act").
THIS AGREEMENT has been executed by the undersigned in connection with the
placement of Units of Casmyn Corp., with offices located at 1335 Greg Street,
Unit #104, Sparks, Nevada 89431, a corporation organized under the laws of the
State of Colorado, United States of America (hereinafter referred to as "the
Company"). The undersigned (hereinafter referred to as "Buyer") is located at
and is an entity organized under the laws of or is a citizen and resident of
the country set forth below Buyer's signature, and hereby represents and
warrants to, and agrees with the Company as follows:
1. AGREEMENT TO SUBSCRIBE. The undersigned hereby subscribes for
____Units, each Unit consisting of one share of common stock, $.04 par
value, of the Company (the "Common Stock") and a warrant (the "Warrant") to
purchase one-half of Common Stock at Eleven Dollars ($11.00) per Unit (the
"Unit Price") for an aggregate purchase price of __________________ Dollars
($____________) ("Purchase Price") payable in United States Dollars. The
purchase price is payable in full by wire transfer to the account specified
in Exhibit "B" attached hereto, or by check payable to Casmyn Corp. and
delivered to the officers of the Company. Each Warrant is exercisable for
a period of two years, at an exercise price of five and 50/100 Dollars
($5.50), therefore entitling the Buyer to purchase one share of Common
Stock upon the exercise of two Warrants and the payment of Eleven Dollars
($11.00).
2. REPRESENTATIONS OF BUYER.
Buyer represents and warrants to the Company as follows:
a. Offshore Transaction.
(i) At the time the buy order to purchase the Units was originated, Buyer was
outside the United States;
(ii) Buyer is not a citizen of the United States;
(iii) Buyer is not a U.S. person nor is the Buyer acquiring the Securities for
the benefit of a U.S. person. The term "U.S. Person, " as defined in
Regulation S, means:
(a) any natural person resident in the United States;
(b) any partnership or corporation organized or incorporated under the
laws of the United States;
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(c) any estate of which any executor or administrator is a U.S. person,
unless an executor or administrator who is not a U.S. person has
sole or shared investment discretion with respect to the assets of
the estate is governed by foreign law;
(d) Any trust of which any trustee is a U.S. person, unless a
professional fiduciary (trustee) who is not a U.S. person has sole
or shared investment discretion with respect to the assets of
the trust and no trust beneficiary (and no trust settler if a
revocable trust) is a U.S. person;
(e) any agency or branch of a foreign entity located in the United
States;
(f) any non-discretionary account or similar account (other than an
estate or trust) held by a dealer or other fiduciary for the benefit
or account of a U.S. person;
(g) any discretionary account or similar account (other than an estate
or trust) held by a dealer or other fiduciary organized,
incorporated, or (if an individual) resident in the United States;
and
(h) any partnership or corporation if:
(1) organized or incorporated under the laws of any foreign
jurisdiction; and
(2) formed by a U.S. person principally for the purpose of investing
in securities not registered under the Securities Act, unless it
is organized or incorporated, and owned, by accredited investors
(as defined in Rule 501(a) under the Securities Act) who are not
natural persons, estates or trusts;
With respect to any agencies or branches of U.S. persons located outside the
United States for valid business reasons and engaged in the insurance or
banking business, and subject to substantive insurance or banking regulation
(as applicable) in the jurisdiction where located, the agency or branch is not
considered to be a U.S. person.
b. Investment Representations. Buyer is purchasing the Units for Buyer's
own account and for investment purposes and not with the view towards
distribution. Buyer does not have any contract, understanding or
arrangement with any person to sell, transfer or grant participation to
such person or any third person with respect to the Units;
c. Restrictions on Units, Warrant Shares and Debenture Shares.
(i) Buyer understands that neither the Units, the Warrant Shares nor the
Debenture Shares have been registered under the Securities Act, any
state securities law or the laws of any foreign jurisdiction;
(ii) Buyer understands that the Units are being offered and sold to Buyer
in reliance on the Regulation S safe harbor from the registration
requirements of the Securities Act and that the Company is relying upon
the truth and accuracy of the representations, warranties, agreements,
acknowledgments and understandings of Buyer set forth herein in order to
determine the applicability of such safe harbor and the suitability of
Buyer to acquire the Units;
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(iii) Buyer agrees that from the date hereof until the forty-first (41st)
day after the final closing of the sale of all Units offered by the
Company pursuant to Regulation S (the "Restrictive Period"), the Buyer,
or any successor, or any Professional (as defined in Section 2c(iv)
hereof) (except for sales of any Units registered under the Securities
Act or otherwise exempt from such registration) (a) will not sell any
of the Units to a U.S. Person or for the account or benefit of a U.S.
Person or anyone believed to be a U.S. Person, (b) will not engage
in any efforts to sell the Units in the United States, and (c) will
send to a Professional acting as agent or principal, a confirmation or
other notice stating that the Professional is subject to the same
restrictions on transfer to U.S. Persons or for the account of U.S.
Persons during the Restrictive Period as provided herein. The Company
will not honor or register and will not be obligated to honor or
register any transfer in violation of these provisions; to assure
full compliance with the restrictions placed on the resale of
securities offered pursuant to Regulation S, the Company shall place on
the certificates representing the Common Stock and Warrants the
restrictive legend attached hereto as Exhibit "A."
(iv) Buyer understands that the issuance of Warrant Shares upon exercise
of the Warrants will be in reliance on the Regulation S safe harbor
from the registration requirements of the Securities Act, and that
the Company may require representations, warranties, agreements,
acknowledgments and understandings of the holder of such Warrants
similar to those set forth herein in order to determine the
applicability of safe harbor and the suitability of such holder to
acquire the Warrant Shares;
(v) Buyer agrees that, until the forty-first (41st) day after the date
of exercise of the Warrants (the "Restrictive Period") the Buyer,
or any successor, or any Professional (as defined in Section
2c(iv) hereof)(except for sales of any Warrant Shares registered
under the Securities Act or otherwise exempt from such registration)
(a) will not sell any of the Warrant Shares to a U.S. Person for the
account or benefit of a U.S.Person or anyone believed to the a U.S.
Person, (b) will not engage in any efforts to sell the Warrant Shares,
and (c) will send to a Professional acting as agent or principal, a
confirmation or the notice stating that the Professional is subject
to the same restrictions on transfer to U.S. Persons or for the
account of U.S. Persons during the Restrictive Period as provided
herein. The Company will not honor or register and will not be
obligated to honor or register any transfer in violation of these
provisions; to assure full compliance with the restrictions placed
on the resale of securities offered pursuant to Regulation S, the
Company shall place on the certificates representing the Warrant
Shares and Debenture Shares the restrictive legend attached
hereto as Exhibit "A."
(vi) A "Professional" is a "distributor" as defined in Rule 902(c)
under the Securities Act (generally any underwriter, or other
person, who participates, pursuant to a contractual arrangement,
in the distribution of the Units); a dealer as defined in Section
2(12) of the Exchange Act (encompassing those who engage in the
business of trading or dealing in securities as agent, broker, or
principal); or a person receiving a selling concession, fee or other
remuneration in respect of the Units sold.
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d. Access to Information. Buyer has had access to all material and
relevant information necessary to enable Buyer to make an
informed investment decision. All data requested by Buyer from the
Company or its representatives concerning the business and financial
condition of the Company and the terms and conditions of the offering
has been furnished to Buyer's satisfaction. Buyer has had the
opportunity to ask questions and receive answers from the Company
concerning the terms and conditions of this offering, and to obtain
from the Company an additional information which the Company possesses
or may obtain without unreasonable effort or expense. Buyer
understands that there are numerous and substantial risks associated
with the purchase of the Securities which could result in a total
loss of the Buyer's investment.
e. Understanding of Investment Risks. Buyer understands that
realization of the objectives of the Company is subject to significant
economic and business risks.
f. No Government Recommendation or Approval. Buyer understands that
no Federal, State or foreign government agency has passed on or
made any recommendation or endorsement of the Units.
g. Resales or Securities. All subsequent offers and sales of the Units
shall be made in compliance with Regulation S, pursuant to registration
of the Units under the Securities Act or pursuant to another exemption
from such registration;
h. Subscription Agreement. The Subscription Agreement has been duly
authorized, validly executed and delivered on behalf of the Buyer and
is a valid and binding agreement in accordance with its terms,
subject to general principles of equity and to bankruptcy or other
laws affecting the enforcement of creditors' rights generally.
i. Non-contravention. If Buyer is not a natural person, the execution
and delivery of the Subscription Agreement and the consummation of
the purchase of the Units and the transactions contemplated
by this Subscription Agreement do not and will not conflict with or
result in a breach by the Buyer of any of the terms or provisions of,
or constitute a default under, the organization documents (i.e.,
articles of incorporation and bylaws, partnership agreement, trust
indenture, or similar documents) of the Buyer or any indenture,
mortgage, deed of trust or other material agreement or instrument to
which the Buyer is a party or by which its or any of its respective
properties or assets are bound, or any existing applicable law,
rule or regulation or any applicable law, rule or regulation or any
applicable decree, judgment or order of any court or regulatory body,
administrative agency or other governmental body having jurisdiction
over the Buyer or any of its properties or assets.
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3. REPRESENTATIONS OF THE COMPANY.
(a) Reporting Company Status. The Company is a "reporting company" as
defined by Rule 902 of Regulation S. The Company is in full compliance,
to the extent applicable, with all filing obligations under Section 13 of
the Exchange Act.
(b) Offshore Transaction. The Company has not offered the Units that are
the subject of this Agreement to any person in the United States, any
identifiable groups of U.S. citizens abroad, or to any U.S. Person as
that term is defined in Section 902(o) of Regulation S.
(c) No Directed Selling Efforts. In regard to the transaction
contemplated by this Agreement, the Company has not conducted any
"directed selling efforts" as that term is defined in Rule 902 of
Regulation S nor has the Company conducted any general solicitation
relating to the offer and sale of the Units that are the subject of this
transaction to persons resident within the United States or elsewhere.
(d) Concerning the Units and Warrant Shares. The Units, when issued and
delivered, will be duly and validly authorized and issued, fully paid and
non-assessable, and will not subject the holders thereof to personal
liability by reasons of being such holders. The Warrant Shares, when
issued and delivered, will be duly and validly authorized and issued,
fully paid and non-assessable. There are no preemptive rights of any
stockholder of the Company.
(e) Subscription Agreement. The Subscription Agreement has been duly
authorized, validly executed and delivered on behalf of the Company
and is a valid and binding agreement in accordance with its terms,
subject to general principles of equity and to bankruptcy or other
laws affecting the enforcement of creditors' rights generally.
(f) Noncontravention. The execution and delivery of the Subscription
Agreement and the consummation of the issuance of the Units and the
transactions contemplated by this Subscription Agreement do not and will
not conflict with or result in a breach by the Company of any of the
terms or provisions of, or constitute a default under the articles
of incorporation or bylaws of the Company or any indenture, mortgage,
deed ortrust or other material agreement or instrument to which the
Company is a party or by which its properties or assets are bound, or
any existing applicable law, rule or regulation or any allocable
law, rule or regulation or any applicable decree, judgment or order of
any court, Federal or State regulatory body, administrative agency
or other governmental body having jurisdiction over the Company or any
of its properties or assets.
(g) Approvals. The Company is not aware of any authorization, approval or
consent of any governmental body that is legally required for the
issuance and sale of the Units as contemplated by the Subscription
Agreement.
(h) Continuous Offering. The sale of the Units pursuant to this Agreement
is not a "continuous offering" as defined in Rule 902(m) or, if it is a
continuous offering, the sale of the Units hereunder is the last sale
thereunder and the "Restrictive Period" as defined in Rule 902(m)
commences on the Effective Date as hereinafter defined.
4. SAFE HARBOR; RELIANCE ON REPRESENTATIONS. Buyer understands that the
offer and sale of the Units (or any components thereof) are not being
registered under the Securities Act. The Company is relying on the rules
governing offers and sales made outside the United States pursuant to
Regulation S and Buyer's representations hereunder.
5. TRANSFER AGENT INSTRUCTIONS. The Company will issue one or more
certificates representing the Common Stock and the Warrants comprising the
Units in the name of Buyer and in such denominations to be specified by
Buyer prior to Closing. The Company's transfer agent will be instructed to
issue one or more share certificates representing the Common Stock or
Warrant Shares, as the case may be, in the name of Buyer and in such
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denominations to be specified as soon as practicable after the exercise of
the Warrants. The Company further warrants that no instructions other than
(i) these instructions, and
(ii) instructions for a "stop transfer" instruction until the end of the
Restrictive Period for resales into the United States
have been given to the transfer agent and that such Common Stock, Warrants
and Warrant Shares shall otherwise be freely transferable on the books and
records of the Company. Nothing in these Sections, however, shall
affect in any way the Buyer's obligations and agreement to comply with all
applicable securities laws upon resale of the Common Stock, Units
or Warrant Shares. Notwithstanding anything herein to the contrary, the
legend attached hereto as Exhibit "A" shall be placed on the
certificates evidencing the Common Stock, Warrants and Warrant Shares.
6. UNIT DELIVERY INSTRUCTIONS. The Company is hereby requested to deliver
certificates representing the Units to the Buyer on a delivery versus
payment basis at such times and places to be mutually agreed.
7. CLOSING DATE. The date of the issuance and the sale of the Units (the
"Closing") shall be three business days following the acceptance of this
subscription by the Company (the "Effective Date"), or such other mutually
agreed upon time.
8. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL. Buyer understands that
the Company's obligation to sell the Units is conditioned upon:
a. The receipt and acceptance by the Company of this Subscription
Agreement for all of the Units as evidenced by execution of
this Subscription Agreement by the Chief Executive Officer or
President of the Company; and
b. Delivery to the Company by Buyer of immediately available funds as
payment in full for the purchase of the Units.
9 BUYER'S ACKNOWLEDGMENT. Buyer represents and warrants that at the time
of the purchase, Buyer does not have a short or hedge position in the Units
or any component thereof. During the Restrictive Period, Buyer, in the
United States, (i) shall not effect short sales in the Units, and (ii)
shall not hedge, through short sales, options or otherwise, Buyer's
purchase of such Units.
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IN WITNESS WHEREOF, this Offshore Securities Subscription Agreement was duly
executed on the date first written below.
Dated this ____ day of the month of _________________________, 1966.
Official Signatory of the Company:
CASMYN CORPORATION
By: ____________________________________
Print Name: _____________________________
Title: __________________________________
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"BUYER(S)"
Names(s) exactly as you wish your Units
to be registered (1)__________________________
(2)__________________________
Title, if Buyer is not a natutral person (1)__________________________
(2)__________________________
Signatures (1)__________________________
(2)__________________________
Primary Residence (1)__________________________
__________________________
(2)__________________________
__________________________
Mailing Address (if different from above) (1)__________________________
__________________________
(2)__________________________
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EXHIBIT A
Each of the certificates shall have placed on it the following restrictive
legend:
"The securities represented by this certificate have been issued pursuant to
Regulation S promulgated under the Securities Act of 1933, as amended (the
"Act") and have not been registered under the Act. These securities may not
be offered or sold within the United States or to, or for the account of, a
"U.S. Person" (as the term is defined in Regulation S) until after
_____________, 199____. After such date, this legend shall have no further
force and effect.
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EXHIBIT B
Wiring Instructions of the Company:
