U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
Summo Minerals Corporation
(Name of Issuer)
Common Stock, No Par Value
(Title of Class of Securities)
86636K 10 6
(Cusip Number)
Superior Partners, Ltd., James C. Dudley, Elisabeth C.
Dudley, Henry C. Dudley, Greenhouse Associates, Highstead
Foundation c/o Dudley & Company, 444 Madison Avenue, New York,
New York 10022, (212) 421-3400
Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications
5/16/97
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule
13G to report the acquisition which is the subject of this
Schedule 13D, and is filing this schedule because of Rule 13d-
1(b)(3) or (4), check the following box [ ].
* The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect to
the subject class of securities, and for any subsequent amendment
containing information which would alter disclosures provided in
a prior cover page.
The information required on the remainder of this cover page
shall not be deemed to be "filed" for the purpose of Section 18
of the Securities Exchange Act of 1934 ("Act") or otherwise
subject to the liabilities of that section of the Act but shall
be subject to all other provisions of the Act.
CUSIP No. 86636K 10 6
1. Name of Reporting Persons S.S. or I.R.S. Identification
Numbers of Above persons:
Superior Partners, Ltd.
2. Check the appropriate box if a Member of a Group
(See Instructions)
a. X
b.
3. SEC Use Only:
4. Source of Funds (See Instructions)
PF
5. Check if Disclosure of Legal Proceedings is Required
Pursuant to Items 2(d) or 2(e):
6. Citizenship or Place of Organization:
Minnesota
Number of Shares Beneficially Owned by Each Reporting Persons
With:
7. Sole Voting Power:
2,743,200 plus right to acquire 2,743,200
8. Shared Voting Power:
0
9. Sole Dispositive Power:
2,743,200 plus right to acquire 2,743,200
10. Shared Dispositive Power:
0
11. Aggregate Amount Beneficially Owned by each Reporting
Person:
11,312,172
12. Check if the Aggregate Amount in Row (11) Excludes Certain
Shares (See Instructions):
13. Percent of Class Represented by Amount in Row (11):
18.5%
14. Type of Reporting Person (See Instructions):
PN
<PAGE>
1. Name of Reporting Persons S.S. or I.R.S. Identification
Numbers of Above persons:
James C. Dudley
2. Check the appropriate box if a Member of a Group
(See Instructions)
a. X
b.
3. SEC Use Only:
4. Source of Funds (See Instructions)
PF
5. Check if Disclosure of Legal Proceedings is Required
Pursuant to Items 2(d) or 2(e):
6. Citizenship or Place of Organization:
USA
Number of Shares Beneficially Owned by Each Reporting Persons
With:
7. Sole Voting Power:
1,597,280 plus right to acquire 1,097,280
8. Shared Voting Power:
0
9. Sole Dispositive Power:
1,597,280 plus right to acquire 1,097,280
10. Shared Dispositive Power:
0
11. Aggregate Amount Beneficially Owned by each Reporting
Person:
11,312,172
12. Check if the Aggregate Amount in Row (11) Excludes Certain
Shares (See Instructions):
13. Percent of Class Represented by Amount in Row (11):
8%
14. Type of Reporting Person (See Instructions):
IN
<PAGE>
1. Name of Reporting Persons S.S. or I.R.S. Identification
Numbers of Above persons:
Elisabeth C. Dudley
2. Check the appropriate box if a Member of a Group
(See Instructions)
a. X
b.
3. SEC Use Only:
4. Source of Funds (See Instructions)
PF
5. Check if Disclosure of Legal Proceedings is Required
Pursuant to Items 2(d) or 2(e):
6. Citizenship or Place of Organization:
USA
Number of Shares Beneficially Owned by Each Reporting Persons
With:
7. Sole Voting Power:
548,640 plus right to acquire 548,640
8. Shared Voting Power:
0
9. Sole Dispositive Power:
548,640 plus right to acquire 548,640
10. Shared Dispositive Power:
0
11. Aggregate Amount Beneficially Owned by each Reporting
Person:
11,312,172
12. Check if the Aggregate Amount in Row (11) Excludes Certain
Shares (See Instructions):
13. Percent of Class Represented by Amount in Row (11):
4.0%
14. Type of Reporting Person (See Instructions):
IN
<PAGE>
1. Name of Reporting Persons S.S. or I.R.S. Identification
Numbers of Above persons:
Henry C. Dudley
2. Check the appropriate box if a Member of a Group
(See Instructions)
a. X
b.
3. SEC Use Only:
4. Source of Funds (See Instructions)
PF
5. Check if Disclosure of Legal Proceedings is Required
Pursuant to Items 2(d) or 2(e):
6. Citizenship or Place of Organization:
USA
Number of Shares Beneficially Owned by Each Reporting Persons
With:
7. Sole Voting Power:
150,876 plus right to acquire 150,876
8. Shared Voting Power:
0
9. Sole Dispositive Power:
150,876 plus right to acquire 150,876
10. Shared Dispositive Power:
0
11. Aggregate Amount Beneficially Owned by each Reporting
Person:
11,312,172
12. Check if the Aggregate Amount in Row (11) Excludes Certain
Shares (See Instructions):
13. Percent of Class Represented by Amount in Row (11):
1.1%
14. Type of Reporting Person (See Instructions):
IN
<PAGE>
1. Name of Reporting Persons S.S. or I.R.S. Identification
Numbers of Above persons:
Greenhouse Associates
2. Check the appropriate box if a Member of a Group
(See Instructions)
a. X
b.
3. SEC Use Only:
4. Source of Funds (See Instructions)
PF
5. Check if Disclosure of Legal Proceedings is Required
Pursuant to Items 2(d) or 2(e):
6. Citizenship or Place of Organization:
N/A
Number of Shares Beneficially Owned by Each Reporting Persons
With:
7. Sole Voting Power:
1,016,090 plus right to acquire 616,090
8. Shared Voting Power:
0
9. Sole Dispositive Power:
1,016,090 plus right to acquire 616,090
10. Shared Dispositive Power:
0
11. Aggregate Amount Beneficially Owned by each Reporting
Person:
11,312,172
12. Check if the Aggregate Amount in Row (11) Excludes Certain
Shares (See Instructions):
13. Percent of Class Represented by Amount in Row (11):
4.5%
14. Type of Reporting Person (See Instructions):
PN
<PAGE>
1. Name of Reporting Persons S.S. or I.R.S. Identification
Numbers of Above persons:
Highstead Foundation
2. Check the appropriate box if a Member of a Group
(See Instructions)
a. X
b.
3. SEC Use Only:
4. Source of Funds (See Instructions)
PF
5. Check if Disclosure of Legal Proceedings is Required
Pursuant to Items 2(d) or 2(e):
6. Citizenship or Place of Organization:
Connecticut
Number of Shares Beneficially Owned by Each Reporting Persons
With:
7. Sole Voting Power:
100,000
8. Shared Voting Power:
0
9. Sole Dispositive Power:
100,000
10. Shared Dispositive Power:
0
11. Aggregate Amount Beneficially Owned by each Reporting
Person:
11,312,172
12. Check if the Aggregate Amount in Row (11) Excludes Certain
Shares (See Instructions):
13. Percent of Class Represented by Amount in Row (11):
0.4%
14. Type of Reporting Person (See Instructions):
OO
<PAGE>
Item 1. Security and Issuer
This statement relates to the common stock, no par value
of Summo Minerals Corporation, the Issuer, whose address and
principal offices are located at 1776 Lincoln Street, Suite 900,
Denver, Colorado 80203
Item 2. Identity and Background
(a) Name: (1) Superior Partners, Ltd.; (2) James C.
Dudley; (3) Elisabeth C. Dudley; (4) Henry C. Dudley; (5)
Greenhouse Associates; (6) Highstead Foundation
(b) Residence or Business Address: c/o Dudley & Company,
444 Madison Avenue, New York, New York 10022.
(c) Principal business: N/A.
(d) None of the filing persons has been convicted in any
criminal proceeding during the last five (5) years.
(e) None of the filing persons has been a party to any
civil proceeding, of a judicial or administrative body of
competent jurisdiction, which resulted in a judgment or decree,
or final order enjoining him, her or it from future violations
of, or prohibiting or mandating activities subject to federal or
state securities laws, or which found any violation with respect
to such laws.
(f) Citizenship: (1) Superior Partners, Ltd. - Minnesota;
(2) James C. Dudley - USA; (3) Elisabeth C. Dudley - USA; (4)
Henry C. Dudley - USA; (5) Greenhouse Associates - N/A;
(6) Highstead Foundation - Connecticut
Item 3. Source and Amount of Funds or Other Consideration
All shares and warrants presently owned by the filing group
were purchased for cash from the personal funds of each member of
the filing group.
Item 4. Purpose of Transaction
Investment.
Item 5. Interest in Securities of the Issuer
(a) For each member of the group 6,156,086 plus rights to
acquire 5,156,086.
(b) Superior Partners, Ltd. owns 2,743,200 shares with the
right to acquire 2,743,200 shares. James C. Dudley owns
1,597,280 shares with the right to acquire 1,097,280 shares.
Elisabeth C. Dudley owns 548,640 shares with the right to acquire
548,640 shares. Henry C. Dudley owns 150,876 shares with the
right to acquire 150,876 shares. Greenhouse Associates owns
1,016,090 shares with the right to acquire 616,090 shares.
Highstead Foundation owns 100,000 shares. Each of these persons
has sole voting and sole dispositive powers to the shares set
forth above.
(c) The persons listed below purchased the following
securities from the Issuer on or about May 26, 1997: Superior
Partners, Ltd, 2,743,200 Units; James C. Dudley, 1,097,280 Units;
Elisabeth C. Dudley, 548,640 Units; and Henry C. Dudley, 150, 876
Units. Each Unit consisted of one share of the Issuer's common
stock and one warrant to purchase one share of common stock at an
exercise price of $1.25 Cdn., exercisable until May 16, 1999.
Each Unit was purchased for $1.00 Cdn.
(d) N/A.
(e) N/A.
Item 6. Contract, Arrangements, Understandings or Relationships
with Respect to Securities of the Issuer
N/A.
Item 7. Material to be Filed as Exhibits
(Subscription Agreements for Superior and each Dudley from
Lindsay Salt at Scott Bissett.)
A. Subscription Agreement by and between Summo Mineral
Corporation and Superior Partners, Ltd. dated May 16, 1997.
B. Subscription Agreement by and between Summo Mineral
Corporation and James C. Dudley dated May 16, 1997.
C. Subscription Agreement by and between Summo Mineral
Corporation and Elisabeth C. Dudley dated May 16, 1997.
D. Subscription Agreement by and between Summo Mineral
Corporation and Henry C. Dudley dated May 16, 1997.
SIGNATURES
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this
statement is true, complete and correct.
Date: June 10, 1997 By: /s/ Frank E. Shanley
Frank E. Shanley, as
attorney-in-fact for Superior
Partners, Ltd., James C.
Dudley, Elisabeth C. Dudley,
Henry C. Dudley, Greenhouse
Associates, and Highstead
Foundation
SUBSCRIPTION AGREEMENT AND UNDERTAKING
(UNITS)
(U.S. and Non-U.S. Subscribers)
TO: Superior Partners, Ltd.
c/o Dudley & Company, 444 Madison Avenue
New York, N.Y., 10022
Dear Sirs:
Re: Summo Minerals Corporation (the "Company")
Subscription Agreement and Undertaking
1. Superior Partners, Ltd. (the "Subscriber") hereby agrees to
purchase from the Company and the Company agrees to sell to the
Subscriber 2,743,200 common shares (the "Private Placement
Shares") in the capital stock of the Company at and for a price
of $1.00 Cdn. per share, for a total purchase price of $2,743,200
Cdn. ($2,000,000 U.S.) (the "Subscription Proceeds"), subject to
the satisfaction of the sole condition that the purchase and sale
documentation be accepted for filing by applicable securities
regulatory authorities. The Subscriber irrevocably commits the
full amount of the Subscription Proceeds and tenders herewith a
cheque or bank draft made payable to the Company in the full
amount thereof.
2. As further consideration for the purchase of the Private
Placement Shares, the Subscriber will be issued a
non-transferable Share Purchase Warrant (the "Warrant"),
conferring on the Subscriber the right to purchase up to an
additional 2,743,200 common shares (the "Warrant Shares") in the
capital stock of the Company exercisable at any time within two
years of the date of this agreement at a price of $1.25 Cdn. per
share.
3. The Subscriber hereby represents and warrants to the Company
that:
(a) the Subscriber is purchasing the Private Placement
Shares and Warrants as principal;
(b) the Subscriber is purchasing the Private Placement
Shares and Warrants as an investment and not for the purpose of
resale or other disposition; and
(c) the Subscriber has received independent legal advice
with respect to this transaction.
4. The Subscriber acknowledges and confirms that:
(a) the Private Placement Shares and Warrants are being
issued pursuant to exemptions from prospectus and registration
requirements set out in the Securities Act (British Columbia) and
the Securities Rules thereunder and the Securities Act (Ontario)
and the regulations thereunder (collectively the "Act");
(b) the Private Placement Shares, the Warrants and the
Warrant Shares (collectively the "Securities") have not been
registered under the United States Securities Act of 1933 (the
"1933 Act") and may not be offered or sold in the United States
unless registered under the 1933 Act and the securities laws of
all applicable states of the United States or an exemption from
such registration requirements is available, and that the Company
has no obligation or present intention of filing a registration
statement under the 1933 Act in respect of the Securities;
(c) the Subscriber either:
(i) is a U.S. Person and represents and warrants to
the Company as set forth in Appendix A hereto, or (ii) represents
and warrants that:
(1) the Subscriber is not a "U.S. Person" and is
not acquiring the Securities for the account or benefit of a
"U.S. Person". For the purposes of this Subscription Agreement,
a "U.S. Person" means:
(A) a natural person resident in the United
States;
(B) a partnership or corporation organized or
incorporated under the laws of the United States;
(C) an estate of which any executor or
administrator is a U.S. Person;
(D) a trust of which any trustee is a U.S.
Person;
(E) any agency or branch of a foreign entity
located in the United States;
(F) a 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) a 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) a partnership or corporation if:
I. organized or incorporated under the laws of
any foreign jurisdiction; and
II. formed by a U.S. Person principally for the
purpose of investing in securities not registered
under the 1933 Act, unless it is organized or
incorporated, and owned, by accredited investors
(as defined by Regulation D under the 1933 Act)
who are not natural persons, estates or trusts.
(2) the Subscriber acknowledges that the
certificates representing the Warrants will bear a legend stating
that the Warrants and the Warrant Shares have not been registered
under the 1933 Act or the securities laws of any state of the
United States and the Warrants may not be exercised in the United
States or by or on behalf of a U.S. Person unless registered
under the 1933 Act and the securities laws or all applicable
states of the United States or an exemption from such
registration requirements is available;
(3) the Subscriber acknowledges that any person
who exercises a Warrant will be required to provide to the
Company: (i) written certification that it is not a U.S. Person
and the Warrant is not being exercised on behalf of a U.S.
Person; or (ii) a written opinion of counsel to the effect that
the Warrant and the Warrant Shares have been registered under the
1933 Act or are exempt from registration thereunder;
(4) no offers to sell the Securities were made by
any person to the Subscriber while the Subscriber was in the
United States; and
(5) the Subscriber was outside the United States
at the time of execution and delivery of this Subscription
Agreement.
5. The Subscriber acknowledges and confirms that:
(a) the Act and/or the current policies of The Toronto
Stock Exchange (the "Exchange") provide that the Private
Placement Shares and Warrant Shares may not be sold or otherwise
disposed of for a period of 12 months from the date of this
agreement (the "Hold Period") except where such disposition takes
place pursuant to an exemption from prospectus and registration
requirements under the Act or pursuant to a written Order of the
applicable governmental securities regulatory body;
(b) a legend indicating the Hold Period will be imprinted
on the share certificate(s) issued for the Private Placement
Shares and Warrant Shares;
(c) notwithstanding that it may lawfully dispose of the
Private Placement Shares and Warrant Shares during the Hold
Period, it may not do so until it has obtained the prior approval
of the Exchange;
(d) the purchase of the Private Placement Shares and
Warrants is a highly speculative investment but the Subscriber
has a net worth sufficient to permit it to afford a total loss of
its investment hereunder without a material effect on its
financial position;
(e) this transaction has not been reviewed by any
securities regulatory body other than the Exchange and then only
to ensure compliance with its policies relating to the terms of
the sale;
(f) it is in possession of all of the information relating
to the Company that is necessary in order to make an informed
investment decision;
(g) it is not acquiring the Private Placement Shares and
Warrants as a result of being aware of any information about the
material affairs of the Company that is not generally known to
the public save knowledge of this particular transaction; and
(h) upon the obtaining of "Regulatory Approval" (as
hereinafter defined), the Company will have unconditional access
to the Subscription Proceeds and accrued interest thereon.
6. The Company hereby represents and warrants to the Subscriber
that:
(a) it is a company duly incorporated under the laws of the
Province of British Columbia and is up-to-date with respect to
its filings with the applicable corporate registration agency;
(b) it is a reporting issuer within the meaning of the Act;
(c) to the best of its knowledge, it is not in default of
its listing agreement with the Exchange;
(d) its common shares are listed for trading on the
Exchange; and
(e) the common shares to be issued to the Subscriber
hereunder will, when issued, be issued and allotted as fully paid
and non-assessable common shares, free and clear of all liens,
charges and encumbrances and free of all pooling or escrow
restrictions.
7. The Company covenants and agrees with the Subscriber as
follows:
(a) it shall use its best efforts to have this agreement
accepted for filing by the Exchange (such acceptance being
referred to hereinafter as the "Regulatory Approval") as quickly
as reasonably practicable; PROVIDED THAT if Regulatory Approval
has not been obtained within 180 days of the date of this
agreement, the Subscription Proceeds, together with accrued
interest thereon, will be immediately returned by the Company to
the Subscriber, and this agreement will be void ab initio, and
the Subscriber will have no claim, right or action against the
Company;
(b) within 10 business days of the obtaining of Regulatory
Approval, it will issue the Private Placement Shares and Warrants
to the Subscriber;
(c) until Regulatory Approval has been obtained, it will
not deal with the Subscription Proceeds in any way.
8. The Subscriber hereby agrees to execute any and all further
documentation which may be required by the applicable securities
regulatory authorities with respect to this transaction.
9. The Subscriber hereby confirms that, in the event it is not
a resident of British Columbia, it will ensure that the
applicable securities legislation, order or regulatory policy
concerning the purchase, holding or resale of the securities
herein subscribed for is complied with.
10. This letter agreement may be executed in several parts in
the same form and such parts as so executed will together form
one original agreement and such parts, if more than one, will be
read together and construed as if all the signing parties hereto
had executed one copy of this letter agreement.
DATED as of the 16th day of May, 1997.
Yours very truly,
SUMMO MINERALS CORPORATION
Per: c/s
Director
Superior Partners, Ltd. hereby agrees to the foregoing as of the
16th day of May, 1997.
Superior Partners, Ltd.
Per: /s/ Superior Partners, Ltd.
(signature)
(name - please print)
(title - please print)
Appendix "A" to Subscription Agreement and Undertaking (Units)
with SUMMO MINERALS CORPORATION
ONLY U.S. SUBSCRIBERS NEED TO SIGN THIS
All capitalized terms herein, unless otherwise defined, have the
meaning ascribed thereto in the Private Placement Subscription
Agreement.
The Subscriber covenants, represents and warrants to the Company
that:
(a) it is a "U.S. Person" as defined in Regulation S under the
Securities Act of 1933 (United States) (as amended) (the "1933
Act");
(b) it has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and
risks of the investment and it is able to bear the economic risk
of loss of the investment;
(c) it is purchasing the Securities for investment only and not
with a view to resale or distribution and, in particular, it has
no intention to distribute either directly or indirectly any of
the Securities in the United States or to "U.S. Persons";
provided however that the Subscriber may sell or otherwise
dispose of any of the Private Placement Shares or Warrant Shares
pursuant to registration thereof pursuant to the 1933 Act and any
applicable State securities laws or under an exemption from such
registration requirements;
(d) it understands that the Securities have not been and will
not be registered under the 1933 Act and that the sale
contemplated hereby is being made in reliance on an exemption
from such registration requirements;
(e) it is acquiring the Securities for its own account or for
the account of an "accredited investor" as to which it exercises
sole investment discretion, and not with a view to any resale,
distribution or other disposition of the Securities in violation
of the United States securities laws;
(f) it satisfies one or more of the categories indicated below
(please place an "X" on the appropriate line:
____ Category 1 An organization described in Section
501(c)(3) of the United States Internal Revenue Code, a
corporation, a Massachusetts or similar business trust or
partnership, not formed for the specific purpose of acquiring the
Securities, with total assets in excess of $5,000,000 U.S.
____ Category 2 A natural person whose individual net worth,
or joint net worth with that person's spouse, at the date hereof
exceeds $1,000,000 U.S.;
____ Category 3 A natural person who had an individual income
in excess of $200,000 U.S. in each of the two most recent years
or joint income with that person's spouse in excess of $300,000
U.S. in each of those years and has a reasonable expectation of
reaching the same income level in the current year; or
____ Category 4. A "bank" as defined under Section (3)(a)(2)
of the 1933 Act or savings and loan association or other
institution as defined in Section 3(a)(5)(A) of the 1933 Act
acting in its individual or fiduciary capacity; a broker dealer
registered pursuant to Section 15 of the Securities Exchange Act
of 1934; an insurance company as defined in Section 2(13) of the
1933 Act; an investment company registered under the Investment
Company Act of 1940 or a business development company as defined
in Section 2(a)(48) of such act; a Small Business Investment
Company licensed by the U.S. Small Business Administration under
Section 301(c) or (d) of the Small Business Investment Act of
1958; a plan with total assets in excess of $5,000,000 U.S.
established and maintained by a state, a political subdivision
thereof, or an agency or instrumentality of a state or a
political subdivision thereof, for the benefit of its employees;
an employee benefit plan within the meaning of the Employee
Retirement Income Security Act of 1974 whose investment decisions
is made by a plan fiduciary, as defined in Section 3(21) of such
act, which is either a bank, savings and loan association,
insurance company, or registered investment adviser, or if the
employee benefit plan has total assets in excess of $5,000,000
U.S., or, if a self-directed plan, whose investment decisions are
made solely by persons that are accredited investors;
____ Category 5. A private business development company as
defined in Section 202(a)(22) of the Investment Advisers Act of
1940;
____ Category 6. A director or executive officer of the
Company;
____ Category 7. A trust with total assets in excess of
$5,000,000 U.S., not formed for the specific purpose of acquiring
the Shares, whose purchase is directed by a sophisticated person
as described in Rule 506(b)(2)(ii) under the 1933 Act; or
____ Category 8. An entity in which all of the equity owners
satisfy the requirements of one or more of the foregoing
categories.
(g) it acknowledges that it has not purchased the Securities as
a result of any form of general solicitation or general
advertising including advertisements, articles, notices or other
communications published in any newspaper, magazine or similar
media or broadcast over radio, or television, or any seminar or
meeting whose attendees have been invited by general solicitation
or general advertising;
(h) it agrees that if it decides to offer, sell or otherwise
transfer any of the Securities, it will not offer, sell or
otherwise transfer any of such Securities directly or indirectly,
unless:
(i) the sale is to the Company;
(ii) the sale is made outside the United States in a
transaction meeting the requirements of Rule 904 of Regulation S
under the 1933 Act and in compliance with applicable local laws
and regulations;
(iii) the sale is made pursuant to the exemption from the
registration requirements under the 1933 Act provided by Rule 144
thereunder and in accordance with any applicable state securities
or "Blue Sky" laws; or
(iv) the Securities are sold in a transaction that does not
require registration under the 1933 Act or any applicable U.S.
state laws and regulations governing the offer and sale of
securities, and it has prior to such sale furnished to the
Company an opinion of counsel reasonable satisfactory to the
Company;
(i) the Subscriber acknowledges that it has not purchased the
Securities as a result of, and will not itself engage in, any
"directed selling efforts" (as defined in Regulation S under the
1933 Act) in the United States in respect of the Securities which
would include any activities undertaken for the purpose of, or
that could reasonably be expected to have the effect of,
conditioning the market in the United States for the resale of
the Units; provided however that the Subscriber may sell or
otherwise dispose of any of the Securities pursuant to
registration of the Securities pursuant to the 1933 Act and any
applicable state securities laws or under an exemption from such
registration requirements and as otherwise provided herein;
(j) the Subscriber understands and acknowledges that upon the
issuance thereof, and until such time as the same is no longer
required under the applicable requirements of the 1933 Act or
applicable U.S. state laws and regulations, the certificates
representing any of the Securities will bear a legend and that
certificates representing Securities issued in exchange therefor
or in substitution thereof will also bear a legend; provided that
if the Securities are being sold under clause 8(b) above, the
legend may be removed by providing a declaration or legal opinion
satisfactory to counsel to the Company to the registrar and
transfer agent of the Company to the effect that the requirements
of Rule 904 of Regulation S under the 1933 Act and applicable
local laws and regulations have been complied with;
(k) the Subscriber consents to the Company making a notation on
its records or giving instruction to the registrar and transfer
agent of the Company in order to implement the restrictions on
transfer set forth and described herein; and
(l) the Subscriber, if an individual, is a resident of the State
or other jurisdiction in its address on Subscription Agreement
and Undertaking, or if the Subscriber is not an individual, the
office of the Subscriber at which the Subscriber received and
accepted the offer to purchase the Securities is the address
listed on the Subscription Agreement and Undertaking.
Date: May 16, 1997 Duly authorized signatory for
Subscriber
/s/ Superior Partners, Ltd.
Superior Partners, Ltd.
Print name of Subscriber
<PAGE>
SUBSCRIPTION AGREEMENT AND UNDERTAKING
(UNITS)
(U.S. and Non-U.S. Subscribers)
TO: James C. Dudley
c/o Dudley & Company, 444 Madison Avenue
New York, N.Y., 10022
Dear Sirs:
Re: Summo Minerals Corporation (the "Company")
Subscription Agreement and Undertaking
1. James C. Dudley (the "Subscriber") hereby agrees to purchase
from the Company and the Company agrees to sell to the Subscriber
1,097,280 common shares (the "Private Placement Shares") in the
capital stock of the Company at and for a price of $1.00 Cdn. per
share, for a total purchase price of $1,097,280 Cdn. ($800,000
U.S.) (the "Subscription Proceeds"), subject to the satisfaction
of the sole condition that the purchase and sale documentation be
accepted for filing by applicable securities regulatory
authorities. The Subscriber irrevocably commits the full amount
of the Subscription Proceeds and tenders herewith a cheque or
bank draft made payable to the Company in the full amount
thereof.
2. As further consideration for the purchase of the Private
Placement Shares, the Subscriber will be issued a
non-transferable Share Purchase Warrant (the "Warrant"),
conferring on the Subscriber the right to purchase up to an
additional 1,097,280 common shares (the "Warrant Shares") in the
capital stock of the Company exercisable at any time within two
years of the date of this agreement at a price of $1.25 Cdn. per
share.
3. The Subscriber hereby represents and warrants to the Company
that:
(a) the Subscriber is purchasing the Private Placement
Shares and Warrants as principal;
(b) the Subscriber is purchasing the Private Placement
Shares and Warrants as an investment and not for the purpose of
resale or other disposition; and
(c) the Subscriber has received independent legal advice
with respect to this transaction.
4. The Subscriber acknowledges and confirms that:
(a) the Private Placement Shares and Warrants are being
issued pursuant to exemptions from prospectus and registration
requirements set out in the Securities Act (British Columbia) and
the Securities Rules thereunder and the Securities Act (Ontario)
and the regulations thereunder (collectively the "Act"); and
(b) the Private Placement Shares, the Warrants and the
Warrant Shares (collectively the "Securities") have not been
registered under the United States Securities Act of 1933 (the
"1933 Act") and may not be offered or sold in the United States
unless registered under the 1933 Act and the securities laws of
all applicable states of the United States or an exemption from
such registration requirements is available, and that the Company
has no obligation or present intention of filing a registration
statement under the 1933 Act in respect of the Securities;
(c) the Subscriber either:
(i) is a U.S. Person and represents and warrants to the
Company as set forth in Appendix A hereto, or (ii) represents and
warrants that:
(1) the Subscriber is not a "U.S. Person" and is not
acquiring the Securities for the account or benefit of a "U.S.
Person". For the purposes of this Subscription Agreement, a
"U.S. Person" means:
(A) a natural person resident in the United
States;
(B) a partnership or corporation organized or
incorporated under the laws of the United States;
(C) an estate of which any executor or
administrator is a U.S. Person;
(D) a trust of which any trustee is a U.S.
Person;
(E) any agency or branch of a foreign entity
located in the United States;
(F) a 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) a 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) a partnership or corporation if:
I. organized or incorporated under the laws of
any foreign jurisdiction; and
II. formed by a U.S. Person principally for the
purpose of investing in securities not registered
under the 1933 Act, unless it is organized or
incorporated, and owned, by accredited investors
(as defined by Regulation D under the 1933 Act)
who are not natural persons, estates or trusts.
(2) the Subscriber acknowledges that the certificates
representing the Warrants will bear a legend stating that the
Warrants and the Warrant Shares have not been registered under
the 1933 Act or the securities laws of any state of the United
States and the Warrants may not be exercised in the United States
or by or on behalf of a U.S. Person unless registered under the
1933 Act and the securities laws or all applicable states of the
United States or an exemption from such registration requirements
is available;
(3) the Subscriber acknowledges that any person who
exercises a Warrant will be required to provide to the Company:
(i) written certification that it is not a U.S. Person and the
Warrant is not being exercised on behalf of a U.S. Person; or
(ii) a written opinion of counsel to the effect that the Warrant
and the Warrant Shares have been registered under the 1933 Act or
are exempt from registration thereunder;
(4) no offers to sell the Securities were made by any
person to the Subscriber while the Subscriber was in the United
States; and
(5) the Subscriber was outside the United States at
the time of execution and delivery of this Subscription
Agreement.
5. The Subscriber acknowledges and confirms that:
(a) the Act and/or the current policies of The Toronto
Stock Exchange (the "Exchange") provide that the Private
Placement Shares and Warrant Shares may not be sold or otherwise
disposed of for a period of 12 months from the date of this
agreement (the "Hold Period") except where such disposition takes
place pursuant to an exemption from prospectus and registration
requirements under the Act or pursuant to a written Order of the
applicable governmental securities regulatory body;
(b) a legend indicating the Hold Period will be imprinted
on the share certificate(s) issued for the Private Placement
Shares and Warrant Shares;
(c) notwithstanding that it may lawfully dispose of the
Private Placement Shares and Warrant Shares during the Hold
Period, it may not do so until it has obtained the prior approval
of the Exchange;
(d) the purchase of the Private Placement Shares and
Warrants is a highly speculative investment but the Subscriber
has a net worth sufficient to permit it to afford a total loss of
its investment hereunder without a material effect on its
financial position;
(e) this transaction has not been reviewed by any
securities regulatory body other than the Exchange and then only
to ensure compliance with its policies relating to the terms of
the sale;
(f) it is in possession of all of the information relating
to the Company that is necessary in order to make an informed
investment decision;
(g) it is not acquiring the Private Placement Shares and
Warrants as a result of being aware of any information about the
material affairs of the Company that is not generally known to
the public save knowledge of this particular transaction; and
(h) upon the obtaining of "Regulatory Approval" (as
hereinafter defined), the Company will have unconditional access
to the Subscription Proceeds and accrued interest thereon.
6. The Company hereby represents and warrants to the Subscriber
that:
(a) it is a company duly incorporated under the laws of the
Province of British Columbia and is up-to-date with respect to
its filings with the applicable corporate registration agency;
(b) it is a reporting issuer within the meaning of the Act;
(c) to the best of its knowledge, it is not in default of
its listing agreement with the Exchange;
(d) its common shares are listed for trading on the
Exchange; and
(e) the common shares to be issued to the Subscriber
hereunder will, when issued, be issued and allotted as fully paid
and non-assessable common shares, free and clear of all liens,
charges and encumbrances and free of all pooling or escrow
restrictions.
7. The Company covenants and agrees with the Subscriber as
follows:
(a) it shall use its best efforts to have this agreement
accepted for filing by the Exchange (such acceptance being
referred to hereinafter as the "Regulatory Approval") as quickly
as reasonably practicable; PROVIDED THAT if Regulatory Approval
has not been obtained within 180 days of the date of this
agreement, the Subscription Proceeds, together with accrued
interest thereon, will be immediately returned by the Company to
the Subscriber, and this agreement will be void ab initio, and
the Subscriber will have no claim, right or action against the
Company;
(b) within 10 business days of the obtaining of Regulatory
Approval, it will issue the Private Placement Shares and Warrants
to the Subscriber;
(c) until Regulatory Approval has been obtained, it will
not deal with the Subscription Proceeds in any way.
8. The Subscriber hereby agrees to execute any and all further
documentation which may be required by the applicable securities
regulatory authorities with respect to this transaction.
9. The Subscriber hereby confirms that, in the event it is not
a resident of British Columbia, it will ensure that the
applicable securities legislation, order or regulatory policy
concerning the purchase, holding or resale of the securities
herein subscribed for is complied with.
10. This letter agreement may be executed in several parts in
the same form and such parts as so executed will together form
one original agreement and such parts, if more than one, will be
read together and construed as if all the signing parties hereto
had executed one copy of this letter agreement.
DATED as of the 16th day of May, 1997.
Yours very truly,
SUMMO MINERALS CORPORATION
Per: c/s
Director
James C. Dudley hereby agrees to the foregoing as of the 16th day
of May, 1997.
/s/ James C. Dudley
James C. Dudley
Appendix "A" to Subscription Agreement and Undertaking (Units)
with SUMMO MINERALS CORPORATION
ONLY U.S. SUBSCRIBERS NEED TO SIGN THIS
All capitalized terms herein, unless otherwise defined, have the
meaning ascribed thereto in the Private Placement Subscription
Agreement.
The Subscriber covenants, represents and warrants to the Company
that:
(a) it is a "U.S. Person" as defined in Regulation S under the
Securities Act of 1933 (United States) (as amended) (the "1933
Act");
(b) it has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and
risks of the investment and it is able to bear the economic risk
of loss of the investment;
(c) it is purchasing the Securities for investment only and not
with a view to resale or distribution and, in particular, it has
no intention to distribute either directly or indirectly any of
the Securities in the United States or to "U.S. Persons";
provided however that the Subscriber may sell or otherwise
dispose of any of the Private Placement Shares or Warrant Shares
pursuant to registration thereof pursuant to the 1933 Act and any
applicable State securities laws or under an exemption from such
registration requirements;
(d) it understands that the Securities have not been and will
not be registered under the 1933 Act and that the sale
contemplated hereby is being made in reliance on an exemption
from such registration requirements;
(e) it is acquiring the Securities for its own account or for
the account of an "accredited investor" as to which it exercises
sole investment discretion, and not with a view to any resale,
distribution or other disposition of the Securities in violation
of the United States securities laws;
(f) it satisfies one or more of the categories indicated below
(please place an "X" on the appropriate line:
____ Category 1 An organization described in Section
501(c)(3) of the United States Internal Revenue Code, a
corporation, a Massachusetts or similar business trust or
partnership, not formed for the specific purpose of acquiring the
Securities, with total assets in excess of $5,000,000 U.S.
____ Category 2 A natural person whose individual net worth,
or joint net worth with that person's spouse, at the date hereof
exceeds $1,000,000 U.S.;
____ Category 3 A natural person who had an individual income
in excess of $200,000 U.S. in each of the two most recent years
or joint income with that person's spouse in excess of $300,000
U.S. in each of those years and has a reasonable expectation of
reaching the same income level in the current year; or
____ Category 4. A "bank" as defined under Section (3)(a)(2)
of the 1933 Act or savings and loan association or other
institution as defined in Section 3(a)(5)(A) of the 1933 Act
acting in its individual or fiduciary capacity; a broker dealer
registered pursuant to Section 15 of the Securities Exchange Act
of 1934; an insurance company as defined in Section 2(13) of the
1933 Act; an investment company registered under the Investment
Company Act of 1940 or a business development company as defined
in Section 2(a)(48) of such act; a Small Business Investment
Company licensed by the U.S. Small Business Administration under
Section 301(c) or (d) of the Small Business Investment Act of
1958; a plan with total assets in excess of $5,000,000 U.S.
established and maintained by a state, a political subdivision
thereof, or an agency or instrumentality of a state or a
political subdivision thereof, for the benefit of its employees;
an employee benefit plan within the meaning of the Employee
Retirement Income Security Act of 1974 whose investment decisions
is made by a plan fiduciary, as defined in Section 3(21) of such
act, which is either a bank, savings and loan association,
insurance company, or registered investment adviser, or if the
employee benefit plan has total assets in excess of $5,000,000
U.S., or, if a self-directed plan, whose investment decisions are
made solely by persons that are accredited investors;
____ Category 5. A private business development company as
defined in Section 202(a)(22) of the Investment Advisers Act of
1940;
____ Category 6. A director or executive officer of the
Company;
____ Category 7. A trust with total assets in excess of
$5,000,000 U.S., not formed for the specific purpose of acquiring
the Shares, whose purchase is directed by a sophisticated person
as described in Rule 506(b)(2)(ii) under the 1933 Act; or
____ Category 8. An entity in which all of the equity owners
satisfy the requirements of one or more of the foregoing
categories.
(g) it acknowledges that it has not purchased the Securities as
a result of any form of general solicitation or general
advertising including advertisements, articles, notices or other
communications published in any newspaper, magazine or similar
media or broadcast over radio, or television, or any seminar or
meeting whose attendees have been invited by general solicitation
or general advertising;
(h) it agrees that if it decides to offer, sell or otherwise
transfer any of the Securities, it will not offer, sell or
otherwise transfer any of such Securities directly or indirectly,
unless:
(i) the sale is to the Company;
(ii) the sale is made outside the United States in a
transaction meeting the requirements of Rule 904 of Regulation S
under the 1933 Act and in compliance with applicable local laws
and regulations;
(iii) the sale is made pursuant to the exemption from the
registration requirements under the 1933 Act provided by Rule 144
thereunder and in accordance with any applicable state securities
or "Blue Sky" laws; or
(iv) the Securities are sold in a transaction that does not
require registration under the 1933 Act or any applicable U.S.
state laws and regulations governing the offer and sale of
securities, and it has prior to such sale furnished to the
Company an opinion of counsel reasonable satisfactory to the
Company;
(i) the Subscriber acknowledges that it has not purchased the
Securities as a result of, and will not itself engage in, any
"directed selling efforts" (as defined in Regulation S under the
1933 Act) in the United States in respect of the Securities which
would include any activities undertaken for the purpose of, or
that could reasonably be expected to have the effect of,
conditioning the market in the United States for the resale of
the Units; provided however that the Subscriber may sell or
otherwise dispose of any of the Securities pursuant to
registration of the Securities pursuant to the 1933 Act and any
applicable state securities laws or under an exemption from such
registration requirements and as otherwise provided herein;
(j) the Subscriber understands and acknowledges that upon the
issuance thereof, and until such time as the same is no longer
required under the applicable requirements of the 1933 Act or
applicable U.S. state laws and regulations, the certificates
representing any of the Securities will bear a legend and that
certificates representing Securities issued in exchange therefor
or in substitution thereof will also bear a legend; provided that
if the Securities are being sold under clause 8(b) above, the
legend may be removed by providing a declaration or legal opinion
satisfactory to counsel to the Company to the registrar and
transfer agent of the Company to the effect that the
requirements of Rule 904 of Regulation S under the 1933 Act and
applicable local laws and regulations have been complied with;
(k) the Subscriber consents to the Company making a notation on
its records or giving instruction to the registrar and transfer
agent of the Company in order to implement the restrictions on
transfer set forth and described herein; and
(l) the Subscriber, if an individual, is a resident of the State
or other jurisdiction in its address on Subscription Agreement
and Undertaking, or if the Subscriber is not an individual, the
office of the Subscriber at which the Subscriber received and
accepted the offer to purchase the Securities is the address
listed on the Subscription Agreement and Undertaking.
Date: May 16, 1997 Duly authorized signatory for
Subscriber
/s/ James C. Dudley
James C. Dudley
Print name of Subscriber
<PAGE>
SUBSCRIPTION AGREEMENT AND UNDERTAKING
(UNITS)
(U.S. and Non-U.S. Subscribers)
TO: Elisabeth C. Dudley
c/o Dudley & Company, 444 Madison Avenue
New York, N.Y., 10022
Dear Sirs:
Re: Summo Minerals Corporation (the "Company")
Subscription Agreement and Undertaking
1. Elisabeth C. Dudley (the "Subscriber") hereby agrees to
purchase from the Company and the Company agrees to sell to the
Subscriber 548,640 common shares (the "Private Placement Shares")
in the capital stock of the Company at and for a price of $1.00
Cdn. per share, for a total purchase price of $548,640 Cdn.
($400,000 U.S.) (the "Subscription Proceeds"), subject to the
satisfaction of the sole condition that the purchase and sale
documentation be accepted for filing by applicable securities
regulatory authorities. The Subscriber irrevocably commits the
full amount of the Subscription Proceeds and tenders herewith a
cheque or bank draft made payable to the Company in the full
amount thereof.
2. As further consideration for the purchase of the Private
Placement Shares, the Subscriber will be issued a
non-transferable Share Purchase Warrant (the "Warrant"),
conferring on the Subscriber the right to purchase up to an
additional 548,640 common shares (the "Warrant Shares") in the
capital stock of the Company exercisable at any time within two
years of the date of this agreement at a price of $1.25 Cdn. per
share.
3. The Subscriber hereby represents and warrants to the Company
that:
(a) the Subscriber is purchasing the Private Placement
Shares and Warrants as principal;
(b) the Subscriber is purchasing the Private Placement
Shares and Warrants as an investment and not for the purpose of
resale or other disposition; and
(c) the Subscriber has received independent legal advice
with respect to this transaction.
4. The Subscriber acknowledges and confirms that:
(a) the Private Placement Shares and Warrants are being
issued pursuant to exemptions from prospectus and registration
requirements set out in the Securities Act (British Columbia) and
the Securities Rules thereunder and the Securities Act (Ontario)
and the regulations thereunder (collectively the "Act"); and
(b) the Private Placement Shares, the Warrants and the
Warrant Shares (collectively the "Securities") have not been
registered under the United States Securities Act of 1933 (the
"1933 Act") and may not be offered or sold in the United States
unless registered under the 1933 Act and the securities laws of
all applicable states of the United States or an exemption from
such registration requirements is available, and that the Company
has no obligation or present intention of filing a registration
statement under the 1933 Act in respect of the Securities;
(c) the Subscriber either: (i) is a U.S. Person and
represents and warrants to the Company as set forth in Appendix A
hereto, or (ii) represents and warrants that:
(1) the Subscriber is not a "U.S. Person" and is not
acquiring the Securities for the account or benefit of a "U.S.
Person". For the purposes of this Subscription Agreement, a
"U.S. Person" means:
(A) a natural person resident in the United States;
(B) a partnership or corporation organized or
incorporated under the laws of the United States;
(C) an estate of which any executor or administrator
is a U.S. Person;
(D) a trust of which any trustee is a U.S. Person;
(E) any agency or branch of a foreign entity located
in the United States;
(F) a 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) a 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) a partnership or corporation if:
I. organized or incorporated under the laws of
any foreign jurisdiction; and
II. formed by a U.S. Person principally for the
purpose of investing in securities not registered under
the 1933 Act, unless it is organized or incorporated,
and owned, by accredited investors (as defined by
Regulation D under the 1933 Act) who are not natural
persons, estates or trusts.
(2) the Subscriber acknowledges that the certificates
representing the Warrants will bear a legend stating that the
Warrants and the Warrant Shares have not been registered under
the 1933 Act or the securities laws of any state of the United
States and the Warrants may not be exercised in the United States
or by or on behalf of a U.S. Person unless registered under the
1933 Act and the securities laws or all applicable states of the
United States or an exemption from such registration requirements
is available;
(3) the Subscriber acknowledges that any person who
exercises a Warrant will be required to provide to the Company:
(i) written certification that it is not a U.S. Person and the
Warrant is not being exercised on behalf of a U.S. Person; or
(ii) a written opinion of counsel to the effect that the Warrant
and the Warrant Shares have been registered under the 1933 Act or
are exempt from registration thereunder;
(4) no offers to sell the Securities were made by any
person to the Subscriber while the Subscriber was in the United
States; and
(5) the Subscriber was outside the United States at
the time of execution and delivery of this Subscription
Agreement.
5. The Subscriber acknowledges and confirms that:
(a) the Act and/or the current policies of The Toronto
Stock Exchange (the "Exchange") provide that the Private
Placement Shares and Warrant Shares may not be sold or otherwise
disposed of for a period of 12 months from the date of this
agreement (the "Hold Period") except where such disposition takes
place pursuant to an exemption from prospectus and registration
requirements under the Act or pursuant to a written Order of the
applicable governmental securities regulatory body;
(b) a legend indicating the Hold Period will be imprinted
on the share certificate(s) issued for the Private Placement
Shares and Warrant Shares;
(c) notwithstanding that it may lawfully dispose of the
Private Placement Shares and Warrant Shares during the Hold
Period, it may not do so until it has obtained the prior approval
of the Exchange;
(d) the purchase of the Private Placement Shares and
Warrants is a highly speculative investment but the Subscriber
has a net worth sufficient to permit it to afford a total loss of
its investment hereunder without a material effect on its
financial position;
(e) this transaction has not been reviewed by any
securities regulatory body other than the Exchange and then only
to ensure compliance with its policies relating to the terms of
the sale;
(f) it is in possession of all of the information relating
to the Company that is necessary in order to make an informed
investment decision;
(g) it is not acquiring the Private Placement Shares and
Warrants as a result of being aware of any information about the
material affairs of the Company that is not generally known to
the public save knowledge of this particular transaction; and
(h) upon the obtaining of "Regulatory Approval" (as
hereinafter defined), the Company will have unconditional access
to the Subscription Proceeds and accrued interest thereon.
6. The Company hereby represents and warrants to the Subscriber
that:
(a) it is a company duly incorporated under the laws of the
Province of British Columbia and is up-to-date with respect to
its filings with the applicable corporate registration agency;
(b) it is a reporting issuer within the meaning of the Act;
(c) to the best of its knowledge, it is not in default of
its listing agreement with the Exchange;
(d) its common shares are listed for trading on the
Exchange; and
(e) the common shares to be issued to the Subscriber
hereunder will, when issued, be issued and allotted as fully paid
and non-assessable common shares, free and clear of all liens,
charges and encumbrances and free of all pooling or escrow
restrictions.
7. The Company covenants and agrees with the Subscriber as
follows:
(a) it shall use its best efforts to have this agreement
accepted for filing by the Exchange (such acceptance being
referred to hereinafter as the "Regulatory Approval") as quickly
as reasonably practicable; PROVIDED THAT if Regulatory Approval
has not been obtained within 180 days of the date of this
agreement, the Subscription Proceeds, together with accrued
interest thereon, will be immediately returned by the Company to
the Subscriber, and this agreement will be void ab initio, and
the Subscriber will have no claim, right or action against the
Company;
(b) within 10 business days of the obtaining of Regulatory
Approval, it will issue the Private Placement Shares and Warrants
to the Subscriber;
(c) until Regulatory Approval has been obtained, it will
not deal with the Subscription Proceeds in any way.
8. The Subscriber hereby agrees to execute any and all further
documentation which may be required by the applicable securities
regulatory authorities with respect to this transaction.
9. The Subscriber hereby confirms that, in the event it is not
a resident of British Columbia, it will ensure that the
applicable securities legislation, order or regulatory policy
concerning the purchase, holding or resale of the securities
herein subscribed for is complied with.
10. This letter agreement may be executed in several parts in
the same form and such parts as so executed will together form
one original agreement and such parts, if more than one, will be
read together and construed as if all the signing parties hereto
had executed one copy of this letter agreement.
DATED as of the 16th day of May, 1997.
Yours very truly,
SUMMO MINERALS CORPORATION
Per: c/s
Director
Elisabeth C. Dudley hereby agrees to the foregoing as of the 16th
day of May, 1997.
/s/ Elisabeth C. Dudley
Elisabeth C. Dudley
Appendix "A" to Subscription Agreement and Undertaking (Units)
with SUMMO MINERALS CORPORATION
ONLY U.S. SUBSCRIBERS NEED TO SIGN THIS
All capitalized terms herein, unless otherwise defined, have the
meaning ascribed thereto in the Private Placement Subscription
Agreement.
The Subscriber covenants, represents and warrants to the Company
that:
(a) it is a "U.S. Person" as defined in Regulation S under the
Securities Act of 1933 (United States) (as amended) (the "1933
Act");
(b) it has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and
risks of the investment and it is able to bear the economic risk
of loss of the investment;
(c) it is purchasing the Securities for investment only and not
with a view to resale or distribution and, in particular, it has
no intention to distribute either directly or indirectly any of
the Securities in the United States or to "U.S. Persons";
provided however that the Subscriber may sell or otherwise
dispose of any of the Private Placement Shares or Warrant Shares
pursuant to registration thereof pursuant to the 1933 Act and any
applicable State securities laws or under an exemption from such
registration requirements;
(d) it understands that the Securities have not been and will
not be registered under the 1933 Act and that the sale
contemplated hereby is being made in reliance on an exemption
from such registration requirements;
(e) it is acquiring the Securities for its own account or for
the account of an "accredited investor" as to which it exercises
sole investment discretion, and not with a view to any resale,
distribution or other disposition of the Securities in violation
of the United States securities laws;
(f) it satisfies one or more of the categories indicated below
(please place an "X" on the appropriate line:
____ Category 1 An organization described in Section
501(c)(3) of the United States Internal Revenue Code, a
corporation, a Massachusetts or similar business trust or
partnership, not formed for the specific purpose of acquiring the
Securities, with total assets in excess of $5,000,000 U.S.
____ Category 2 A natural person whose individual net worth,
or joint net worth with that person's spouse, at the date hereof
exceeds $1,000,000 U.S.;
____ Category 3 A natural person who had an individual income
in excess of $200,000 U.S. in each of the two most recent years
or joint income with that person's spouse in excess of $300,000
U.S. in each of those years and has a reasonable expectation of
reaching the same income level in the current year; or
____ Category 4. A "bank" as defined under Section (3)(a)(2)
of the 1933 Act or savings and loan association or other
institution as defined in Section 3(a)(5)(A) of the 1933 Act
acting in its individual or fiduciary capacity; a broker dealer
registered pursuant to Section 15 of the Securities Exchange Act
of 1934; an insurance company as defined in Section 2(13) of the
1933 Act; an investment company registered under the Investment
Company Act of 1940 or a business development company as defined
in Section 2(a)(48) of such act; a Small Business Investment
Company licensed by the U.S. Small Business Administration under
Section 301(c) or (d) of the Small Business Investment Act of
1958; a plan with total assets in excess of $5,000,000 U.S.
established and maintained by a state, a political subdivision
thereof, or an agency or instrumentality of a state or a
political subdivision thereof, for the benefit of its employees;
an employee benefit plan within the meaning of the Employee
Retirement Income Security Act of 1974 whose investment decisions
is made by a plan fiduciary, as defined in Section 3(21) of such
act, which is either a bank, savings and loan association,
insurance company, or registered investment adviser, or if the
employee benefit plan has total assets in excess of $5,000,000
U.S., or, if a self-directed plan, whose investment decisions are
made solely by persons that are accredited investors;
____ Category 5. A private business development company as
defined in Section 202(a)(22) of the Investment Advisers Act of
1940;
____ Category 6. A director or executive officer of the
Company;
____ Category 7. A trust with total assets in excess of
$5,000,000 U.S., not formed for the specific purpose of acquiring
the Shares, whose purchase is directed by a sophisticated person
as described in Rule 506(b)(2)(ii) under the 1933 Act; or
____ Category 8. An entity in which all of the equity owners
satisfy the requirements of one or more of the foregoing
categories.
(g) it acknowledges that it has not purchased the Securities as
a result of any form of general solicitation or general
advertising including advertisements, articles, notices or other
communications published in any newspaper, magazine or similar
media or broadcast over radio, or television, or any seminar or
meeting whose attendees have been invited by general solicitation
or general advertising;
(h) it agrees that if it decides to offer, sell or otherwise
transfer any of the Securities, it will not offer, sell or
otherwise transfer any of such Securities directly or indirectly,
unless:
(i) the sale is to the Company;
(ii) the sale is made outside the United States in a
transaction meeting the requirements of Rule 904 of Regulation S
under the 1933 Act and in compliance with applicable local laws
and regulations;
(iii) the sale is made pursuant to the exemption from
the registration requirements under the 1933 Act provided by Rule
144 thereunder and in accordance with any applicable state
securities or "Blue Sky" laws; or
(iv) the Securities are sold in a transaction that does not
require registration under the 1933 Act or any applicable U.S.
state laws and regulations governing the offer and sale of
securities, and it has prior to such sale furnished to the
Company an opinion of counsel reasonable satisfactory to the
Company;
(i) the Subscriber acknowledges that it has not purchased the
Securities as a result of, and will not itself engage in, any
"directed selling efforts" (as defined in Regulation S under the
1933 Act) in the United States in respect of the Securities which
would include any activities undertaken for the purpose of, or
that could reasonably be expected to have the effect of,
conditioning the market in the United States for the resale of
the Units; provided however that the Subscriber may sell or
otherwise dispose of any of the Securities pursuant to
registration of the Securities pursuant to the 1933 Act and any
applicable state securities laws or under an exemption from such
registration requirements and as otherwise provided herein;
(j) the Subscriber understands and acknowledges that upon the
issuance thereof, and until such time as the same is no longer
required under the applicable requirements of the 1933 Act or
applicable U.S. state laws and regulations, the certificates
representing any of the Securities will bear a legend and that
certificates representing Securities issued in exchange therefor
or in substitution thereof will also bear a legend; provided that
if the Securities are being sold under clause 8(b) above, the
legend may be removed by providing a declaration or legal opinion
satisfactory to counsel to the Company to the registrar and
transfer agent of the Company to the effect that the requirements
of Rule 904 of Regulation S under the 1933 Act and applicable
local laws and regulations have been complied with;
(k) the Subscriber consents to the Company making a notation on
its records or giving instruction to the registrar and transfer
agent of the Company in order to implement the restrictions on
transfer set forth and described herein; and
(l) the Subscriber, if an individual, is a resident of the State
or other jurisdiction in its address on Subscription Agreement
and Undertaking, or if the Subscriber is not an individual, the
office of the Subscriber at which the Subscriber received and
accepted the offer to purchase the Securities is the address
listed on the Subscription Agreement and Undertaking.
Date: May 16, 1997 Duly authorized signatory for
Subscriber
/s/ Elisabeth C. Dudley
Elisabeth C. Dudley
Print name of Subscriber
<PAGE>
SUBSCRIPTION AGREEMENT AND UNDERTAKING
(UNITS)
(U.S. and Non-U.S. Subscribers)
TO: Henry C. Dudley
c/o Dudley & Company, 444 Madison Avenue
New York, N.Y., 10022
Dear Sirs:
Re: Summo Minerals Corporation (the "Company")
Subscription Agreement and Undertaking
1. Henry C. Dudley (the "Subscriber") hereby agrees to purchase
from the Company and the Company agrees to sell to the Subscriber
150,876 common shares (the "Private Placement Shares") in the
capital stock of the Company at and for a price of $1.00 Cdn. per
share, for a total purchase price of $150,876 Cdn. ($110,000
U.S.) (the "Subscription Proceeds"), subject to the satisfaction
of the sole condition that the purchase and sale documentation be
accepted for filing by applicable securities regulatory
authorities. The Subscriber irrevocably commits the full amount
of the Subscription Proceeds and tenders herewith a cheque or
bank draft made payable to the Company in the full amount
thereof.
2. As further consideration for the purchase of the Private
Placement Shares, the Subscriber will be issued a
non-transferable Share Purchase Warrant (the "Warrant"),
conferring on the Subscriber the right to purchase up to an
additional 150,876 common shares (the "Warrant Shares") in the
capital stock of the Company exercisable at any time within two
years of the date of this agreement at a price of $1.25 Cdn. per
share.
3. The Subscriber hereby represents and warrants to the Company
that:
(a) the Subscriber is purchasing the Private Placement
Shares and Warrants as principal;
(b) the Subscriber is purchasing the Private Placement
Shares and Warrants as an investment and not for the purpose of
resale or other disposition; and
(c) the Subscriber has received independent legal advice
with respect to this transaction.
4. The Subscriber acknowledges and confirms that:
(a) the Private Placement Shares and Warrants are being
issued pursuant to exemptions from prospectus and registration
requirements set out in the Securities Act (British Columbia) and
the Securities Rules thereunder and the Securities Act (Ontario)
and the regulations thereunder (collectively the "Act"); and
(b) the Private Placement Shares, the Warrants and the
Warrant Shares (collectively the "Securities") have not been
registered under the United States Securities Act of 1933 (the
"1933 Act") and may not be offered or sold in the United States
unless registered under the 1933 Act and the securities laws of
all applicable states of the United States or an exemption from
such registration requirements is available, and that the Company
has no obligation or present intention of filing a registration
statement under the 1933 Act in respect of the Securities;
(c) the Subscriber either: (i) is a U.S. Person and
represents and warrants to the Company as set forth in Appendix A
hereto, or (ii) represents and warrants that:
(1) the Subscriber is not a "U.S. Person" and is not
acquiring the Securities for the account or benefit of a "U.S.
Person". For the purposes of this Subscription Agreement, a
"U.S. Person" means:
(A) a natural person resident in the United States;
(B) a partnership or corporation organized or
incorporated under the laws of the United States;
(C) an estate of which any executor or administrator
is a U.S. Person;
(D) a trust of which any trustee is a U.S. Person;
(E) any agency or branch of a foreign entity located
in the United States;
(F) a 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) a 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) a partnership or corporation if:
I. organized or incorporated under the laws of
any foreign jurisdiction; and
II. formed by a U.S. Person principally for the
purpose of investing in securities not registered under
the 1933 Act, unless it is organized or incorporated,
and owned, by accredited investors (as defined by
Regulation D under the 1933 Act) who are not natural
persons, estates or trusts.
(2) the Subscriber acknowledges that the certificates
representing the Warrants will bear a legend stating that the
Warrants and the Warrant Shares have not been registered under
the 1933 Act or the securities laws of any state of the United
States and the Warrants may not be exercised in the United States
or by or on behalf of a U.S. Person unless registered under the
1933 Act and the securities laws or all applicable states of the
United States or an exemption from such registration requirements
is available;
(3) the Subscriber acknowledges that any person who
exercises a Warrant will be required to provide to the Company:
(i) written certification that it is not a U.S. Person and the
Warrant is not being exercised on behalf of a U.S. Person; or
(ii) a written opinion of counsel to the effect that the Warrant
and the Warrant Shares have been registered under the 1933 Act or
are exempt from registration thereunder;
(4) no offers to sell the Securities were made by any
person to the Subscriber while the Subscriber was in the United
States; and (5) the Subscriber was outside the United States at
the time of execution and delivery of this Subscription
Agreement.
5. The Subscriber acknowledges and confirms that:
(a) the Act and/or the current policies of The Toronto
Stock Exchange (the "Exchange") provide that the Private
Placement Shares and Warrant Shares may not be sold or otherwise
disposed of for a period of 12 months from the date of this
agreement (the "Hold Period") except where such disposition takes
place pursuant to an exemption from prospectus and registration
requirements under the Act or pursuant to a written Order of the
applicable governmental securities regulatory body;
(b) a legend indicating the Hold Period will be imprinted
on the share certificate(s) issued for the Private Placement
Shares and Warrant Shares;
(c) notwithstanding that it may lawfully dispose of the
Private Placement Shares and Warrant Shares during the Hold
Period, it may not do so until it has obtained the prior approval
of the Exchange;
(d) the purchase of the Private Placement Shares and
Warrants is a highly speculative investment but the Subscriber
has a net worth sufficient to permit it to afford a total loss of
its investment hereunder without a material effect on its
financial position;
(e) this transaction has not been reviewed by any
securities regulatory body other than the Exchange and then only
to ensure compliance with its policies relating to the terms of
the sale;
(f) it is in possession of all of the information relating
to the Company that is necessary in order to make an informed
investment decision;
(g) it is not acquiring the Private Placement Shares and
Warrants as a result of being aware of any information about the
material affairs of the Company that is not generally known to
the public save knowledge of this particular transaction; and (h)
upon the obtaining of "Regulatory Approval" (as hereinafter
defined), the Company will have unconditional access to the
Subscription Proceeds and accrued interest thereon.
6. The Company hereby represents and warrants to the Subscriber
that:
(a) it is a company duly incorporated under the laws of the
Province of British Columbia and is up-to-date with respect to
its filings with the applicable corporate registration agency;
(b) it is a reporting issuer within the meaning of the Act;
(c) to the best of its knowledge, it is not in default of
its listing agreement with the Exchange;
(d) its common shares are listed for trading on the
Exchange; and
(e) the common shares to be issued to the Subscriber
hereunder will, when issued, be issued and allotted as fully paid
and non-assessable common shares, free and clear of all liens,
charges and encumbrances and free of all pooling or escrow
restrictions.
7. The Company covenants and agrees with the Subscriber as
follows:
(a) it shall use its best efforts to have this agreement
accepted for filing by the Exchange (such acceptance being
referred to hereinafter as the "Regulatory Approval") as quickly
as reasonably practicable; PROVIDED THAT if Regulatory Approval
has not been obtained within 180 days of the date of this
agreement, the Subscription Proceeds, together with accrued
interest thereon, will be immediately returned by the Company to
the Subscriber, and this agreement will be void ab initio, and
the Subscriber will have no claim, right or action against the
Company;
(b) within 10 business days of the obtaining of Regulatory
Approval, it will issue the Private Placement Shares and Warrants
to the Subscriber;
(c) until Regulatory Approval has been obtained, it will
not deal with the Subscription Proceeds in any way.
8. The Subscriber hereby agrees to execute any and all further
documentation which may be required by the applicable securities
regulatory authorities with respect to this transaction.
9. The Subscriber hereby confirms that, in the event it is not
a resident of British Columbia, it will ensure that the
applicable securities legislation, order or regulatory policy
concerning the purchase, holding or resale of the securities
herein subscribed for is complied with.
10. This letter agreement may be executed in several parts in
the same form and such parts as so executed will together form
one original agreement and such parts, if more than one, will be
read together and construed as if all the signing parties hereto
had executed one copy of this letter agreement.
DATED as of the 16th day of May, 1997.
Yours very truly,
SUMMO MINERALS CORPORATION
Per: c/s
Director
Henry C. Dudley hereby agrees to the foregoing as of the 16th day
of May, 1997.
/s/ Henry C. Dudley
Henry C. Dudley
Appendix "A" to Subscription Agreement and Undertaking (Units)
with SUMMO MINERALS CORPORATION
ONLY U.S. SUBSCRIBERS NEED TO SIGN THIS
All capitalized terms herein, unless otherwise defined, have the
meaning ascribed thereto in the Private Placement Subscription
Agreement.
The Subscriber covenants, represents and warrants to the Company
that:
(a) it is a "U.S. Person" as defined in Regulation S under the
Securities Act of 1933 (United States) (as amended) (the "1933
Act");
(b) it has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and
risks of the investment and it is able to bear the economic risk
of loss of the investment;
(c) it is purchasing the Securities for investment only and not
with a view to resale or distribution and, in particular, it has
no intention to distribute either directly or indirectly any of
the Securities in the United States or to "U.S. Persons";
provided however that the Subscriber may sell or otherwise
dispose of any of the Private Placement Shares or Warrant Shares
pursuant to registration thereof pursuant to the 1933 Act and any
applicable State securities laws or under an exemption from such
registration requirements;
(d) it understands that the Securities have not been and will
not be registered under the 1933 Act and that the sale
contemplated hereby is being made in reliance on an exemption
from such registration requirements;
(e) it is acquiring the Securities for its own account or for
the account of an "accredited investor" as to which it exercises
sole investment discretion, and not with a view to any resale,
distribution or other disposition of the Securities in violation
of the United States securities laws;
(f) it satisfies one or more of the categories indicated below
(please place an "X" on the appropriate line:
____ Category 1 An organization described in Section
501(c)(3) of the United States Internal Revenue Code, a
corporation, a Massachusetts or similar business trust or
partnership, not formed for the specific purpose of acquiring the
Securities, with total assets in excess of $5,000,000 U.S.
____ Category 2 A natural person whose individual net worth,
or joint net worth with that person's spouse, at the date hereof
exceeds $1,000,000 U.S.;
____ Category 3 A natural person who had an individual income
in excess of $200,000 U.S. in each of the two most recent years
or joint income with that person's spouse in excess of $300,000
U.S. in each of those years and has a reasonable expectation of
reaching the same income level in the current year; or
____ Category 4. A "bank" as defined under Section (3)(a)(2)
of the 1933 Act or savings and loan association or other
institution as defined in Section 3(a)(5)(A) of the 1933 Act
acting in its individual or fiduciary capacity; a broker dealer
registered pursuant to Section 15 of the Securities Exchange Act
of 1934; an insurance company as defined in Section 2(13) of the
1933 Act; an investment company registered under the Investment
Company Act of 1940 or a business development company as defined
in Section 2(a)(48) of such act; a Small Business Investment
Company licensed by the U.S. Small Business Administration under
Section 301(c) or (d) of the Small Business Investment Act of
1958; a plan with total assets in excess of $5,000,000 U.S.
established and maintained by a state, a political subdivision
thereof, or an agency or instrumentality of a state or a
political subdivision thereof, for the benefit of its employees;
an employee benefit plan within the meaning of the Employee
Retirement Income Security Act of 1974 whose investment decisions
is made by a plan fiduciary, as defined in Section 3(21) of such
act, which is either a bank, savings and loan association,
insurance company, or registered investment adviser, or if the
employee benefit plan has total assets in excess of $5,000,000
U.S., or, if a self-directed plan, whose investment decisions are
made solely by persons that are accredited investors;
____ Category 5. A private business development company as
defined in Section 202(a)(22) of the Investment Advisers Act of
1940;
____ Category 6. A director or executive officer of the
Company;
____ Category 7. A trust with total assets in excess of
$5,000,000 U.S., not formed for the specific purpose of acquiring
the Shares, whose purchase is directed by a sophisticated person
as described in Rule 506(b)(2)(ii) under the 1933 Act; or
____ Category 8. An entity in which all of the equity owners
satisfy the requirements of one or more of the foregoing
categories.
(g) it acknowledges that it has not purchased the Securities as
a result of any form of general solicitation or general
advertising including advertisements, articles, notices or other
communications published in any newspaper, magazine or similar
media or broadcast over radio, or television, or any seminar or
meeting whose attendees have been invited by general solicitation
or general advertising;
(h) it agrees that if it decides to offer, sell or otherwise
transfer any of the Securities, it will not offer, sell or
otherwise transfer any of such Securities directly or indirectly,
unless:
(i) the sale is to the Company;
(ii) the sale is made outside the United States in a
transaction meeting the requirements of Rule 904 of Regulation S
under the 1933 Act and in compliance with applicable local laws
and regulations;
(iii) the sale is made pursuant to the exemption from
the registration requirements under the 1933 Act provided by Rule
144 thereunder and in accordance with any applicable state
securities or "Blue Sky" laws; or
(iv) the Securities are sold in a transaction that does not
require registration under the 1933 Act or any applicable U.S.
state laws and regulations governing the offer and sale of
securities, and it has prior to such sale furnished to the
Company an opinion of counsel reasonable satisfactory to the
Company;
(i) the Subscriber acknowledges that it has not purchased the
Securities as a result of, and will not itself engage in, any
"directed selling efforts" (as defined in Regulation S under the
1933 Act) in the United States in respect of the Securities which
would include any activities undertaken for the purpose of, or
that could reasonably be expected to have the effect of,
conditioning the market in the United States for the resale of
the Units; provided however that the Subscriber may sell or
otherwise dispose of any of the Securities pursuant to
registration of the Securities pursuant to the 1933 Act and any
applicable state securities laws or under an exemption from such
registration requirements and as otherwise provided herein;
(j) the Subscriber understands and acknowledges that upon the
issuance thereof, and until such time as the same is no longer
required under the applicable requirements of the 1933 Act or
applicable U.S. state laws and regulations, the certificates
representing any of the Securities will bear a legend and that
certificates representing Securities issued in exchange therefor
or in substitution thereof will also bear a legend; provided that
if the Securities are being sold under clause 8(b) above, the
legend may be removed by providing a declaration or legal opinion
satisfactory to counsel to the Company to the registrar and
transfer agent of the Company to the effect that the requirements
of Rule 904 of Regulation S under the 1933 Act and applicable
local laws and regulations have been complied with;
(k) the Subscriber consents to the Company making a notation on
its records or giving instruction to the registrar and transfer
agent of the Company in order to implement the restrictions on
transfer set forth and described herein; and
(l) the Subscriber, if an individual, is a resident of the State
or other jurisdiction in its address on Subscription Agreement
and Undertaking, or if the Subscriber is not an individual, the
office of the Subscriber at which the Subscriber received and
accepted the offer to purchase the Securities is the address
listed on the Subscription Agreement and Undertaking.
Date: May 16, 1997 Duly authorized signatory for
Subscriber
/s/ Henry C. Dudley
Henry C. Dudley
Print name of Subscriber
