__________
|
$1.00 POST-SPLT PRIVATE PLACEMENT
SUBSCRIPTION AGREEMENT
|
Between:
DARLINGTON MINES LTD.
And:
THE
UNDERSIGNED SUBSCRIBER
Darlington
Mines Ltd.
__________
-- $1.00t Post-split Private Placement Subscription Agreement --
-- Darlington Mines Ltd. -- |
SIGNATURE
PAGE/SUBSCRIBER STATEMENT
TO
THE $1.00 POST-SPLIT PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT
OF DARLINGTON
MINES LTD.
SUBSCRIBER’S
STATEMENT – the undersigned subscriber (the “Subscriber”) is
a sophisticated investor, the Subscriber has sought such independent counsel as
the Subscriber considers necessary and the Subscriber has read the attached “$1.00
Post-split Private Placement Subscription Agreement” (the “Agreement”)
carefully and accepts, agrees and acknowledges the representations and terms
thereof in full and without exception and agrees that such Agreement
constitutes the entire agreement between Darlington Mines Ltd. (the “Company”)
and the Subscriber and that there are no collateral representations or
agreements between the same.
The
Company is contemplating a stock-split on a 12 new for 1 old basis and is
currently offering, on a private placement basis, post-split common shares of
the Company (each a “Post-split Share”), at a subscription price of U.S. $1.00,
The within private placement offering by the Company is not subject to any
minimum subscription. The Company offers, and the Subscriber accepts, the Post-split
Shares on the terms and conditions as set forth in this Agreement.
Number of Post-split Shares subscribed for at U.S. $1.00:
Post-split
Shares.
Total Subscription
Price payable: U.S. $1.00 x # of Post-split Shares = U.S. $
.
Dated
at __________, __________, on this _____ day of December, 2010.
Name
of Subscriber - please print
By:
Official
Capacity or Title - please print
Signature
of Subscriber
Please
print name of individual whose signature appears above if different than the
Subscriber
| Subscriber’s
Telephone Number: |
|
| Subscriber’s
E-mail address: |
|
IF
THE SUBSCRIBER IS NOT A U.S. RESIDENT, THE SUBSCRIBER
MUST COMPLETE AND SIGN ATTACHMENT “I” IMMEDIATELY FOLLOWING THIS SIGNATURE
PAGE/SUBSCRIBER STATEMENT AND COMPLETE THE MISSING
-- $1.00t Post-split Private Placement Subscription Agreement --
-- Darlington Mines Ltd. -- |
- 2 -
INFORMATION AND CIRCLE THE
APPLICABLE CATEGORY(IES) (A) THROUGH (P) AS SET FORTH IN SECTION 3.4(af)(i) OF
THE ATTACHED AGREEMENT.
Acceptance
by the Company:
DARLINGTON
MINES LTD. hereby accepts the above subscription by the Subscriber on
this _____ day of __________, 2011.
| was
hereunto affixed in the presence of: |
) (C/S) |
__________
-- $1.00t Post-split Private Placement Subscription Agreement --
-- Darlington Mines Ltd. -- |
Attachment
“I”
TO
THE $1.00 POST-SPLIT PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT
OF DARLINGTON
MINES LTD.
SUBSCRIBER’S
CERTIFICATE
In addition to the covenants,
representations and warranties contained in the “$1.00 Post-split Private
Placement Subscription Agreement” of the Company, to which this Attachment “I”
– “Subscriber’s Certificate” is attached, the undersigned Subscriber covenants, represents and warrants to the
Company that the Subscriber is
purchasing the Post-split Shares as principal, that the Subscriber is resident
in the jurisdiction set out on the signature page thereof and that the
Subscriber:
| 1. |
is an “accredited investor”, as defined in National
Instrument 45-106 –Prospectus and Registration Exemptions by virtue of
being
{please check the appropriate category or categories where applicable}: |
| [ ] |
(a) |
any
national, federal, state, provincial, territorial or municipal government of or
in any foreign jurisdiction, or any agency of that government; |
| [ ] |
(b) |
an
individual who, either alone or with a spouse, beneficially owns, directly or
indirectly, financial assets having an aggregate realizable value that before
taxes, but net of any related liabilities, exceeds $1,000,000; |
| [ ] |
(c) |
an
individual whose net income before taxes exceeded $200,000 in each of the two
most recent calendar years or whose net income before taxes combined with that
of a spouse exceeded $300,000 in each of the two most recent calendar years and
who, in either case, reasonably expects to exceed that net income level in the
current calendar year; |
| [ ] |
(d) |
an
individual who, either alone or with a spouse, has net assets of at least
$5,000,000; |
| [ ] |
(e) |
a
person, other than an individual or investment fund, that has net assets of at
least $5,000,000 as shown on its most recently prepared financial statements; |
| [ ] |
(f) |
an
investment fund that distributes or has distributed its securities only to |
| |
(i) |
a
person that is or was an accredited investor at the time of the distribution; |
| |
(ii) |
a
person that acquires or acquired securities in the circumstances referred to in
sections 2.10 [Minimum amount investment] and 2.19 of National Instrument
45-106 –Prospectus and Registration Exemptions [Additional investment
in investment funds]; or |
| |
(iii) |
a
person described in paragraph (i) or (ii) that acquires or acquired securities
under section 2.18 of National Instrument 45-106 –Prospectus and
Registration Exemptions [Investment fund reinvestment]; |
-- $1.00t Post-split Private Placement Subscription Agreement --
-- Darlington Mines Ltd. -- |
- 2 -
| [ ] |
(g) |
a
person in respect of which all of the owners of interests, direct, indirect or
beneficial, except the voting securities required by law to be owned by
directors, are persons that are accredited investors; |
| [ ] |
(h) |
an
investment fund that is advised by a person registered as an adviser or a
person that is exempt from registration as an adviser; or |
Dated
at __________, __________, on this _____ day of December, 2010.
Name
of Subscriber - please print
By:
Official
Capacity or Title - please print
Signature
of Subscriber
Please
print name of individual whose signature appears above if different than the
Subscriber
| Subscriber’s
Telephone Number: |
|
| Subscriber’s
E-mail address: |
|
__________
-- $1.00t Post-split Private Placement Subscription Agreement --
-- Darlington Mines Ltd. -- |
$1.00 POST-SPLIT PRIVATE PLACEMENT
SUBSCRIPTION AGREEMENT
THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE “ACT”), OR THE LAWS OF ANY STATE, AND ARE BEING
ISSUED IN RELIANCE UPON REGULATION S PROMULGATED UNDER THE ACT. THESE
SECURITIES MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN
THE ABSENCE OF REGISTRATION, THE AVAILABILITY OF AN EXEMPTION FROM SUCH
REGISTRATION OR COMPLIANCE WITH REGULATION S. THE STOCK TRANSFER AGENT HAS
BEEN ORDERED TO EFFECTUATE TRANSFERS ONLY IN ACCORDANCE WITH THE ABOVE
INSTRUCTIONS.
UNIT PRIVATE PLACEMENT OFFERING
| To: |
DARLINGTON
MINES LTD. (the “Company”), with an address for notice and delivery located at 20A,
Time Centre 33-55 Hollywood Road, Central Hong Kong. |
The
Company is offering (collectively, the “Offering”), on a private
placement basis, Post-split Shares of the Company to eligible investors (each
such an investor who subscribes to this Offering by this document is
hereinafter referred to as the “Subscriber”), at a subscription price of
U.S. $1.00. The Company offers, and the Subscriber accepts, the Post-split
Shares on the terms and conditions as set forth in this subscription agreement
(the “Agreement”).
Article 1
SUBSCRIPTION FOR POST-SPLIT SHARES
1.1 Subscription
for Post-split Shares. Based upon the hereinafter terms, conditions,
representations, warranties and covenants given by each party to the other, the
Subscriber hereto hereby irrevocably subscribes for and agrees to purchase the
number of Post-split Shares of the Company set forth on the Signature
Page at the beginning of this Agreement at a subscription price of U.S. $1.00,
for aggregate consideration (the “Subscription Price”) as set forth on
the Signature Page at the beginning of this Agreement.
1.2 Acceptance
of subscription. The Company, upon acceptance by its Board of
Directors (the “Board”) of all or part of this subscription Agreement,
agrees to issue the accepted number of Post-split Shares, as fully paid and
non-assessable, and as consideration for the Subscriber’s subscription, and to
refund any excess subscription monies of the Subscription Price of any
non-accepted portion of this subscription Agreement.
1.3 Subscriber’s
eligibility for subscription. The Subscriber acknowledges and
warrants (and has made diligent inquiries to so determine or has the
sophistication and knowledge to know the Subscriber’s status without concern of
error), on which the Company relies, that the Subscriber is purchasing the Post-split
Shares on a private basis and without infraction of or impedance by his
domicile laws due to one or more of the following:
| |
(a) |
the Subscriber is an eligible
and exempt investor under the laws of the Subscriber’s domicile by either being
a person who complies with exemptions from prospectus requirements or is
otherwise exempt by virtue of the Subscriber’s wealth, income and investment
knowledge or capacity; or |
-- $1.00t Post-split Private Placement Subscription Agreement --
-- Darlington Mines Ltd. -- |
- 2 -
| |
(b) |
the
Subscriber is subscribing for a value in Post-split Shares constituting an
exempt investment under the laws of the Subscriber’s domicile; or |
| |
(c) |
the
Subscriber’s domicile laws do not restrict investment; and |
| |
(d) |
where the Subscriber has
completed the appropriate portions of this Agreement and its related Appendices
and the completion of the same, whether signed or not, constitute a true and
accurate statement by the Subscriber. |
For
the purposes of this Agreement it is hereby acknowledged and agreed that “Securities”
is hereinafter collectively defined to mean the Post-split Shares.
1.4 Risks
of subscription. The Subscriber acknowledges that no party
independent of the Company has made or will make any opinion or representations
on the merits or risks of an investment in any of the Securities unless sought
out by the Subscriber; which the Subscriber is encouraged to do. The
Subscriber is aware that this investment is a speculative and risky investment,
the Subscriber warrants that it could tolerate the full loss of the investment
without significant or material impact on the Subscriber’s financial condition.
Article 2
METHOD OF SUBSCRIPTION AND ACCEPTANCE BY THE COMPANY
2.1 Method
of subscription. It is hereby acknowledged and agreed by the parties
hereto that any subscription for Post-split Shares shall be made by the Subscriber) by emailing to the Company’s counsel, Mark
Lee of Greenberg Traurig (the “Company’s Counsel”), at leema@gtlaw.com,
a completed and executed copy of this Agreement together with all applicable
Appendices hereto. Funds are to be wired pursuant to wiring instructions
attached to this subscription agreement as Exhibit “A”.
In this regard, and should the Subscriber’s
subscription and/or Subscription Price payment be submitted to the Company’s
Counsel, in trust or otherwise (as above in respect to the wire transfer), then
the Subscriber agrees that the Company’s Counsel shall have no accountability
to the Subscriber whatsoever and acknowledges that the Company’s Counsel is
merely a recipient for the Company and has no obligation of any nature to the
Subscriber. Under no circumstances shall the Company’s Counsel be considered
to be giving legal or other advice or services to the Subscriber and no
communication between the Subscriber and the Company’s Counsel shall be
considered advice (at the most only administrative subscription assistance on
behalf of the Company) but the Subscriber shall rely solely and exclusively on
the Subscriber’s own judgment and the advice of the Subscriber’s own counsel.
2.2 Acceptance
of subscription or return of Subscription Price by the Company. The
Subscriber acknowledges that the Company will be accepting subscriptions for Post-split
Shares on a first come, first serve, basis. As a consequence the Company, upon
acceptance by its Board of all or part of this subscription Agreement (the “Acceptance”),
hereby agrees to issue the accepted number of Post-split Shares, as fully paid
and non-assessable, and as consideration for the Subscriber’s subscription, and
to promptly refund any excess subscription monies of the Subscription Price of
any non-accepted portion of this subscription Agreement. In this regard the
Subscriber acknowledges that,
although
Post-split Shares may be
issued to other subscribers concurrently with the Company’s Acceptance of all
or part of this subscription Agreement, there may be other sales of Post-split
Shares by the Company, some or
all of which may close before or after the Acceptance herein. The Subscriber
further acknowledges that there is a risk that insufficient funds may be raised
by the Company upon the Company’s Acceptance of all or part of this
subscription Agreement to fund the Company’s objectives and that further
closings may not take place after Acceptance herein.
-- $1.00t Post-split Private Placement Subscription Agreement --
-- Darlington Mines Ltd. -- |
- 3 -
2.3 Use
of funds before and after Acceptance. The Company
agrees that the Subscription Price will be held by the Company’s Counsel for
the benefit of the Subscriber to reserve the Subscriber’s subscription
and, prior to Acceptance, such funds shall not be considered a loan and shall
not bear interest but shall constitute solely a reservation of subscription. The
Subscriber shall not demand return of its Subscription Price monies unless the Post-split
Shares have not been issued for a period in excess of 90 calendar days from the
date of this subscription and such demand may be fulfilled by Acceptance and
delivery of subscribed Post-split Shares or return of funds at the Company’s
sole and absolute discretion. The Subscriber acknowledges that the funds to be
raised from all Post-split Shares are to be employed for the business of the
Company in accordance with management’s determination as to the best use of the
same for the Company’s business plans. Notwithstanding any disclosure document
or offering memorandum or prospectus provided concurrent with this
subscription, the Company reserves the right at any time to alter its business
plans in accordance with management’s appreciation of the market for the goods
and services of the Company and the best use of the Company’s funds to advance
its business, whether present or future.
2.4. Securities
issued at different prices and characteristics. The Subscriber
acknowledges that the Company will issue its securities at different prices
which may occur sequentially, from time-to-time, or at the same time and prices
in the future may be lower than now. The Company will also issue offerings
which have warrants, or other benefits, attached and some offerings which do
not. Not all subscribers will receive common shares, or other share classes,
of the Company at the same price and such may be issued at vastly different
prices to that of the Subscriber. For example, however, without limitation, the
Company will or may issue securities at nominal prices as ‘founders shares’
(which may or will constitute millions of securities, as determined solely by
the Board) or for developmental assets (which cannot be valued and so may be
assigned a nominal value on the Company’s books) or for services or to attract
expertise or management talent or other circumstances considered advisable by
the Board. Such issuance at different prices are made by the Board in its
judgment as to typical structuring for a company such as the Company, to
incentivise, reward and to provide a measure of developmental control, to
acquire assets or services which the Board considers necessary or advisable for
the Company’s development and success and other such considerations in the Board’s
judgment. The Company may or will acquire debt and/or equity financings in the
future required or advisable, as determined by the Board, in the course of the
Company’s business development. The Subscriber acknowledges these matters,
understands that the Subscriber’s investment is not necessarily the most
advantageous investment in the Company and authorizes the Board now and
hereafter to use its judgment to make such issuances whether such issuances are
at a lesser, equal or greater price than that of the Subscriber and whether
such is prior to, concurrent with or subsequent to the Subscriber’s investment
herein.
2.5 Delivery
of Shares. The Company, promptly after the Acceptance by
its Board of all or part of this subscription Agreement, agrees to deliver to the Subscriber a Share
certificate for the accepted number of Post-split Shares purchased by the
Subscriber under this subscription Agreement and registered in the name of the
Subscriber.
Article 3
INVESTMENT SUBSCRIPTION TERMS, CORPORATE DISCLOSURE AND
GENERAL SUBSCRIBER ACKNOWLEDGEMENTS AND WARRANTIES
3.1 Description
of the Post-split Shares. The Company is issuing Post-split Shares at
a price of U.S. $1.00. The Post-split Shares are a part of the common shares
of the Company presently authorized. Copies of the constating documents of the
Company describing the common shares and the rights of shareholders are
available upon request.
-- $1.00t Post-split Private Placement Subscription Agreement --
-- Darlington Mines Ltd. -- |
- 4 -
3.2 Release
of liability and indemnity. The Subscriber acknowledges and agrees
that, in consideration, in part, of the Company’s within Acceptance of this
subscription, the Subscriber hereby does hereby release, remise and forever
discharge each of the Company and its respective subsidiaries, directors,
officers, employees, attorneys, agents, executors, administrators, successors
and assigns and the Company’s Counsel, of and from all manner of action and
actions, causes of action, suits, debts, dues, accounts, bonds, covenants,
contracts, claims, damages and demands, whether known or unknown, suspected or
unsuspected and whether at law or in equity, which against either of the
Company and/or any of its respective subsidiaries, directors, officers,
employees, attorneys, agents, executors, administrators, successors and assigns
and the Company’s Counsel, the Subscriber ever had, now has, or which any of
the Subscriber’s respective successors or assigns, or any of them hereafter
can, shall or may have by reason of any matter arising from the within subscription
or the use of funds or the operation of the Company (collectively,
the “Release”) except only for gross negligence or
fraud (and such shall constitute only objective willful act of objective
material wrongdoing). The Subscriber shall hold harmless and indemnify
the Company from and against, and shall compensate and reimburse the same for,
any loss, damage, claim, liability, fee (including reasonable attorneys’ fees),
demand, cost or expense (regardless of whether or not such loss, damage, claim,
liability, fee, demand, cost or expense relates to a third-party claim) that is
directly or indirectly suffered or incurred by the Company, or to which the
Company becomes subject, and that arises directly or indirectly from, or relates
directly or indirectly to, any inaccuracy in or breach of any representation,
warranty, covenant or obligation of the Subscriber contained in this
Agreement. This Release is irrevocable and will not terminate in any
circumstances.
3.3 The
Subscriber’s understandings and acknowledgments. The Subscriber hereby
acknowledges and agrees that:
| |
(a) |
Further financings: the
Company may issue further offerings in the future similar to the within Offering
which may be at higher or lower prices (as determined by the Company in
accordance with its appreciation of market conditions). The Company may, and
will, acquire debt and/or equity financings in the future required or advisable
in the course of the Company’s business development; |
| |
(b) |
Withdrawal or revocation:
this Agreement is given for valuable consideration and shall not be withdrawn
or revoked by the Subscriber once tendered to the Company with the Subscription
Price; |
| |
(c) |
Agreement to be bound:
the Subscriber hereby specifically agrees to be bound by the terms of this
Agreement as to all particulars hereof and hereby reaffirms the
acknowledgments, representations and powers as set forth in this Agreement; |
| |
(d) |
Reliance on Subscriber’s
representations: the Subscriber understands that the Company will rely on
the acknowledgments, representations and covenants of the Subscriber contained
herein in determining whether a sale of the Post-split Shares to the Subscriber
is in compliance with applicable securities laws. The Subscriber warrants that
all acknowledgments, representations and covenants are true and accurate; and |
| |
(e) |
Waiver of pre-emptive
rights: the Subscriber hereby grants, conveys and vests unto the
President of the Company, or unto such other nominee or nominees of the
President of the Company as the President of the Company may determine, from
time to time, in the President’s sole and absolute discretion, as the
Subscriber’s power of attorney solely for the purpose of waiving any prior or
pre-emptive rights which the Subscriber may have to further issues of equity by
the Company under applicable corporate and securities laws. |
-- $1.00t Post-split Private Placement Subscription Agreement --
-- Darlington Mines Ltd. -- |
- 5 -
3.4 The
Subscriber’s representations and warranties. The Subscriber hereby
represents and warrants that:
| |
(a) |
Not a U.S. Person: if the Subscriber
is not a resident of the United States, the Subscriber:
(i) is not a U.S. Person (as defined in Rule 902 of Regulation S (“Regulation
S”) under the U.S. Act, which definition includes, but is not limited to,
any natural person resident in the United States, any corporation or
partnership incorporated or organized under the laws of the United States or
any estate or trust of which any executor, administrator or trustee is a U.S.
Person; (ii) is not purchasing any of the Securities for the account or benefit of any U.S. Person or for offering,
resale or delivery for the account or benefit of any U.S. Person or for the
account of any person in any jurisdiction other than the jurisdiction set out
in the name and address of the Subscriber set forth hereinbelow; and (iii) was not
offered any
Post-split Shares in the United States and was outside
the United States at the time of execution and delivery of this Agreement; |
| |
(b) |
No registration and sales
under Regulation S: if the Subscriber is not a resident of the United
States: (i) the Subscriber acknowledges that the Securities have not been registered under the U.S. Act; (ii) the Subscriber
agrees to resell the Securities only
in accordance with the provisions of Regulation S, pursuant to a registration
under the U.S. Act or pursuant to an available exemption from such
registration, and that hedging transactions involving the Securities may not be conducted unless in compliance with the U.S. Act; (iii) the
Subscriber understands that any certificate representing the Securities may bear a legend setting forth the foregoing
restrictions; and (iv) the Subscriber understands that the Securities are restricted within the meaning of “Rule 144” promulgated
under the U.S. Act; that the exemption from registration under Rule 144 will
not be available in any event for at least one year from the date of purchase
and payment of the Securities by the Subscriber,
and even then will not be available unless (i) a public trading market then
exists for the common stock of the Company, (ii) adequate information
concerning the Company is then available to the public and (iii) other terms
and conditions of Rule 144 are complied with; and that any sale of the Securities may be made by the Subscriber only in limited amounts in accordance
with such terms and conditions; |
| |
(c) |
No U.S. beneficial
interest: if the Subscriber is not a resident of the United States, no U.S. Person, either directly or
indirectly, has any beneficial interest in any of the Securities acquired by the Subscriber hereunder, nor does the Subscriber have any
agreement or understanding (written or oral) with any U.S. Person respecting: |
| |
(i) |
the transfer or any assignment of any rights or
interest in any of the Securities; |
| |
(ii) |
the division of profits, losses, fees, commissions or
any financial stake in connection with this subscription; or |
| |
(iii) |
the voting of the Securities; |
-- $1.00t Post-split Private Placement Subscription Agreement --
-- Darlington Mines Ltd. -- |
- 6 -
| |
(d) |
Experience: the Subscriber has the requisite knowledge
and experience in financial and business matters for properly evaluating the
risks of an investment in the Company; |
| |
(e) |
Information: the Subscriber has received all information
regarding the Company reasonably requested by the Subscriber; |
| |
(f) |
Risk: the Subscriber understands that an
investment in the Company involves certain risks of which the Subscriber has
taken full cognizance, and which risks the Subscriber fully understands; |
| |
(g) |
Adequacy of information:
the Subscriber has been given
the opportunity to ask questions of, and to receive answers from, the Company
concerning the terms and conditions of the Offering and to obtain additional
information necessary to verify the accuracy of the information contained in
the information described in paragraph (e) above, or such other information as
the Subscriber desired in order to evaluate an investment in the Company; |
| |
(h) |
Residency: the residence of the Subscriber as set forth
hereinbelow is the true and correct residence of the Subscriber and the
Subscriber has no present intention of becoming a resident or domiciliary of
any other jurisdiction; |
| |
(i) |
Independent investigation:
in making a decision to invest
in the Company the Subscriber has relied solely upon independent investigations
made by the Subscriber; |
| |
(j) |
Principal: the
Subscriber is purchasing the Post-split Shares as principal for the Subscriber’s
own account and not for the benefit of any other person, except as otherwise
stated herein, and not with a view to the resale or distribution of all or any
of the Post-split Shares; |
| |
(k) |
Decision to purchase:
the decision of the Subscriber to enter into this Agreement and to purchase Post-split
Shares pursuant hereto has been based only on the representations of this
Agreement. It is not made on other information relating to the Company and not
upon any oral representation as to fact or otherwise made by or on behalf of
the Company or any other person. The Subscriber agrees that the Company
assumes no responsibility or liability of any nature whatsoever for the
accuracy, adequacy or completeness of any business plan information which has been
created based upon the Company’s management experience. In particular, and
without limiting the generality of the foregoing, the decision to subscribe for
Post-split Shares has not been influenced by: |
| |
(i) |
newspaper, magazine or other
media articles or reports related to the Company or its business; |
| |
(ii) |
promotional literature or
other materials used by the Company for sales or marketing purposes; or |
| |
(iii) |
any representations, oral or
otherwise, that the Company will become a listed company, that any of the Securities will be repurchased or have any
guaranteed future realizable value or that there is any certainty as to the
success of the Company or the liquidity or value of any of the Securities; |
-- $1.00t Post-split Private Placement Subscription Agreement --
-- Darlington Mines Ltd. -- |
- 7 -
| |
(l) |
Advertisements:
the Subscriber acknowledges that the Subscriber has not purchased Post-split
Shares as a result of any 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; |
| |
(m) |
Information
not received: the Subscriber has not received, nor has the Subscriber
requested, nor does the Subscriber have any need to receive, any offering
memorandum or any other document (other than financial statements or any other
document the content of which is prescribed by statute or regulation)
describing the business and affairs of the Company which has been prepared for
delivery to, and review by, prospective subscribers in order to assist them in
making an investment decision in respect of the Post-split Shares, and the
Subscriber has not become aware of any advertisement in printed media of
general and regular paid circulation, radio or television with respect to the
distribution of the Post-split Shares; |
| |
(n) |
Information
received: the Subscriber has had access to such additional information,
if any, concerning the Company as the Subscriber has considered necessary in
connection with the Subscriber’s investment decision to acquire the Post-split
Shares; |
| |
(o) |
Satisfaction with
information received: the Subscriber acknowledges that, to the Subscriber’s
satisfaction: |
| |
(i) |
the Subscriber has either
had access to or has been furnished with sufficient information regarding the
Company and the terms of this investment transaction to the Subscriber’s
satisfaction; |
| |
(ii) |
the Subscriber has been
provided the opportunity to ask questions concerning this investment transaction
and the terms and conditions thereof and all such questions have been answered
to the Subscriber’s satisfaction; and |
| |
(iii) |
the Subscriber has been
given ready access to and an opportunity to review any information, oral or
written, that the Subscriber has requested concurrent with or as a part of this
Agreement; |
| |
(p) |
Economic risk: the
Subscriber has such knowledge and experience in financial and business affairs
as to be capable of evaluating the merits and risks of the Subscriber’s
investment in and to the Securities, and the
Subscriber is able to bear the economic risk of a total loss of the Subscriber’s
investment in and to any of the Securities; |
| |
(q) |
Speculative investment:
the Subscriber understands that an investment in the Securities is a speculative investment and
that there is no guarantee of success of the Company’s management’s plans.
Management’s plans are an effort to apply present knowledge and experience to
project a future course of action which is hoped will result in financial
success employing the Company’s assets and with the present level of management’s
skills and of those whom the Company will need to attract (which cannot be
assured). Additionally, all plans are capable of being frustrated by new or
unrecognized or unappreciated present or future circumstances which can
typically not be accurately, or at all, predicted; |
-- $1.00t Post-split Private Placement Subscription Agreement --
-- Darlington Mines Ltd. -- |
- 8 -
| |
(r) |
Address: the
Subscriber is resident as set out on the last page of this Agreement as the “Subscriber’s
Address”, and the address as set forth on the last page of this Agreement is
the true and correct address of the Subscriber; |
| |
(s) |
Risk and resale
restriction: the Subscriber is aware of the risks and other
characteristics of the Securities and of the fact that the Subscriber will
not be able to resell the Securities except in accordance with the applicable
securities legislation and regulatory policy; |
| |
(t) |
Representations
as to resale: no person has made to the Subscriber any written or oral
representations: |
| |
(i) |
that
any person will resell or repurchase any of the Securities; |
| |
(ii) |
that
any person will refund the purchase of any of the Securities; |
| |
(iii) |
as
to the future price or value of any of the Securities; or |
| |
(iv) |
that
any of the
Securities will be listed and posted for trading on any stock exchange,
over-the-counter or bulletin board market, or that application has been made to
list and post any of the Securities for trading on any stock exchange, over-the-counter or bulletin board
market; and |
| |
the Subscriber
will not resell any of the Securities except in accordance with the provisions
of applicable securities legislation and stock exchange, over-the-counter and/or bulletin board
market
rules; |
| |
(u) |
Reports and
undertakings: if required by applicable securities legislation, policy or
order or by any securities commission, stock exchange or other regulatory
authority, the Subscriber will
execute and otherwise assist the Company in filing such reports, undertakings
and other documents as may be reasonably required with respect to the issue of
the Post-split Shares; |
| |
(v) |
Resale
restrictions: the Subscriber has been independently advised as to the
applicable hold period imposed in respect of the Securities by securities legislation in the
jurisdiction in which the Subscriber’s resides and confirms that no
representation has been made respecting the applicable hold periods for the Securities and is aware of the risks and
other characteristics of the Securities and of the fact that the Subscriber may
not be able to resell the Securities except in accordance with the applicable
securities legislation and regulatory policy; |
| |
(w) |
Age of majority: the
Subscriber, if an individual, has attained the age of majority and is legally
competent to execute this Agreement and to take all actions required pursuant
hereto; |
| |
(x) |
Authorization and
formation of Subscriber: the Subscriber, if a corporation, partnership,
trust or other form of business entity, is authorized and otherwise duly
qualified to purchase and hold the Securities, and
such entity has not been formed for the specific purpose of acquiring Securities in this issue. If the Subscriber
is one of the aforementioned entities it hereby agrees that, upon request of
the Company, it will supply the Company with any additional written information
that may be requested by the Company. In addition, the entering into of this Agreement and the
transactions contemplated hereby will not result in the violation of any of the
terms of and provisions of any law applicable to, or the constating documents,
if a corporation, of, the Subscriber or of any agreement, written or oral, to
which the Subscriber may be a party or by which the Subscriber may be bound; |
-- $1.00t Post-split Private Placement Subscription Agreement --
-- Darlington Mines Ltd. -- |
- 9 -
| |
(y) |
Legal obligation:
this Agreement has been duly and validly authorized, executed and delivered by
and constitutes a legal, valid, binding and enforceable obligation of the
Subscriber; |
| |
(z) |
Legal and tax consequences:
the Subscriber acknowledges that an investment in the Securities of the Company may have tax
consequences to the Subscriber under applicable law, which the Subscriber is
solely responsible for determining, and the Subscriber also acknowledges and
agrees that the Subscriber is responsible for obtaining its own legal and tax
advice; |
| |
(aa) |
Compliance with applicable
laws: the Subscriber knows of no reason (and is sufficiently
knowledgeable to determine the same or has sought legal advice) why the
delivery of this Agreement, the acceptance of it by the Company and the
issuance of the Post-split Shares to the Subscriber will not comply with all
applicable laws of the Subscriber’s jurisdiction of residence or domicile, and
all other applicable laws, and the Subscriber has no reason to believe that the
Subscriber’s subscription hereby will cause the Company to become subject to or
required to comply with any disclosure, prospectus or reporting requirements or
to be subject to any civil or regulatory review or proceeding. In addition,
the Subscriber will comply with all applicable securities laws and will assist
the Company in all reasonable manner to comply with all applicable securities
laws; |
| |
(ab) |
Encumbrance or transfer of Securities:
while the Company is a non-reporting company in Canada, the Subscriber will not
sell, assign, gift, pledge or encumber in any manner whatsoever any of the Securities herein subscribed for in Canada without
the prior written consent of the Company and in accordance with applicable
securities legislation; |
| |
(ac) |
Regulation S: if
the Subscriber is not a resident of the United States, the Subscriber further represents and warrants that the
Subscriber was not specifically formed to acquire any of the Securities subscribed for in this Agreement in violation of the provisions of
Regulation S; |
| |
(ad) |
Finders’ fees: the
Subscriber has not retained,
employed or introduced any broker, finder or other person who would be entitled
to a brokerage commission or finder’s fee arising out of the transactions
contemplated hereby; |
| |
(ae) |
Additional Subscriber
acknowledgements: the Subscriber also acknowledges (on its own behalf
and, if applicable, on behalf of those for whom the Subscriber is contracting
hereunder) as set forth below: |
| |
(i) |
it has been
furnished with all information, financial and otherwise, concerning the
business, affairs and financial position of the Company necessary to make an
informed decision to purchase the Post-split Shares and the Subscriber agrees that such
information has not been furnished pursuant to any form of written material
which is, or may be construed as, an offering memorandum as that term is
defined in the securities legislation of any State of the United States, the
securities legislation in the jurisdictions in which the Company is
incorporated and conducts business and the securities legislation in the
jurisdiction in which the Subscriber is resident (collectively, the “Applicable Securities Legislation” herein)
as such legislation is from time to time amended, and the regulations and rules
prescribed thereto; |
-- $1.00t Post-split Private Placement Subscription Agreement --
-- Darlington Mines Ltd. -- |
- 10 -
| |
(ii) |
the issue of the Post-split
Shares will be made pursuant to exemptions from the registration and prospectus
requirements of the Applicable Securities Legislation and therefore: |
| |
(A) |
the Subscriber may be
restricted from using certain of the civil remedies available under such
legislation and certain protections, rights and remedies provided in such
legislation, including statutory rights of rescission or damages, may not be
available to the Subscriber; |
| |
(B) |
the Subscriber may not receive
information that might otherwise be required to be provided to the Subscriber
under such legislation; |
| |
(C) |
the Company may be relieved
from certain obligations that would otherwise apply under such legislation; |
| |
(D) |
no securities commission or
similar regulatory authority has reviewed or passed on the merits of the Securities; |
| |
(E) |
there is no government or
other insurance covering the Securities; and |
| |
(F) |
there are risks associated
with the purchase of the Securities; |
| |
(iii) |
no prospectus
has been filed by the Company with any regulatory authority in connection with
the issuance of the Securities and
the Company has already issued or may issue Post-split Shares or shares for
significantly lesser consideration per unit or share than is being paid by the
Subscriber for Post-split Shares hereunder; |
| |
(iv) |
this subscription forms part
of a larger Offering and is subject only to the Company’s Acceptance of this
subscription Agreement and the Subscription Price therefore; |
| |
(v) |
the sale and delivery of the Post-split
Shares to the Subscriber or to any subscriber on whose behalf the Subscriber is
contracting is conditional upon such sale being exempt from the requirement to
file a prospectus or to prepare and deliver an offering memorandum under any
applicable legislation relating to the sale of the Post-split Shares or upon
the issuance of such orders, consents or approvals as may be required to permit
such sale without the requirement of filing a prospectus or preparing and
delivering an offering memorandum; |
| |
(vi) |
the Company may be required
to provide applicable securities regulatory authorities with a list setting
forth the identities of the beneficial purchasers of the Post-split
Shares and
the Subscriber acknowledges and agrees that the Subscriber will provide, on
request, particulars as to the identity of such beneficial purchasers as may be
required by the Company in order to comply with the foregoing; and |
-- $1.00t Post-split Private Placement Subscription Agreement --
-- Darlington Mines Ltd. -- |
- 11 -
| |
(vii) |
the Subscriber (or others for
whom the Subscriber is contracting hereunder) has been advised to consult its
own legal advisors with respect to the merits and risks of an investment in the
Securities and with respect to applicable
resale restrictions and the Subscriber (or others for whom the Subscriber is
contracting hereunder) is solely responsible, and the Company is not in any way
responsible, for compliance with applicable resale restrictions; |
| |
(af) |
Additional Subscriber representations
and warranties under Applicable Securities Legislation: if the
Subscriber is not a resident of the United States, the Subscriber further
represents
and warrants to the Company and acknowledges and agrees that the Company will also
rely upon the following representations and warranties in determining whether
or not to accept this subscription under all Applicable Securities Legislation: |
| |
(i)
|
the Subscriber
is purchasing
the Post-split Shares as principal for its own account, not for the benefit of
any other person and not with a view to the resale or distribution of all or
any of the Post-split Shares and, by signing and returning the attached Attachment
“I” – “Subscriber’s Certificate”, certifies that it {please circle at least one
of the following categories and complete the missing information as appropriate}: |
| |
(A) |
is an “accredited investor” as
defined in National Instrument 45-106 –Prospectus and Registration
Exemptions (“NI 45-106”); or |
| |
(B) |
is resident in an “International Jurisdiction”
(being a jurisdiction outside of Canada and the United States) and: |
| |
(I) |
the Subscriber is
knowledgeable of, or has been independently advised as to, the Applicable
Securities Legislation of such International Jurisdiction which would apply to
this Agreement; |
| |
(II) |
the Subscriber is purchasing the Post-split
Shares pursuant to an
applicable exemption from any prospectus, registration or similar requirements
under the Applicable Securities Legislation of such International Jurisdiction,
or, if such is not applicable, the Subscriber is permitted to purchase the Post-split
Shares under the Applicable
Securities Legislation of the International Jurisdiction without the need to
rely on exemptions; and |
| |
(III) |
the Applicable Securities Legislation of the
International Jurisdiction do not require the Company to make any filings or
seek any approvals of any kind whatsoever from any regulatory authority of any
kind whatsoever in the International Jurisdiction; |
| |
(ii) |
the Subscriber has not relied upon the Company or its directors
and officers, or the Company’s Counsel or advisors, for investment, legal or
tax advice, including advice with respect to the hold period and resale
restrictions imposed upon the Securities by the securities legislation in the jurisdiction in
which the Subscriber resides, and has, if desired, in all cases sought the
advice of the Subscriber’s own personal investment advisor, legal counsel and
tax advisors, and the Subscriber is either experienced in or knowledgeable with
regard to the affairs of the Company or, either alone or with its professional
advisors, is capable by reason of knowledge and experience in financial and
business matters in general, and investments in particular, of evaluating the
merits and risks of an investment in the Securities, and it is able to bear the economic risk
of an investment in the Securities and can otherwise be reasonably assumed to have the
capacity to protect its own interest in connection with the investment; and |
-- $1.00t Post-split Private Placement Subscription Agreement --
-- Darlington Mines Ltd. -- |
- 12 -
| |
(iii) |
the Subscriber understands and acknowledges
that the Company is not currently a reporting issuer or
reporting company in every applicable jurisdiction and as a result the hold
period to which the Securities are subject may be
indefinite in certain jurisdictions in which the Securities are issued until the Company becomes a reporting issuer or reporting
company in such jurisdiction. The Subscriber further understands that the
certificates representing the Securities will
bear a legend describing the resale restrictions and the Subscriber agrees to
comply with such resale restrictions; and |
| |
(ag) |
Additional Subscriber covenants
and agreements: the Subscriber further covenants and agrees that
the Company will also rely upon the following covenants and agreements in
determining whether or not to accept this subscription under all Applicable
Securities Legislation: |
| |
(i) |
the Subscriber acknowledges
and consents to the collection and retention by the Company of certain
information, including personal information, regarding the Subscriber and the
Subscriber’s subscription, including the Subscriber’s name, address, telephone
number and e-mail address, the number of Securities purchased and any control persons of the
Subscriber. The Subscriber acknowledges and agrees that this information will
be retained on the share register of the Company which may be available for
inspection by the public. The Subscriber further consents and agrees to the
release of this information to the securities regulatory authorities as required
by law and regulatory policies; and |
| |
(ii) |
the Subscriber agrees
that this Agreement will in no way restrict the Company from obtaining further
funds through the sale of equity securities of the Company or otherwise. |
3.5 Company
Confidential Information. The Subscriber acknowledges that the
Company is presently not actively engaged in any business, however, and with
proposed acquisition and merger with The Pulse Beverage Corporation, proposes
to be engaged in the manufacture, sale and distribution of the “Pulse” brand of
nutraceutical beverages. The Subscriber recognizes the importance of
protecting the Company’s trade secrets, confidential information and other
proprietary information and related rights acquired through the Company’s
expenditure of time, effort and money. Therefore, in consideration of the
Company permitting the Subscriber to submit this subscription and have access
to Company information and/or Company confidential information otherwise coming
to the Subscriber, the Subscriber agrees to be bound by the following terms and
conditions:
-- $1.00t Post-split Private Placement Subscription Agreement --
-- Darlington Mines Ltd. -- |
- 13 -
| |
(a) |
Definitions: for all purposes of this Agreement, except
as otherwise expressly provided or unless the context otherwise requires, the
following words and phrases shall have the following meanings: |
| |
(i) |
“Confidential
Information” includes any of the following: |
| |
(A) |
any and all versions of the trade
names, trade-mark, business plans, products, software, all Developments (as
defined below) and all other matters owned or marketed by the Company; |
| |
(B) |
information regarding the Company’s
business operation, methods and practices, including marketing strategies,
product pricing, margins and hourly rates for staff and information regarding
the financial affairs of the Company; |
| |
(C) |
the names of the Company’s
clients and the names of the suppliers to the Company, and the nature of the
Company’s relationships with these clients and suppliers; and |
| |
(D) |
any other trade secret or
confidential or proprietary information in the possession or control of the Company; |
| |
however, Confidential
Information does not include information which is or becomes generally
available to the public without the Subscriber’s fault; and |
| |
(ii) |
“Developments”
include all the following related to the products or business of the Company: |
| |
(A) |
copyright works, software,
documentation, data, designs, scripts, photographs, music, reports, flowcharts,
trade-marks, specifications, source codes, product designs or formula and any
related works, including any enhancements, modifications or additions to the
products owned, marketed or used by the Company; and |
| |
(B) |
inventions, devices, discoveries,
concepts, ideas, algorithms, formulae, know-how, processes, techniques, systems
and improvements, whether patentable or not; |
| |
developed,
created, acquired, generated or reduced to practice by the Company or any
person by or for the Company, including the Subscriber; |
| |
(b) |
Maintaining
confidentiality: at
all times the Subscriber shall keep in strictest confidence and trust the
Confidential Information. The Subscriber shall take all necessary precautions
against unauthorized disclosure of the Confidential Information, and, except as
required by applicable law, judicial process or regulatory investigation, the
Subscriber shall not, directly or indirectly disclose, allow access to,
transmit or transfer the Confidential Information to a third party, nor shall
the Subscriber use, copy or reproduce the Confidential Information except as
may be reasonably required for the Subscriber with the permission of the
Company; |
-- $1.00t Post-split Private Placement Subscription Agreement --
-- Darlington Mines Ltd. -- |
- 14 -
| |
(c) |
Return of Confidential
Information: at
the request of the Company the Subscriber shall immediately return to the
Company all materials, including all copies in whatever form, containing the
Confidential Information which are in the Subscriber’s possession or under the
Subscriber’s control; and |
| |
(d) |
No rights to Confidential
Information: the
Subscriber acknowledges and agrees that the Subscriber shall not acquire any
right, title or interest in or to the Confidential Information. Should any
interest in the Confidential Information come into the possession of the
Subscriber by any means, other than specific written transfer by the Company,
the Subscriber hereby assigns and transfers, now and in the future, to the
Company, and agrees that the Company shall be the exclusive owner of, all of
the Subscriber’s right, title and interest to any such throughout the world,
including all trade secrets, patent rights, copyrights and all other
intellectual property rights therein. The Subscriber further agrees to
cooperate fully at all times with respect to signing further documents and
doing such acts and other things required by the Company to confirm such
transfer of ownership of rights. The Subscriber agrees that the obligations in
this section shall continue beyond the issue of any Securities hereunder,
beyond the ownership of any Securities acquired hereunder and beyond the
termination of the Subscriber’s employment, engagement or association with the
Company, for a period of five years from the date that the Subscriber delivers
this Agreement to the Company. |
3.6 Reliance
on Subscriber’s representations and warranties and indemnification.
The Subscriber understands that the Company will rely on the representations
and warranties of the Subscriber herein in determining whether a sale of the Post-split
Shares to the Subscriber is in compliance with federal and applicable state and
provincial securities laws. The Subscriber hereby agrees to indemnify the
Company and its affiliates and hold the Company and its affiliates harmless
from and against any and all liability, damage, cost or expense (including
reasonable attorney’s fees) incurred on account of or arising out of: (i) any
inaccuracy in the Subscriber’s acknowledgements, representations or warranties
set forth in this Agreement; (ii) the disposition of any of the Securities which the Subscriber will
receive, contrary to the Subscriber’s acknowledgements, representations or
warranties in this Agreement or otherwise; (iii) any suit or proceeding based
upon the claim that such acknowledgments, representations or warranties were
inaccurate or misleading or otherwise cause for obtaining damages or redress
from the Company or its affiliates; and (iv) the Subscriber’s failure to
fulfill any or all of the Subscriber’s obligations herein.
3.7 Change
in Subscriber’s representations and warranties. All of the
information set forth hereinabove with respect to the Subscriber and including,
without limitation, the acknowledgements, representations and warranties set
forth hereinabove, is correct and complete as of the date hereof and, if there
should be any material change in such information prior to the acceptance of
this subscription Agreement by the Company, the Subscriber will immediately
furnish the revised or corrected information to the Company.
3.8 The
Company’s representations and warranties. The Company hereby
represents and warrants as follows and hereby acknowledges and agrees that the
Subscriber will rely on the following representations and warranties in
effecting the subscription contemplated hereby:
| |
(a) |
Organization
and Qualification of the Company: the Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Nevada and has the requisite corporate power to own its properties and
to carry on its business as now being conducted. The Company is duly qualified
as a foreign corporation to do business and is in good standing in each
jurisdiction where the nature of the business conducted or property owned by it
makes such qualification necessary, other than those jurisdictions in which the
failure to so qualify would not have a material adverse effect on the business,
operations or condition (financial or otherwise) of the Company; |
-- $1.00t Post-split Private Placement Subscription Agreement --
-- Darlington Mines Ltd. -- |
- 15 -
| |
(b) |
Authority: the
Company has the requisite corporate power and authority to execute and deliver
this Agreement and to consummate the Offering and the other transactions
contemplated hereby. The execution and delivery of this Agreement by the
Company and the consummation by the Company of the transactions contemplated
hereby have been duly authorized by all necessary action on the party of the
Company, and no further consent or action is required; |
| |
(c) |
Enforceability: this
Agreement has been duly executed and delivered by the Company and constitutes
the valid and binding obligations of the Company enforceable against the
Company in accordance with its terms, subject as to enforceability to general
principles of equity and to bankruptcy, insolvency, moratorium, and other
similar laws affecting the enforcement of creditors’ rights generally; |
| |
(d) |
No
Conflicts: the execution, delivery and performance of this
Agreement by the Company and the consummation of the Offering by the Company do
not and will not conflict with or violate (i) any provision of the Articles of
Incorporation or bylaws of the Company, as amended, or (ii) any judgment,
order, decree, statute, law, ordinance, rule or regulation applicable to the
Company, except where such conflict or violation would not have a material
adverse effect on the business, operations or condition (financial or
otherwise) of the Company. No material consent, waiver, approval order or
authorization of, or registration, declaration or filing with, any court,
administrative agency or commission or other federal, state, county, local or
foreign governmental authority, instrumentality, agency or commission or any
third party, including a party to any material agreement with the Company, is
required in connection with the execution, delivery and performance of this
Agreement or the consummation of the Offering by the Company; |
| |
(e) |
The
Shares:
The Post-split Shares been duly authorized, and when issued and paid for in
accordance with this Agreement. The Post-split Shares have not been issued in
violation of, and are not subject to, any preemptive or subscription rights; |
| |
(f) |
SEC
Filings:
the Company has filed all reports required to be filed by it under the U.S. Act
and under the United States Securities Exchange Act of 1934, as amended
(the “Exchange Act”), including pursuant to Section 13(a) or 15(d)
thereof, for the 18 months preceding the date hereof (collectively, the “SEC
Reports”) on a timely basis or has received a valid extension of such time
of filing. At the time they were filed, the SEC Reports complied in all
material respects with the requirements of the U.S. Act and the Exchange Act
and the rules and regulations promulgated thereunder. At the time when they
were filed, none of the SEC Reports contained any untrue statement of a material
fact or omitted to state any material fact required to be stated therein or
necessary to make the statements made therein in light of the circumstances
under which they were made, not misleading. The financial statements of the
Company contained in the SEC Reports comply in all material respects with all
applicable accounting requirements of the United States Securities and Exchange
Commission (the “SEC”), were prepared in accordance with generally
accepted accounting principles, and fairly present in all material respects the
financial condition of the Company as of the dates thereof. The number and
type of all authorized, issued and outstanding shares of capital stock of the
Company is as set forth in the SEC Reports; and |
-- $1.00t Post-split Private Placement Subscription Agreement --
-- Darlington Mines Ltd. -- |
- 16 -
| |
(g) |
Absence
of Certain Changes: Since the date of the last audited
financial statement contained in the SEC Reports, there has been no material
adverse change and no material adverse development in the business, properties,
operations, condition (financial or otherwise), or results of operations of the
Company, except as disclosed in the SEC Reports. |
Article 4
Omitted
Article 5
RESTRICTED SECURITIES AND REGISTRATION
5.1 No
initial registration. The
Subscriber acknowledges and understands that neither the sale of the Post-split
Shares which the Subscriber is acquiring
nor any of the Securities themselves have
been registered under any Applicable Securities Legislation and, furthermore,
that the
Securities must be
held indefinitely unless subsequently registered under Applicable Securities Legislation
or an exemption from such registration is available.
5.2 Legending
of the Securities. The Subscriber
also acknowledges and understands that the certificates representing the
Securities will be
stamped with the following legend (or substantially equivalent language)
restricting transfer in the following manner:
“These securities have not been
registered under the United States Securities Act of 1933, as amended,
or the laws of any state, and are being issued pursuant to an exemption from
registration pertaining to such securities and pursuant to a representation by
the security holder named hereon that said securities have been acquired for
purposes of investment and not for purposes of distribution. These securities
may not be offered, sold, transferred, pledged or hypothecated in the absence
of registration, or the availability of an exemption from such registration. The
stock transfer agent has been ordered to effectuate transfers only in
accordance with the above instructions.”
(or)
“These securities have not been
registered under the United States Securities Act of 1933, as amended
(the “Act”), or the laws of any state, and are being issued in reliance upon Regulation
S promulgated under the Act. These securities may not be offered, sold,
transferred, pledged or hypothecated in the absence of registration, the
availability of an exemption from such registration or compliance with Regulation
S. The stock transfer agent has been ordered to effectuate transfers only in
accordance with the above instructions.
The
Subscriber hereby consents to the Company making a notation on its records or
giving instructions to any transfer agent of the Securities in order to implement the
restrictions on transfer set forth and described hereinabove.
5.3 Disposition
under Rule 144. The Subscriber
also acknowledges and understands that:
| |
(a) |
the Securities are restricted securities within the meaning of Rule 144
promulgated under the U.S. Act; |
-- $1.00t Post-split Private Placement Subscription Agreement --
-- Darlington Mines Ltd. -- |
- 17 -
| |
(b) |
the
exemption from registration under Rule 144 will not be available in any event
for at least one year from the date of purchase and payment of the Securities by the
Subscriber, and even then will not be available unless (i) adequate information
concerning the Company is then available to the public and (ii) other terms and
conditions of Rule 144 are complied with; and |
| |
(c) |
any
sale of the
Securities may be made
by the Subscriber only in limited amounts in accordance with such terms and
conditions. |
In this regard the Subscriber
further acknowledges and understands that, without in anyway limiting the
acknowledgements and understandings as set forth hereinabove, the Subscriber
agrees that the Subscriber shall in no event make any disposition of all or any
portion of the
Securities which the
Subscriber is acquiring hereunder unless and until:
| |
(a) |
there is then in effect a “Registration
Statement” under the U.S. Act covering such proposed disposition and such
disposition is made in accordance with said Registration Statement; or |
| |
(b) |
(i) the Subscriber shall have notified the
Company of the proposed disposition and shall have furnished the Company with a
detailed statement of the circumstances surrounding the proposed disposition,
(ii) the Subscriber shall have furnished the Company with an opinion of the
Subscriber’s own counsel to the effect that such disposition will not require
registration of any such
Securities under the U.S. Act and (iii) such opinion of the
Subscriber’s counsel shall have been concurred in by counsel for the Company
and the Company shall have advised the Subscriber of such concurrence. |
Article
6
GENERAL PROVISIONS
6.1 Address
for delivery. Each notice, demand or other communication required or
permitted to be given under this Agreement shall be in writing and shall be sent
by delivery (electronic or otherwise) or prepaid registered mail deposited in a
post office addressed to the Subscriber or the Company at the address specified
in this Agreement. The date of receipt of such notice, demand or other
communication shall be the date of delivery thereof if delivered, or, if given
by registered mail as aforesaid, shall be deemed conclusively to be the fifth calendar
day after the same shall have been so mailed, except in the case of
interruption of postal services for any reason whatsoever, in which case the
date of receipt shall be the date on which the notice, demand or other
communication is actually received by the addressee. Either party may at any
time and from time to time notify the other party in writing of a change of
address and the new address to which notice shall be given to it thereafter
until further change.
6.2 Severability
and construction. Each Article, section, sub-section, paragraph,
sub-paragraph, term and provision of this Agreement, and any portion thereof,
shall be considered severable, and if, for any reason, any portion of this
Agreement is determined to be invalid, contrary to or in conflict with any
applicable present or future law, rule or regulation, that ruling shall not
impair the operation of, or have any other effect upon, such other portions of
this Agreement as may remain otherwise intelligible (all of which shall remain
binding on the parties and continue to be given full force and agreement as of
the date upon which the ruling becomes final).
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6.3 Gender
and number. This
Agreement is to be read with all changes in gender or number as required by the
context.
6.4 Governing
law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Nevada, U.S.A., and the federal laws of the United States applicable therein. Any dispute regarding matters as between the Subscriber
and the Company, whether as a subscriber or shareholder and whether arising
under this Agreement or pursuant to shareholder rights pursuant to the
constating documents of the Company or applicable law, shall be adjudicated in
the Courts of the State of Nevada, U.S.A., unless the Company shall permit
otherwise.
6.5 Representation
and costs. It is hereby acknowledged by each of the parties hereto
that the Company’s Counsel acts solely for the Company, and, correspondingly,
that the Subscriber has been required by each of the Company’s Counsel and the
Company to obtain independent legal advice with respect to the Subscriber’s
review and execution of this Agreement. In addition, it is hereby further
acknowledged and agreed by the parties hereto that the Company’s Counsel, and
certain or all of its principal owners or associates, from time to time, may
have both an economic or shareholding interest in and to the Company and/or a
fiduciary duty to the same arising from either a directorship, officership or
similar relationship arising out of the request of the Company for certain of
such persons to act in a similar capacity while acting for the Company as
counsel. Correspondingly, and even where, as a result of this Agreement, the
consent of each party hereto to the role and capacity of the Company’s Counsel
and its principal owners and associates, as the case may be, is deemed to have
been received, where any conflict or perceived conflict may arise, or be seen
to arise, as a result of any such capacity or representation, each party hereto
acknowledges and agrees to, once more, obtain independent legal advice in
respect of any such conflict or perceived conflict and, consequent thereon, the
Company’s Counsel, together with any such principal owners or associates, as
the case may be, shall be at liberty at any time to resign any such position if
it or any party hereto is in any way affected or uncomfortable with any such
capacity or representation. The Company will bear and pay its and the
Subscriber’s costs, legal and otherwise, in connection with their respective
preparation, review and execution of this Agreement and the preparation,
review, filing, and maintenance of effectiveness of the Registrations Statement
and, in particular, that the costs involved in the preparation of this
Agreement, and all documentation necessarily incidental thereto, by the Company’s
Counsel, shall be at the cost of the Company.
6.6 Survival
of representations and warranties. The covenants, representations and
warranties contained herein shall survive the closing of the transactions
contemplated hereby.
6.7 Counterparts.
This Agreement may be signed by the parties hereto in as many counterparts as
may be necessary, each of which so signed shall be deemed to be an original,
and such counterparts together shall constitute one and the same instrument and
notwithstanding the date of execution will be deemed to bear the execution date
as set forth in this Agreement. This Agreement may also be executed and
exchanged by facsimile and such facsimile copies shall be valid and enforceable
agreements.
6.8 Entire
Agreement and amendments. This Agreement constitutes the only
agreement between the parties with respect to the subject matter hereof and
shall supersede any and all prior negotiations and understandings. There are
no collateral agreements or understandings hereto and this Agreement, and the
documents contemplated herein, constitutes the totality of the parties’
agreement. This Agreement may be amended or modified in any respect by written
instrument only.
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6.9 Corrections.
The Subscriber hereby authorizes the Company to correct any minor errors
in, or complete any minor information missing from, any of this Agreement and
each of Attachment “I” – “Subscriber’s Certificate” to this Agreement,
which may be required to be completed and executed by the Subscriber and
delivered to the Company in accordance with the terms and conditions of this
Agreement.
6.10 Successors
and assigns. The terms and provisions of this Agreement shall
be binding upon and enure to the benefit of the Subscriber, the Company and
their respective successors and lawfully permitted assigns; provided that,
except as herein provided, this Agreement shall not be assignable by any party
without the written consent of the other. Notwithstanding the foregoing
proviso, the benefit and obligations of this Agreement, insofar as they extend
to or affect the Subscriber, shall pass with any sale, assignment or transfer
of any of the Post-split Shares, the Shares, the Warrants or the Warrant Shares
in accordance with the terms of this Agreement.
IN WITNESS
WHEREOF the parties
hereto have hereunto set their respective hands and seals in the presence of
their duly authorized signatories effective as at the dates as set forth in the
Signature Page/Subscriber Statement at the beginning of this Agreement.
End of $1.00 Post-split Private Placement Subscription
Agreement
__________
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-- Darlington Mines Ltd. -- |
