OFFSHORE SECURITIES SUBSCRIPTION AGREEMENT
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THE SECURITIES OFFERED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, AND THE RULES AND
REGULATIONS PROMULGATED THEREUNDER (THE "1933 ACT"), AND MAY NOT BE OFFERED
OR SOLD WITHIN THE UNITED STATES (AS DEFINED IN REGULATION S OF THE 1933 ACT)
OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS (AS DEFINED IN
REGULATION S OF THE 1933 ACT) EXCEPT PURSUANT TO REGISTRATION UNDER OR AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT.
INVESTMENT IN THESE SECURITIES INVOLVES A HIGH DEGREE OF RISK. IN MAKING AN
INVESTMENT DECISION, INVESTORS MUST RELY ON THEIR OWN EXAMINATION OF THE
COMPANY AND THE TERMS OF THE OFFERING, INCLUDING THE MERITS AND THE RISKS
INVOLVED. THESE SECURITIES HAVE NOT BEEN RECOMMENDED BY ANY FEDERAL OR STATE
SECURITIES COMMISSION OR REGULATORY AUTHORITY. FURTHERMORE, THE FOREGOING
AUTHORITIES HAVE NOT CONFIRMED OR DETERMINED THE ACCURACY OR ADEQUACY OF THIS
DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THIS OFFSHORE SECURITIES SUBSCRIPTION AGREEMENT dated as of December 26,
1996 (the "Agreement"), is executed in reliance upon the exemption from
registration afforded by Regulation S ("Regulation S") as promulgated by the
Securities and Exchange Commission ("SEC"), under the Securities Act of 1933,
as amended. Capitalized terms used herein and not defined shall have the
meanings given to them in Regulation S.
United Kina Brewing Group Limited ("KINA"), a Bermuda corporation, and a
holding company with interests in seven joint venture brewing companies, and
Antares Resources Corporation, a New York corporation ("ARC"), have executed
a Agreement and Plan of Reorganization as of December 26, 1996, pursuant to
which all of the common stock of KINA shall be acquired by ARC in exchange
for common stock of ARC (the "Acquisition") subject to fulfillment of certain
conditions. All references to the Seller or the Company in this Agreement
refer to the combined entity of KINA and ARC as if the Acquisition had taken
place. Simultaneous with the closing of the Acquisition, ARC shall undertake
a reverse split of the ARC issued and outstanding common stock, whereby 1
share of common stock will be issued in exchange for every 10 shares of
common stock then issued and outstanding.
KINA is engaged in the business of manufacturing, distributing and
marketing of beer in the People's Republic of China.
This Agreement has been executed by the undersigned "Buyer" in
connection with the private placement of 10% Convertible Debentures due
December 31, 1998. Buyer hereby represents and warrants to, and agrees with
Seller:
1. Agreement To Subscribe; Purchase Price.
(a) Subscription. The undersigned Buyer hereby subscribes for and
agrees to purchase the Seller's 10% Convertible Debentures due December 31,
1998 substantially in the form of the Debentures attached as Exhibit A hereto
and incorporated herein by reference, and having an aggregate original
principal amount of up to U.S. $2,000,000 (singularly, a "Debenture," and
plurally, the "Debentures"), at an aggregate purchase price as set forth in
subsection (b) herein.
(b) Payment. The Purchase Price for the Buyer's portion of the
Debentures shall be one million United States Dollars (U.S. $1,000,000) (the
"Purchase Price"), which shall be payable at the Closing, as defined below,
pursuant to paragraph (C) herein by delivering immediately available funds in
United States Dollars by wire transfer to the designated attorney trust
account as Escrow Agent ("Escrow Agent") for closing by delivery of
securities versus payment.
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(c) Closing. (i) The closing of the purchase and sale of the
Debentures pursuant to paragraph (a) hereof shall take place subject to the
satisfaction of the conditions set forth in Sections 7 and 8 hereof, on or
before December 26, 1996 (the "Closing Date") after the Company has delivered
to the offices of the Escrow Agent $1,000,000.00 of Debentures in
denominations of not less than $50,000 and registered in the names provided
by the Buyer.
(ii) The Company and the Buyer agree that they shall instruct the
Escrow Agent as follows:
A. On the Closing Date, for each Debenture subscribed for and delivered
to the Escrow Agent pursuant to the paragraph (b) above, the Escrow Agent
shall has wired payment of the Purchase Price for the Debentures (less any
fees Company has authorized Escrow Agent to deduct) in immediately available
funds to the Company's account as provided in the escrow instructions to the
Escrow Agent and release the Debentures described in paragraph (a) above to
the Buyer.
B. The Escrow Agent will make delivery of the number of Debentures set
forth in clause (a) above in accordance with the instructions of the Buyer
subject to customary settlement procedures upon confirmation of the wiring of
funds to the Company as described in clause (b)(i) above, except that all
such Debentures shall be delivered to a location outside the United States
and none of the Debentures shall be delivered to a U.S. Person (as defined
in Regulation S).
2. Buyer Representations and Covenants; Access to Information.
Offshore Transaction. In connection with the purchase and sale of the
Debentures, Buyer represents and warrants to, and covenants and agrees with
Seller as follows:
(i) Buyer is not a natural person and is not organized under the laws
of any jurisdiction within the United States, was not formed by a U.S.
Person (as defined in Section 902(o) of Regulation S) for the purpose of
investing in Regulation S securities and is not otherwise a U.S. Person.
Buyer is not, and on the Closing Date will not be, an affiliate of Seller.
To enable the Company to avoid withholding interest paid, the Buyer certifies
under penalty of perjury that it is neither a citizen nor a resident of the
United States and that its address set forth in the Escrow Agreement is
correct;
(ii) At the time the buy order was originated, Buyer was outside the
United States and is outside of the United States as of the date of the
execution and delivery of this Agreement and will be outside the United
States on the Closing Date;
(iii) No offer to purchase the Debentures or the common stock of Seller
issuable upon conversion of the Debentures (collectively, the "Securities"),
was made while Buyer was present in the United States;
(iv) Buyer is purchasing the Securities for its own account and not (i)
with a view to or for sale in connection with, any distribution thereof or
(ii) for the account or on behalf of any U.S. Person, and Buyer is qualified
to purchase the Securities under the laws of its jurisdiction of residence,
and the offer and sale of the Securities will not violate the securities or
other laws of such jurisdiction;
(v) All offers and sales of any of the Securities by Buyer prior to the
end of the Restricted Period (as hereinafter defined) shall be made in
compliance with any applicable securities laws of any applicable jurisdiction
and in accordance with Rule 903 and 904, as applicable, of Regulation S or
pursuant to registration of securities under the 1933 Act or pursuant to an
exemption from registration. In any case, none of the Securities have been
and will be offered or sold by Buyer to, or for the account or benefit of, a
U.S. Person or within the United States until after the end of the forty (40)
day period commencing on the date of closing of the offering of the
Securities (the "Restricted Period"), as certified by Buyer to Seller, and
thereafter only pursuant to a Registration Statement or an applicable
exemption therefrom;
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(vi) The transactions contemplated by this Agreement (a) have not been
and will not be pre-arranged by Buyer with a purchaser located in the United
States or a purchaser which is a U.S. Person, and (b) are not and will not be
part of a plan or scheme by Buyer, to evade the registration provisions of
the 1933 Act;
(vii) Buyer understands that the Securities are not registered under
the 1933 Act and are being offered and sold to it in reliance on specific
exclusions from the registration requirements of Federal and State securities
laws, and that Seller is relying upon the truth and accuracy of the
representations, warranties, agreements, acknowledgments and understandings
of Buyer set forth herein in order to determine the applicability of such
exclusions and the suitability of Buyer and any purchaser from Buyer to
acquire the Securities;
(viii) The Buyer has agreed, and to the best knowledge of the Buyer,
each distributor, if any, participating in the offering of the Securities,
has agreed that all offers and sales of the Securities prior to the
expiration of a period commencing on the closing of the offering of the
Debentures and ending forty days thereafter shall not be made to U.S. persons
or for the account or benefit of U.S. persons and shall otherwise be made in
compliance with the provisions of Regulation S. Buyer is not a distributor
or dealer. Buyer and its controlling persons agree to indemnify the Company
for any misrepresentation of Buyer contained herein;
(ix) Buyer has not conducted and shall not conduct any "directed
selling efforts" as that term is defined in Rule 902(b) of Regulation S; nor
has Buyer conducted any general solicitation relating to the offer and sale
of any of the Securities in the United States or elsewhere;
(x) This Agreement has been duly authorized, validly executed and
delivered on behalf of Buyer and is a valid and binding agreement in
accordance with its terms, subject to general principals of equity and to
bankruptcy or other laws affecting the enforcement of creditors' rights
generally;
(xi) The execution and delivery of this Agreement and the consummation
of the purchase of the Securities, and the transactions contemplated by this
Agreement do not and will not conflict with or result in a breach by Buyer of
any of the terms or provisions of, or constitute a default under, the
articles of incorporation or by-laws (or similar constitutive documents) of
Buyer or any indenture, mortgage, deed of trust, or other material agreement
or instrument to which Buyer is a party or by which it or any of its
properties or assets are bound, or any existing applicable law, rule or
regulation of the United States or any State thereof or any applicable
decree, judgment or order of any Federal or State court, Federal or State
regulatory body, administrative agency or other United States governmental
body having jurisdiction over Buyer or any of its properties or assets;
(xii) All invitations, offers and sales of or in respect of, any of the
Securities, by Buyer and any distribution by Buyer of any documents relating
to any offer by it of any of the Securities will be in compliance with
applicable laws and regulations and will be made in such a manner that no
prospectus need be filed and no other filing need be made by Seller with any
regulatory authority or stock exchange in any country or any political sub-
division of any country;
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(xiii) Buyer will not make any offer or sale of the Securities by any
means which would not comply with the laws and regulations of the territory
in which such offer or sale takes place or to which such offer or sale is
subject or which would in connection with any such offer or sale impose upon
Seller any obligation to satisfy any public filing or registration
requirement or provide or publish any information of any kind whatsoever or
otherwise undertake or become obligated to do any act; and
(xiv) Neither the Buyer nor any of its affiliates has entered, has the
intention of entering, or will during the Restricted Period enter into any
put option, short position or other similar instrument or position with
respect to any of the Securities or securities of the same class as the
Securities.
(xv) the Buyer (or others for whom it is contracting hereunder) has
been advised to consult its own legal and tax advisors with respect to
applicable resale restrictions and applicable tax considerations and it (or
others for whom it is contracting hereunder) is solely responsible (and the
Seller is not in any way responsible) for compliance with applicable resale
restrictions and applicable tax legislation.
(xvi) No Government Recommendation or Approval. Buyer understands that
no Federal or State or foreign government agency has passed on or made any
recommendation or endorsement of the Securities.
(xvii) Current Public Information. Buyer has received and carefully
reviewed the accompanying Disclosure Documents, as defined herein. Buyer, in
electing to subscribe for the Securities hereunder, has relied upon an
independent investigation made by it and its representatives and advisors, if
any, and has, prior to the date hereof, been given access to and the
opportunity to examine all books and records of the Company, and all material
contracts and documents of the Company. Buyer has been given no oral or
written representations or assurances from the Company or any representation
of the Company other than as set forth in this Agreement or in a document
executed by a duly authorized representative of the Company making reference
to this Agreement. The Buyer has such experience in business and financial
matters that it is capable of evaluating the risk of its investment and
determining the suitability of its investment. Buyer understands that all
financial information set forth in the Disclosure Documents is subject to the
qualifications set forth therein.
(xviii) No Legal Advice from Company. Buyer acknowledges that Buyer
has had the opportunity to review this Agreement and the transactions
contemplated herein with Buyer's own legal counsel. Buyer is relying solely
on such counsel and not on any statements or representations of the Company
for legal advice with respect to this investment, except for the
representations, warranties and covenants set forth herein.
(xix) No Public Solicitation. Buyer knows of no public solicitation or
advertisement of an offer in connection with the proposed issuance and sale
of the Securities.
(xx) Buyer's Sophistication. Buyer acknowledges that the purchase of
the Securities involves a high degree of risk, including the total loss of
Buyer's investment. Buyer has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of
purchasing the Securities.
(xxi) Tax Status. Buyer is not a "10-percent Shareholder" (as defined
in Section 871(h)(3)(B) of the U.S. Internal Revenue Code) of Seller.
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3. Seller Representations and Covenants.
(a) Reporting Company Status. Seller is a "Reporting Issuer" as defined by
Rule 902 of Regulation S. Seller has registered its Common Stock, $0.001 par
value per share (the "Common Stock"), pursuant to Section 12 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the
Common Stock is listed and trades on NASDAQ Small Cap Market. Seller has
filed all material required to be filed pursuant to all reporting obligations
under either Section 13(a) or 15(d) of the Exchange Act for a period of at
least twelve (12) months immediately preceding the offer or sale of the
Securities (or for such shorter period that Seller has been required to file
such material).
(b) Current Public Information. The Company has provided the Buyer with
true and correct copies of the Information Statement of United Kina Brewing
Group Limited, draft of the audited pro-forma financial statements of the
predecessors of the joint ventures in which KINA now holds interest, for the
fiscal years ending December 31, 1993, 1994 and 1995, report on Form 10-KSB
for fiscal year ending September 30, 1995 of ARC, the most recent report on
Form 10-QSB of ARC for the period ending June 30, 1996 and Proxy Statement of
ARC, and such other publicly available documents as requested by Buyer
(collectively, the "Disclosure Documents").
(c) Offshore Transaction. Seller has not offered any of the Securities to
any person in the United States, any identifiable groups of U.S. citizens
abroad, or to any U.S. Person, as such terms are used in Regulation S.
(i) Based upon the truth and accuracy of representations and warranties
of Buyer, at the time the buy order was originated, Seller and/or its agents
reasonably believe the Buyer was outside of the United States and was not a
U.S. person.
(ii) Based upon the truth and accuracy of representations and
warranties of Buyer, Seller and/or its agents reasonably believe that the
transaction has not been pre-arranged with a buyer in the United States.
(iii) No offer to buy or sell the Securities was or will be made by
Seller to any person in the United States.
(iv) The sale of the Securities by Seller pursuant to this Agreement
will (based in part upon the representations and warranties of the Buyer
contained herein) be made in accordance with the provisions and requirements
of Regulation S provided that the representations and warranties of Buyer in
Section 2(a) hereof are true and correct.
(v) The transactions contemplated by this Agreement (a) have not been
and will not be pre-arranged by Seller with a purchaser located in the United
States or a purchaser which is a U.S. Person, and (b) are not and will not be
part of a plan or scheme by Seller to evade the registration provisions of
the 1933 Act.
(d) No Directed Selling Efforts. In regard to this transaction, to the best
knowledge of the Seller, Seller has not conducted any "directed selling
efforts" as that term is defined in Rule 902 of Regulation S nor has Seller
conducted any general solicitation relating to the offer and sale of any of
the Securities in the United States or elsewhere.
(e) Concerning the Securities. The issuance, sale and delivery of the
Debentures have been duly authorized by all required corporate action on the
part of Seller, and when issued, sold and delivered in accordance with the
terms hereof and thereof for the consideration expressed herein and therein,
will be duly and validly issued, fully paid and non-assessable. The Common
Stock issuable upon conversion of the Debenture has been duly and validly
reserved for issuance and, upon issuance in accordance with the terms of the
Debentures, shall be duly and validly issued, fully paid, and non-assessable
and will not subject the holders thereof, if such persons are non-U.S.
persons, to personal liability by reason of being such holders. There are no
pre-emptive rights of any shareholder of Seller.
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(f) Subscription Agreement. This Agreement has been duly authorized,
validly executed and delivered on behalf of Seller and is a valid and binding
agreement in accordance with its terms, subject to general principals of
equity and to bankruptcy or other laws affecting the enforcement of
creditors' rights generally.
(g) Non-contravention. The execution and delivery of this Agreement and the
consummation of the issuance of the Securities and the transactions
contemplated by this Agreement do not and will not conflict with or result in
a breach by Seller of any of the terms or provisions of, or constitute a
default under, the articles of incorporation or by-laws of Seller, or any
indenture, mortgage, deed of trust, or other material agreement or instrument
to which Seller is a party or by which it or any of its properties or assets
are bound, or any existing applicable law, rule or regulation of the United
States or any State thereof or any applicable decree, judgment or order of
any Federal or State court, Federal or State regulatory body, administrative
agency or other United States governmental body having jurisdiction over
Seller or any of its properties or assets.
(h) Approvals. Seller is not aware of any authorization, approval or
consent of any governmental body which is legally required for the issuance
and sale of the Debentures and the Common Stock issuable upon conversion
thereof to persons who are non-U.S. Persons, as contemplated by this
Agreement.
4. Exemption; Reliance on Representations. Buyer understands that the offer
and sale of the Securities are not being registered under the 1933 Act.
Seller and Buyer are relying on the rules governing offers and sales made
outside the United States pursuant to Regulation S.
5. Transfer Agent Instructions.
(a) Debentures. The certificates representing the Securities and the Shares
issued during the Restricted Period, shall bear the following legend (the
"Legend"):
"The securities represented hereby have been issued pursuant to Regulation S
promulgated under the Securities Act of 1933, as amended (the "1933 Act"),
and have not been registered under the 1933 Act. Such securities may not be
transferred, offered or sold prior to the end of the forty (40) day period
(the "Restricted Period") commencing on_____________, 1996 unless such
transfer, offer or sale is made in an "offshore transaction" and not to or
for the account of or benefit of a "U.S. Person" (as such terms are defined
in Regulation S) and is otherwise in accordance with the requirements of
Regulation S. Following expiration of the Restricted Period, the securities
represented hereby may not be offered, sold or otherwise transferred in the
United States or to a U.S. Person unless the securities are registered under
the 1933 Act and applicable state securities laws, or such offers, sales and
transfers are made pursuant to an available exemption from the registration
requirements of those laws."
Upon the conversion of the Debentures, the holder thereof shall submit such
Debenture with a notice of conversion to the Seller and the Seller shall
instruct Seller's transfer agent to issue one or more Certificates
representing that number of shares of Common Stock into which the Debenture
or Debentures are convertible in accordance with the provisions regarding
conversion set forth in the Form of Debenture attached hereto as Exhibit A.
The Seller or its designees shall act as Debenture Registrar and shall
maintain an appropriate ledger containing the necessary information with
respect to each Debenture.
(b) Common Stock to be Issued Without Restrictive Legend. Upon the
conversion of any Debenture by a person who is a non-U.S. Person, Seller
shall instruct Seller's transfer agent to issue Stock Certificates without
restrictive legend in the name of Buyer (or its nominee (being a non-U.S.
Person) or such non-U.S. Persons as may be designated by Buyer prior to the
closing) and in such denominations to be specified at conversion representing
the number of shares of Common Stock issuable upon such conversion, as
applicable, if the Buyer holding such Securities or any other person in whose
name such certificates have been or are to be issued shall have delivered a
certificate (a "Removed Certificate") to the Company to the following effect.
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"The undersigned acknowledges that the securities to which this certificate
relates have not been registered under Securities Act of 1933, as amended
(the "1933 Act") and that offers, sales or other transfer of such securities
must be made in compliance with Regulation S promulgated under the 1933 Act,
pursuant to an effective registration statement under the 1933 Act or
pursuant to an available exemption from registration, and the undersigned
certifies that the undersigned has not made, nor will the undersigned make or
cause to be made, any offer, sale or other transfer of such securities, in
violation of the 1933 Act, other applicable securities laws or the rules and
regulations of the Securities and Exchange Commission."
Seller warrants that no instructions other than these instructions and
instructions to impose a "stop transfer" instruction with respect to the
certificates until the end of the Restricted Period have been given or will
be given to the transfer agent and that the Common Stock shall otherwise be
freely transferable on the books and records of Seller. Nothing in this
Section 5, however, shall affect in any way Buyer's or such nominee=s
obligations and agreements to comply with all applicable securities laws upon
resale of the Securities. Notwithstanding the provisions of this section
5(c), if with respect to the Company's receipt of a Removal Certificate from
any person, prior to any removal of the Legend, there shall have been after
the date hereof any amendment to the 1933 Act or Regulation S or any no
action letter, interpretative release or other advice from the Securities and
Exchange Commission after the date hereof which disallows the removal of the
Legend under the circumstances in which the request that it be removed is
being made, then the Company shall have no obligation to remove or to
instruct its transfer agent to remove the Legend, unless the Company shall
have received from the person requesting such removal a written letter of
counsel to such person reasonably acceptable to the Company and its counsel
confirming that the Legend may be so removed or share certificates may be so
issued without the Legend without violation of the 1933 Act. If the person
requesting a removal of the Legend is unable to supply the legal opinion
referred to above then the Company shall, upon demand of such person, be
obligated to register the Common Stock for resale pursuant to section 6
herein.
6. Registration.
(a) Conditions to Registration Requirement. The Company's obligation
hereunder to register the shares of common stock issuable upon conversion of
the Debentures ("Underlying Shares") shall arise in the event that Company
receives a written opinion of counsel for the Buyer (which counsel shall be
of a law firm experienced in United States securities matters) indicating
that there has been an amendment or change to the Securities Act or
Regulation S after the date hereof, or the promulgation by the Commission of
an interpretative release or other statement after the date hereof, which
prohibits or restricts Buyer from reselling Underlying Shares without
registration under the Securities Act (a "Registration Trigger Event").
Notwithstanding the foregoing, it will not be deemed a "Registration Trigger
Event" to the extent that Buyer desires to engage in a distribution of the
Underlying Shares which otherwise requires registration under the Securities
Act or in activity which otherwise deems Buyer to be a statutory underwriter
under Section 5 of the Securities Act. In the event that a Registration
Trigger Event has occurred, then Buyer shall be entitled to require the
Company to register all of Buyer's Underlying Shares in accordance with this
Section 6.
(b) Request for Registration. Upon the occurrence of a Registration Trigger
Event, if the Company shall receive from a Buyer a written request that the
Company effect any registration with respect to any Underlying Shares, the
Company shall use its commercially reasonable efforts to effect, at its
expense, such registration (including, without limitation, the execution of
an undertaking to file post-effective amendments, appropriate qualification
under applicable blue sky or other state securities laws and appropriate
compliance with applicable regulations issued under the Securities Act) as
may be so requested and as would permit or facilitate the sale and
distribution of all or such portion of such Underlying Shares as are
specified in such request in the states specified in such request.
Notwithstanding the foregoing, the Company shall not be obligated hereunder
to effect such registration unless the proposed public offering price of the
securities to be included in such registration (i) shall be at least $500,000
(before deducting underwriting discounts and commissions) and (ii) such
notice requesting that the Company effect a registration pursuant to this
Section 6 shall have been received by the Company after the Company has filed
its Annual Report on Form 10-K for the fiscal year ending September 30, 1996
containing three-year audited financial statements. The Company and the Buyer
shall cooperate in good faith in connection with the furnishing of
information required for such registration and the taking of such other
actions as may be legally or commercially necessary in order to effect such
registration. The Company shall file a registration statement within 45 days
of Buyer's demand therefor and shall use its commercially reasonable efforts
to cause such registration statement to become effective as soon as
practicable thereafter. Such best efforts shall include, but not be limited
to, promptly responding to all comments received from the staff of the
Securities and Exchange Commission, providing Buyer's counsel with a
contemporaneous copy of all written communications from and to the staff of
the Securities and Exchange Commission with respect to such registration
statement and promptly preparing and filing amendments to such registration
statement which are responsive to the comments received from the staff of the
Securities and Exchange Commission. Once declared effective by the
Securities and Exchange Commission, the Company shall cause such registration
statement to remain effective until the earlier of (i) the sale by the Buyer
of all Underlying Shares registered or (ii) 120 days after the effective date
of such registration statement. The foregoing shall not in any way limit
Buyer's rights in connection with the Common Stock pursuant to Regulation S.
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7. Delivery Instructions. The Debentures being purchased hereunder shall be
delivered to the Buyer at such time and place as shall be mutually agreed by
Seller and Buyer.
8. Conditions To Seller's Obligation To Sell. Seller's obligation to sell
the Debentures is conditioned upon:
(a) The receipt and acceptance by Buyer of this Agreement as evidenced by
execution of this Agreement by Buyer.
(b) Delivery into the closing depository of good funds by Buyer as payment
in full of the purchase price of the Debentures.
9. Conditions To Buyer's Obligation To Purchase. Buyer's obligation to
purchase the Debentures is conditioned upon:
(a) The receipt and acceptance by Seller of this Agreement as evidenced by
execution of this Agreement by the duly authorized officer of Seller.
(b) Delivery of the Debentures as described herein.
10. Offering Materials. All offering materials and documents used in
connection with offers and sales of the Securities prior to the expiration of
the Restricted Period referred to in Section 2(v) hereof shall include
statements to the effect that the Securities have not been registered under
the 1933 Act or applicable state securities laws, and that neither Buyer, nor
any direct or indirect purchaser of the Securities from Buyer, may directly
or indirectly offer or sell the Securities in the United States or to U.S.
Persons (other than distributors) unless that Securities are registered under
the 1933 Act any applicable state securities laws, or any exemption from the
registration requirements of the 1933 Act or such state securities laws is
available. Such statements shall appear (1) on the cover of any prospectus
or offering circular used in connection with the offer or sale of the
Securities, (2) in the underwriting section of any prospectus or offering
circular used in connection with the offer or sale of the Securities, and (3)
in any advertisement made or issued by Seller, Buyer, any other distributor,
any of their respective affiliates, or any person acting on behalf of any of
the foregoing.
11. No Shareholder Approval. Seller hereby agrees that from the Closing
Date until the issuance of Common Stock upon the conversion of the
Debentures, Seller will not take any action which would require Seller to
seek shareholder approval of such issuance unless such shareholder approval
is required by law or regulatory body (including but not limited to the
NASDAQ Stock Market, Inc.) as a result of the issuance of the Securities
hereunder.
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12. Miscellaneous.
(a) Except as specifically referenced herein, this Agreement constitutes the
entire contract between the parties, and neither party shall be liable or
bound to the other in any manner by any warranties, representations or
covenants except as specifically set forth herein. Any previous agreement
among the parties related to the transactions described herein is superseded
hereby. This Agreement shall inure to the benefit of and be binding upon
the parties hereto, their respective successors, and no other person shall
have any right or obligation hereunder. This Agreement shall not be
assignable by either party without the prior written consent of the other,
and any assignment in violation hereof shall be void. Notwithstanding the
foregoing, the Buyer may assign its rights in this Agreement to, and the
provisions of this Agreement shall inure to the benefit of, and be
enforceable by, any transferee of any of the Securities or Shares. This
Agreement together with the Form of Debenture constitutes the entire
agreement of the parties with respect to the subject matter hereof. Nothing
in this Agreement, express or implied, is intended to confer upon any party,
other than the parties hereto, and their respective successors and assigns,
any rights, remedies, obligations or liabilities under or by reason of this
Agreement, except as expressly provided herein.
(b) Buyer is an independent contractor, and is not the agent of Seller.
Buyer is not authorized to bind Seller, or to make any representations or
warranties on behalf of Seller.
(c) Seller makes no additional representations or warranty with respect to
Seller, its finances, assets, business prospects or otherwise, except as
disclosed in the Disclosure Documents incorporated herein by reference.
Buyer will advise each purchaser, if any, and potential purchaser of the
Securities, of the foregoing sentence, and that such purchaser is relying on
its own investigation with respect to all such matters, and that such
purchaser will be given access to any and all documents, including without
limitations the Disclosure Documents which have been provided to the Buyer
and his advisors, and Seller personnel as it may reasonably request for such
investigation.
(d) All representations and warranties contained in this Agreement by Seller
and Buyer shall survive the closing of the transactions contemplated by this
Agreement.
(e) This Agreement shall be construed in accordance with the laws of
California and shall be binding upon the successors and assigns of each party
hereto. This Agreement may be executed in counterparts, and the facsimile
transmission of an executed counterpart to this Agreement shall be effective
as an original.
(f) Buyer agrees to indemnify and hold Seller harmless from any and all
claims, damages and liabilities arising from Buyer=s breach of its
representations and/or covenants set forth herein.
9
The undersigned hereby subscribes for ___________________ in principal amount
of Debentures and pays herewith funds in the amount of ____________________
Dollars ($___________ U.S.) (Sales of Debentures are made only in $50,000
increments).
The undersigned acknowledges that this subscription shall not be effective
unless accepted by the Company as indicated below.
Dated this ____ day of December, 1996.
_______________________________________
(Name) (Please Print)
_______________________________________
(Signature)
_______________________________________
(Mailing Address)
_______________________________________
(Country of Execution)
_______________________________________
(Registration instructions)
THIS SUBSCRIPTION IS ACCEPTED BY THE COMPANY ON THE _____ DAY OF ________
1996.
ANTARES RESOURCES CORPORATION
By: _____________________________________
Its: ___________________________
UNITED KINA BREWING GROUP LIMITED
By: _____________________________________
Its: ___________________________
17