20F ITEM 19 EXHIBIT
4.S
AGENCY AGREEMENT --
UNIT PRIVATE PLACEMENT
THIS AGREEMENT dated for
reference November 20, 2003, is made
BETWEEN
KIMBER RESOURCES INC.
, of #215-800 West Pender Street,
Vancouver, BC, V6C 2V6
(the "Issuer");
AND
CANACCORD CAPITAL
CORPORATION , of 2200
– 609 Granville Street, Vancouver, BC, V7Y 1H2
(the "Agent").
WHEREAS:
A.
The
Issuer wishes to privately place with purchasers up to 1,000,000
Units at a price of $0.70 per Unit;
B.
The
Issuer wishes to appoint the Agent to distribute the Units, and the
Agent is willing to accept such appointment on the terms and
conditions of this Agreement;
THE PARTIES to this Agreement
therefore agree:
1.
DEFINITIONS
In this Agreement and the
Recitals hereto:
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(a)
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"Administration
Fee" means the fee which is set out in this Agreement and which is
payable to the Agent by the Issuer in consideration of the Agent's
services in connection with the coordination and review of the
Private Placement;
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(b)
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"Agent's Fee"
means the commission which is set out in this Agreement and which
is payable by the Issuer to the Agent in consideration of the
services performed by the Agent under this Agreement;
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(c)
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"Agent's
Shares" means the previously unissued common shares in the capital
of the Issuer, as presently constituted, which will be issued as
part of the Agent's Units;
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(d)
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"Agent's Units"
means the units of the Issuer which will be issued as part of the
Agent's Fee as set out in this Agreement and which have the terms
provided in this Agreement;
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(e)
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"Agent's
Warrants" means the share purchase warrants of the Issuer which
will be issued as part of the Agent's Fee and which have the terms
provided in this Agreement and the certificates representing such
share purchase warrants;
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(f)
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"Agent's
Warrant Shares" means the previously unissued common shares in the
capital of the Issuer, as presently constituted, which will be
issued upon the exercise of the Agent's Warrants;
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(g)
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"Applicable
Legislation" means the Securities Act or equivalent statute in each
of the Selling Provinces, together with all the regulations and
rules made and promulgated thereunder and all administrative policy
statements, instruments, blanket order and rulings, notices and
administrative directions issued by the Commissions;
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(h)
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"Closing"
means, in respect of any Unit, the day on which that Unit is issued
to any Purchaser;
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(i)
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"Commissions"
means the securities commission or equivalent regulatory authority
in the Selling Provinces;
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(j)
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"Current AIF"
has the meaning defined in the Multilateral Instrument;
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(k)
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"Exemptions"
means the exemptions from the prospectus requirements of the
Applicable Legislation ;
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(l)
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"Exchange"
means the TSX Venture Exchange;
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(m)
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"Exchange
Policies" means the rules and policies of the Exchange;
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(n)
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"Final Closing"
means the last Closing under the Private Placement;
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(o)
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"First Closing"
means the first Closing under the Private Placement;
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(p)
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"Material
Change" has the meaning defined in the Applicable
Legislation;
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(q)
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"Material Fact"
has the meaning defined in the Applicable Legislation;
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(r)
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"Multilateral
Instrument" means Multilateral Instrument 45-102 or any successor
instrument promulgated by the Commissions;
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(s)
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"Multilateral
Instrument Certificate" means Form 45-102F2;
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(t)
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"Private
Placement" means the offering of the Units on the terms and
conditions of this Agreement;
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(u)
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"Purchasers"
means the purchasers of Units pursuant to the Private
Placement;
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(v)
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"Qualifying
Issuer" has the meaning defined in the Multilateral
Instrument;
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(w)
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"Regulation S"
means Regulation S promulgated under the U.S. Securities
Act;
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(x)
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"Regulatory
Authorities" means the Commissions and the Exchange;
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(y)
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"Securities"
means the Units, the Shares, the Warrants and the Warrant Shares,
the Agent's Units, the Agent's Shares, the Agent's Warrants and the
Agent's Warrant Shares;
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(z)
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"Selling
Provinces" means British Columbia, Alberta and Ontario;
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(aa)
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"Shares" means
the previously unissued common shares in the capital of the Issuer,
as presently constituted, which will be issued as part of the
Units;
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(bb)
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"U.S. Person"
means "U.S. person" as defined in Rule 902 of Regulation
S;
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(cc)
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"U.S.
Securities Act" means the Securities Act of 1933 (United
States), as amended;
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(dd)
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"United States"
means "United States" as defined in Rule 902 of Regulation
S;
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(ee)
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"Units" means
the units of the Issuer to be offered by the Issuer pursuant to
this Agreement having the terms provided in this
Agreement;
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(ff)
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"Warrants"
means the non-transferable share purchase warrants of the Issuer
which will be issued as part of the Units and the Agent's Units and
which have the terms provided in this Agreement and the
certificates representing such share purchase warrants;
and
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(gg)
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"Warrant
Shares" means the previously unissued common shares in the capital
of the Issuer, as presently constituted, which will be issued upon
the exercise of the Warrants.
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2.
APPOINTMENT
OF AGENT
2.1
The Issuer appoints the Agent as its exclusive agent and the Agent
accepts the appointment and agrees to act as the exclusive agent of
the Issuer to use its commercially reasonable efforts to find and
introduce to the Issuer potential purchasers to purchase up to
1,000,000 Units, at a price of $0.70 per Unit, by way of private
placement under the Exemptions, or in such jurisdictions, other
than the Selling Provinces or the United States, as may be agreed
by the Agent and the Issuer.
3.
THE
UNITS
3.1
Each Unit will consist of one Share and one-half of one Warrant and
the Shares and Warrants will be issued and registered in the names
of the Purchasers or their nominees.
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4.
WARRANTS
4.1
The right to purchase a Warrant Share under a Warrant may be
exercised at any time until the close of business on the day which
is 12 months from the date of issue of the Unit that included such
Warrant.
4.2
One whole Warrant will entitle the holder, on exercise, to purchase
one Warrant Share at a price of $0.80 per Warrant Share during the
exercise period of the Warrant.
4.3
The certificates representing the Warrants will, among other
things, include provisions for the appropriate adjustment in the
class, number and price of the Warrant Shares issued upon exercise
of the Warrants upon the occurrence of certain events, including
any subdivision, consolidation or reclassification of the Issuer's
common shares, the payment of stock dividends and the amalgamation
of the Issuer.
4.4
The issue of the Warrants will not restrict or prevent the Issuer
from obtaining any other financing, or from issuing additional
securities or rights, during the period within which the Warrants
may be exercised.
5.
AGENT'S
FEE
5.1
In consideration of the services performed by the Agent under this
Agreement, the Issuer agrees to pay to the Agent on each Closing an
Agent's Fee consisting of:
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(a)
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a payment equal
to 8% of the gross proceeds received by the Issuer from the sale of
the Units on such Closing, which shall be paid as to one-half in
cash and as to the other half in the form of Agent's Units;
and
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(b)
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that number of
Agent's Warrants which is equal to 20% of the number of Units sold
on such Closing.
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5.2
The cash portion of the Agent's Fee will be paid in lawful Canadian
currency.
5.3
As provided for in subsection 5.1(a), one-half of the Agent's Fee
shall be paid by the issuance of Agent's Units at a deemed price of
$0.70 per Agent's Unit.
5.4
Each Agent's Unit will consist of one Agent's Share and one-half of
one Warrant and the Agent's Shares and Warrants comprising the
Agent's Units will be registered in the name of the Agent or such
other party or parties as the Agent may reasonably
request.
5.5
The right to purchase an Agent's Warrant Share under an Agent's
Warrant may be exercised at any time until the close of business on
the day which is 12 months from the date such Agent's Warrant was
issued to the holder.
5.6
One whole Agent's Warrant will entitle the holder, on exercise, to
purchase one Agent's Warrant Share at a price of $0.80 per Agent's
Warrant Share during the exercise period of the Agent's
Warrant.
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5.7
The Agent's Warrants will be non-transferable except as permitted
by the Applicable Legislation and any order granted by any
Commission having jurisdiction.
5.8
The certificates representing the Agent's Warrants will, among
other things, include provisions for the appropriate adjustment in
the class, number and price of the Agent's Warrant Shares issued
upon exercise of the Agent's Warrants upon the occurrence of
certain events, including any subdivision, consolidation or
reclassification of the Issuer's common shares, the payment of
stock dividends and the amalgamation of the Issuer.
5.9
The issue of the Agent's Warrants will not restrict or prevent the
Issuer from obtaining any other financing, or from issuing
additional securities or rights, during the period within which the
Agent's Warrants may be exercised.
5.10
The
Issuer will also pay the Agent, on First Closing of the Private
Placement or termination of this Agreement, the Administration Fee
of $5,000.
6.
OFFERING
RESTRICTIONS
6.1
The Agent will only sell the Units to persons who represent
themselves as being:
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(a)
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persons
purchasing as principal;
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(b)
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qualified to
purchase the Units, the Shares and the Warrants under the
Exemptions;
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(c)
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persons
resident in such jurisdictions, other than the Selling Provinces or
the United States, as may be agreed by the Issuer and the Agent;
and
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(d)
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persons who are
not U.S. Persons , or in the
United States (which terms herein shall have the meanings defined
in Regulation S).
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6.2
The Agent agrees that at the time any buy order for the Units is
placed by clients of the Agent, the buyer will be outside the
United States, or the Agent and all persons acting on its behalf
will reasonably believe that the buyer is outside the United
States, and neither the Agent nor any person acting on its behalf
will have knowledge that such transaction has been pre-arranged
with a buyer in the United States.
6.3
Neither the Issuer, the Agent, nor any of their respective
affiliates, nor any person acting on behalf of any of the
foregoing, will offer or sell any of the Securities to U.S. Persons
or in the United States, or undertake any activity for the purpose
of, or that could reasonably be expected to have the effect of,
conditioning the market for the Securities in the United
States.
6.4
The Agent agrees that it has not entered and will not enter into
any contractual arrangement with respect to the distribution of the
Securities except in accordance with this agreement and that it
will require each selling group member to agree in writing, for the
benefit of the Issuer, to comply with, and shall use its best
efforts to ensure that each selling group member complies with the
provisions of this Section 6 as if such provisions applied to such
selling group member.
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6.5
The Private Placement has not been and will not be advertised in
any way.
6.6
No selling or promotional expenses will be paid or incurred in
connection with the Private Placement, except for professional
services or for services performed by a registered
dealer.
7.
SUBSCRIPTIONS
The Agent will use its best
efforts to obtain from each Purchaser introduced by the Agent, and
deliver to the Issuer, on or before each Closing duly completed and
signed subscriptions in the form consented to by the Issuer and the
Agent and executed by the Purchaser (the "Subscription
Agreement").
8.
FILINGS
WITH THE REGULATORY AUTHORITIES
8.1
The Issuer will forthwith give to the Exchange written notice of
the terms of this Agreement and the proposed Private Placement and
all other information required by the Exchange Policies (the
"Notice").
8.2
The Issuer will forthwith provide the Agent and its solicitor with
a copy of the Notice, and, forthwith on receipt, a copy of the
preliminary and final letters of acceptance of the Notice from the
Exchange.
8.3
The Issuer will file all required documents, pay all required
filing fees and undertake any other actions required by the
Exchange Policies in order to obtain the approval of the Exchange
to the Private Placement.
8.4
Within 10 days of each Closing of the Private Placement, the Issuer
will:
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(a)
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file with the
Commission any report required to be filed by the Applicable
Legislation in connection with the Private Placement, in the
required form; and
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(b)
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provide the
Agent's solicitor with copies of the report or reports.
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9.
CLOSINGS
9.1
In this Section:
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(a)
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"Certificates"
means the certificates representing the Shares and the Warrants
sold, the Agent's Shares and the Agent's Warrants to be issued, on
a Closing in the names and denominations reasonably requested by
the Agent or the Purchasers, as the case may be; and
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(b)
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"Proceeds"
means the gross proceeds of the sale of Units on a Closing,
less:
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(i)
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any portion of
the Agent's Fee which is payable in cash;
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(ii)
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at the First
Closing, the Administration Fee;
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(iii)
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the reasonable
expenses of the Agent in connection with the Private Placement
which have not been paid by the Issuer; and
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(iv)
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any amount paid
directly to the Issuer by any Purchaser in connection with the
Private Placement.
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9.2
The Issuer and the Agent will cause the Private Placement to close
in one or more Closings, however, the Final Closing will not occur
more than 60 days after the date of the price reservation form or
notice filed with the Exchange or such other date as may be
acceptable to the Exchange.
9.3
The Issuer will, on each Closing, issue and deliver the
Certificates to the Agent, or at the Agent's request, to the
Purchasers, against payment of the Proceeds.
9.4
If the Issuer has satisfied all of its material obligations under
this Agreement, the Agent will, on each Closing, pay the Proceeds
to the Issuer against delivery of the Certificates.
9.5
The Issuer will endorse the Certificates, and the certificates
representing the Warrant Shares and the Agent's Warrant Shares with
such legends as required by the Applicable Legislation and the
Exchange.
10.
CONDITIONS
OF CLOSINGS
10.1
The
obligations of the Agent on each Closing will be conditional upon
the following:
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(a)
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on each
Closing, the Issuer will have delivered to the Agent and its
solicitor a favourable opinion of the Issuer's solicitor dated as
of the date of such Closing, in a form acceptable to the Agent and
its solicitor as to all legal matt
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