This is page 1 of 17 pages of a subscription
agreement and related appendixes, schedules and forms.
Collectively, these pages together
are referred to as the "Subscription Agreement".
20F ITEM 19 EXHIBIT
4.U
KIMBER RESOURCES
INC.
NON-BROKERED PRIVATE PLACEMENT
SUBSCRIPTION
AGREEMENT
(U.S. SUBSCRIBERS)
INSTRUCTIONS TO
PURCHASER
This form is for use by all U.S.
subscribers. A "U.S. subscriber" is any "U.S. Person" under
Regulation S of the United States Securities Act of 1933, as
amended (the "U.S. Securities Act"). This will include (a) any
natural person resident in the United States; (b) any partnership
or corporation organized or incorporated under the laws of the
United States; (c) any partnership or corporation organized outside
the United States by a U.S. Person principally for the purposes of
investing in securities not registered under the U.S. Securities
Act, unless it is organized or incorporated, and owned, by U.S.
accredited investors who are not natural persons, estates or
trusts; (d) any estate of which any executor or administrator is a
U.S. Person.
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1.
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Complete all
the information in the boxes on page 1 and sign where indicated
with an " X ".
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2.
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Complete and
sign the "Accredited Investor Questionnaire (United States)" that
starts on page 5. The purpose of the questionnaire is to determine
whether you meet the standards for participation in a private
placement under applicable federal United States securities laws.
If you complete the "Accredited Investor Questionnaire (United
States)", then such questionnaire will be deemed to be incorporated
by reference into this Subscription Agreement.
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3.
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If you are a
portfolio manager and are purchasing the Purchased Securities (as
defined below) for an account or accounts that are fully managed by
you, then either (a) the aggregate acquisition cost of the
Purchased Securities to you must be at least CAD 97,000 or (b) you
must fall within the British Columbia definition of an "accredited
investor" and complete and sign the "Accredited Investor
Questionnaire (British Columbia)" that starts on page 7. The
purpose of the questionnaire is to determine whether you meet the
standards for participation in a private placement under
Multilateral Instrument 45-103 adopted by the British Columbia
Securities Commission.
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4.
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If you are a
corporation, partnership, trust or entity other than an individual,
then complete and sign the "Corporate Placee Registration Form"
(Form 4C) that starts on page 9.
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5.
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If you are a
portfolio manager, complete and sign the "Portfolio Manager:
Additional Undertaking and Certification" on page 11.
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Subscription
Agreement (with related appendixes, schedules and forms)
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Page 2 of 17 pages
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NON-BROKERED PRIVATE
PLACEMENT
SUBSCRIPTION AGREEMENT
TO:
KIMBER
RESOURCES INC. (the "Issuer"), of #215, 800 West Pender St.,
Vancouver, British Columbia, V6C 2V6
Subject and pursuant to the terms
set out in the Terms on pages 2 to 4, the General Provisions on
pages 12 to 17 and the other schedules and appendixes incorporated
by reference, the Purchaser hereby irrevocably subscribes for, and
on Closing will purchase from the Issuer, the following securities
at the following price:
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_______________________________________ Units
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CAD $0.70 per
Unit for a total purchase price of CAD $
__________________________________________________
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The Purchaser
owns, directly or indirectly, the following securities of the
Issuer:
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_____________________________________________________________________________________________
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The Purchaser directs the Issuer
to issue, register and deliver the certificates representing the
Purchased Securities as follows:
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REGISTRATION
INSTRUCTIONS:
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DELIVERY INSTRUCTIONS:
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Name to appear
on certificate
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Name and
account reference, if applicable
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Account
reference, if applicable
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Contact
name
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Address
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Address
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Telephone
number
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EXECUTED by the Purchaser this ____________day of
_____________ , 2003. By executing this Agreement, the
Purchaser certifies that the Purchaser and any beneficial
purchaser for whom the Purchaser is acting is resident in the
jurisdiction shown as the "Address of the Purchaser". Unless
the jurisdiction shown as the "Address of the Purchaser" is British
Columbia, then the Purchaser certifies that the Purchaser is
NOT resident in British Columbia.
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WITNESS:
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EXECUTION BY
PURCHASER :
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_________________________________________________________________
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X
_______________________________________________________________
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Signature of
witness
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Signature
of individual (if Purchaser is an
individual)
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_________________________________________________________________
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X
_______________________________________________________________
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Name of
witness
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Authorized
signatory (if Purchaser is not an
individual)
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_________________________________________________________________
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_________________________________________________________________
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Address of
witness
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Name of
Purchaser ( please print )
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_________________________________________________________________
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_________________________________________________________________
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Name of
authorized signatory ( please print )
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ACCEPTED this
________ day of ________ , 2003.
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KIMBER
RESOURCES INC.
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_________________________________________________________________
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Per:
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Address of
Purchaser (residence)
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_________________________________________________________________
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Authorized
signatory
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Telephone
number and e-mail address
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By signing this acceptance, the
Issuer agrees to be bound by the Terms on pages 2 to 4, the General
Provisions on pages 12 to 17 and the other schedules and appendixes
incorporated by reference.
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Subscription
Agreement (with related appendixes, schedules and
forms)
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Page 2 of 17 pages
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TERMS
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Reference
date of this Agreement
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The date this
Subscription Agreement is executed by the Purchaser on page 1
(the "Agreement Date")
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The Offering
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The
Issuer
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Kimber
Resources Inc. (the "Issuer")
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The
Agent
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Not applicable.
This is a non-brokered private placement.
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Offering
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The offering
consists of an aggregate of 1,000,000 units (the "Units") of the
Issuer at a price of CAD 0.70 per unit for a total amount of CAD
700,000.
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Purchased
Securities
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The "Purchased
Securities" are Units. Each Unit consists of one previously
unissued common share, as presently constituted (a "Share") and
one-half of one non-transferable share purchase warrant (a
"Warrant") of the Issuer. One whole Warrant will entitle the
holder, on exercise, to purchase one additional common share of the
Issuer (a "Warrant Share") for a period of 12 months from the date
of issuance of the Unit, at a price of CAD 0.80 per Warrant
Share.
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Finder's
Fee
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Not
applicable.
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Price
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CAD 0.70 per
Unit
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Warrants
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The Warrants
will be issued and registered in the name of the Purchasers or
their nominees.
The Warrants will be non-transferable.
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.
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.
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Selling
Jurisdictions
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The Units may
be sold in the United States (the "Selling
Jurisdiction").
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Exemptions
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The offering
will be made in accordance with the following exemptions from
prospectus requirements and U.S. registration
requirements:
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a)
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the B.C.
"accredited investor" exemption (s. 5.1, Multilateral Instrument MI
45-103);
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b)
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the "CAD 97,000
purchaser" exemption (section 74(2)(4) of the Securities Act
(British Columbia);
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c)
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the exemption
provided under British Columbia Instrument 72-503 for certain
purchasers who reside outside British
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Subscription
Agreement (with related appendixes, schedules and
forms)
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Page 3 of 17 pages
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Columbia and
who are not foreign portfolio managers purchasing for accounts
fully managed by them; and
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d)
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Regulation D of
the United States Securities Act of 1933, as amended (the
"U.S. Securities Act").
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Resale
restrictions and legends applicable to a
Purchaser who is a U.S. Person
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The Purchased
Securities will be subject to an indefinite hold period in the
United States unless registered in the United States or an
exemption from the registration requirements of the U.S. Securities
Act is available.
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At the time of
Closing of the offering, the Issuer will be a "qualifying issuer"
within the meaning of Multilateral Instrument 45-102. Under the
applicable securities laws of British Columbia, the Purchased
Securities will therefore be subject to a four-month hold period
that starts to run on Closing.
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The Purchaser
acknowledges that the certificates representing the Purchased
Securities will bear the following legends:
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"Unless
permitted under securities legislation, the holder of the
securities shall not trade the securities before [date that is four
months and a day after the Closing.]"
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"Without prior
written approval of the TSX Venture Exchange and compliance with
all applicable securities legislation, the securities presented by
this certificate may not be sold, transferred, hypothecated or
otherwise traded on or through the facilities of the TSX Venture
Exchange or otherwise in Canada or to or for the benefit of a
Canadian resident until [insert the date following the fourth month
after the distribution]."
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"The securities
represented hereby have not been registered under the U.S.
Securities Act of 1933, as amended (the "U.S. Securities
Act") or under any state securities laws. The holder hereof, by
purchasing such securities, agrees for the benefit of the
corporation that such securities may be offered, sold or otherwise
transferred, assigned or pledged only pursuant to an effective
registration statement under the U.S. Securities Act or pursuant to
an exemption therefrom if the corporation has received an opinion
of counsel satisfactory to the corporation that such registration
is not required."
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The Issuer
agrees that the Securities will bear no legends other than those
set out here.
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The Purchaser
is advised to consult with its own legal counsel or advisor to
determine the resale restrictions that may be applicable to
it.
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Closing
Date
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The Closing
will take place on December 11, 2003, or such other date as the
Issuer and the Purchaser may agree upon in writing.
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Additional
definitions
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See "GENERAL
PROVISIONS".
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Subscription
Agreement (with related appendixes, schedules and
forms)
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Page 4 of 17 pages
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The Issuer
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Jurisdiction
of organization
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The Issuer is
incorporated under the laws of British Columbia.
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Authorized
capital
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The authorized
capital of the Issuer is 80,000,000 common shares.
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Outstanding
capital
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The Issuer has
18,400,045 common shares issued and outstanding as of December 2,
2003.
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Stock
exchange listings
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Shares of the
Issuer are listed on the TSX Venture Exchange (the "Exchange").
Also listed are the common share purchase warrants issued by the
Issuer in 2002.
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"Securities
Legislation Applicable
to the Issuer"
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In the context
of the private placement contemplated under this Subscription
Agreement, the "Securities Legislation Applicable to the Issuer" is
the Securities Act (British Columbia) and the regulations
and rules thereunder, the U.S. Securities Act and any regulations
and rules made and promulgated thereunder and all administrative
policy statements, blanket orders and rulings, notices and other
administrative directions issued by the British Columbia Securities
Commission and the United States Securities and Exchange
Commission.
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END OF TERMS
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Subscription
Agreement (with related appendixes, schedules and
forms)
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Page 5 of 17 pages
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Accredited Investor
Questionnaire
(United States)
(Capitalized terms not
specifically defined in this questionnaire have the meaning
ascribed to them in the Subscription Agreement to which this
questionnaire is attached.)
In connection with the execution
of the Subscription Agreement to which this questionnaire is
attached, the undersigned (the "Purchaser") represents and warrants
to Kimber Resources Inc. (the "Issuer") that:
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1.
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If the
Purchaser is an individual (that is, a natural person and not a
corporation, partnership, trust or other entity), then it satisfies
one or more of the categories indicated below (please place an "X"
on the appropriate line or lines):
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________
Category 1
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A natural
person whose individual net worth, or joint net worth with that
person's spouse, at the date of this questionnaire exceeds USD
1,000,000;
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________
Category 2
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A natural
person who had an individual income in excess of USD 200,000 in
each of the two most recent years or joint income with that
person's spouse in excess of USD 300,000 in each of those years and
has a reasonable expectation of reaching the same income level in
the current year; or
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________
Category 3
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A natural
person who is a broker or dealer registered pursuant to Section 15
of the United States Securities Exchange Act of
1934;
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2.
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If the
Purchaser is a corporation, partnership, trust or other entity),
then it satisfies one or more of the categories indicated below
(please place an "X" on the appropriate lines):
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________
Category 1
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An organization
described in Section 501(c)(3) of the United States Internal
Revenue Code, a corporation, a Massachusetts or similar business
trust or partnership, not formed for the specific purpose of
acquiring the Securities, with total assets in excess of USD
5,000,000;
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________
Category 2
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A trust that
(a) has total assets in excess of USD 5,000,000, (b) was not formed
for the specific purpose of acquiring the Securities and (c) is
directed in its purchases of securities by a person who has such
knowledge and experience in financial and business matters that
he/she is capable of evaluating the merits and risks of an
investment in the Securities;
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________
Category 3
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An investment
company registered under the United States Investment
Company Act of 1940 or a business development company as
defined in Section 2(a)(48) of that Act;
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________
Category 4
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A Small
Business Investment Company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the United States
Small Business Investment Act of
1958;
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________
Category 5
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A private
business development company as defined in Section 202(a)(22) of
the Investment Advisors Act of 1940; or
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Category 6
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An entity which
is a broker or dealer registered pursuant to Section 15 of the
United States Securities Exchange Act of 1934;
or
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Category 7
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An entity in
which all of the equity owners satisfy the requirements of one or
more of the foregoing categories.
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Subscription
Agreement (with related appendixes, schedules and
forms)
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Page 6 of 17 pages
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The statements made in this
questionnaire are true and accurate to the best of my information
and belief and I will promptly notify the Issuer of any changes in
the answers.
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Dated
_______________2003
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X
_______________________________________________________________
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Signature of
individual (if Purchaser is an individual)
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X
_______________________________________________________________
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Authorized
signatory (if Purchaser is not an
individual)
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_________________________________________________________________
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Name of
Purchaser ( please print )
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_________________________________________________________________
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Name of
authorized signatory ( please print )
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_________________________________________________________________
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Official
capacity of authorized signatory ( please print
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Subscription
Agreement (with related appendixes, schedules and
forms)
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Page 7 of 17 pages
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Accredited Investor
Questionnaire
(British Columbia)
(Capitalized terms not
specifically defined in this questionnaire have the meaning
ascribed to them in the Subscription Agreement to which this
questionnaire is attached.)
In connection with the execution
of the Subscription Agreement to which this Schedule is attached,
the undersigned (the "Purchaser") represents and warrants to the
Issuer that the Purchaser satisfies one or more of the categories
indicated below (please place an "X" on the appropriate
lines):
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________
Category 1
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a Canadian
financial institution, or an authorized foreign bank listed in
Schedule III of the Bank Act (Canada)
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Category 2
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the Business
Development Bank of Canada incorporated under the Business
Development Bank of Canada Act (Canada)
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Category 3
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an association
under the Cooperative Credit Associations Act (Canada)
located in Canada or a central cooperative credit society for which
an order has been made under subsection 473(1) of that
Act
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Category 4
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a subsidiary of
any person or company referred to in Categories 1 to 3, if the
person or company owns all of the voting securities of the
subsidiary, except the voting securities required by law to be
owned by directors of that subsidiary
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________
Category 5
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a person or
company registered under the securities legislation of a
jurisdiction of Canada, as an adviser or dealer, other than a
limited market dealer registered under the Securities Act
(Ontario) or the Securities Act (Newfoundland and
Labrador)
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Category 6
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an individual
registered or formerly registered under the securities legislation
of a jurisdiction of Canada, as a representative of a person or
company referred to in Category 5
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________
Category 7
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the government
of Canada or a jurisdiction of Canada, or any crown corporation,
agency or wholly owned entity of the government of Canada or a
jurisdiction of Canada
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________
Category 8
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a municipality,
public board or commission in Canada
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Category 9
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any national,
federal, state, provincial, territorial or municipal government of
or in any foreign jurisdiction, or any agency of that
government
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Category 10
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a pension fund
that is regulated by either the Office of the Superintendent of
Financial Institutions (Canada) or a pension commission or similar
regulatory authority of a jurisdiction of Canada
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________
Category 11
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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 CAD
1,000,000
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________
Category 12
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an individual
whose net income before taxes exceeded CAD 200,000 in each of the
two most recent years or whose net income before taxes combined
with that of a spouse exceeded CAD 300,000 in each of the two most
recent years and who, in either case, reasonably expects to exceed
that net income level in the current year
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________
Category 13
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a person or
company, other than a mutual fund or non-redeemable investment
fund, that, either alone or with a spouse, has net assets of at
least CAD 5,000,000, and unless the person or company is an
individual, that amount is shown on its most recently prepared
financial statements
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Subscription
Agreement (with related appendixes, schedules and
forms)
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Page 8 of 17 pages
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________
Category 14
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a mutual fund
or non-redeemable investment fund that, in the local jurisdiction,
distributes its securities only to persons or companies that are
accredited investors
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________
Category 15
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a mutual fund
or non-redeemable investment fund that, in the local jurisdiction,
is distributing or has distributed its securities under one or more
prospectuses for which the regulator has issued
receipts
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________
Category 16
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a trust company
or trust corporation registered or authorized to carry on business
under the Trust and Loan Companies Act (Canada) or under
comparable legislation in a jurisdiction of Canada
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