Issuer
Free Writing Prospectus
Filed
Pursuant to Rule 433
Registration
Statement No. 333-162677
December
16, 2009
The
Company has filed a registration statement, including a prospectus,
(Registration No. 333-162677), with the SEC for the offering to which this
communication relates. Before you invest, you should read the
prospectus in that registration statement, together with the prospectus
supplement to be prepared and filed with the SEC in connection with the offering
to which this communication relates, and other documents the Company has filed
with the SEC for more complete information about the Company and this offering.
You may get these documents, when available, for free by visiting EDGAR on the
SEC website at www.sec.gov. Alternatively, the Company, Rodman & Renshaw,
LLC or any dealer participating in the offering will arrange to send you the
base prospectus, the prospectus supplement (when available), and any other
offering documents if you request them by calling (212) 356-0549.
SECURITIES
PURCHASE AGREEMENT
This
Securities Purchase Agreement (this “
Agreement
”) is dated
as of December 16, 2009, between Dejour Enterprises Ltd., a corporation
incorporated under the laws of British Columbia (the “
Company
”), and each
purchaser identified on the signature pages hereto (each such purchaser,
including its successors and assigns, a “
Purchaser
” and,
collectively, the “
Purchasers
”).
WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant to
an effective registration statement under the Securities Act of 1933, as amended
(the “
Securities
Act
”), and pursuant to an exemption from registration and prospectus
requirements under Canadian Securities Laws (as hereinafter defined) the Company
desires to issue and sell to each Purchaser, and each Purchaser, severally and
not jointly, desires to purchase from the Company, securities of the Company as
more fully described in this Agreement.
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement,
and for other good and valuable consideration the receipt and adequacy of which
are hereby acknowledged, the Company and each Purchaser agree as
follows:
ARTICLE
I.
DEFINITIONS
1.1
Definitions
. In
addition to the terms defined elsewhere in this Agreement, for all purposes of
this Agreement, the following terms have the meanings set forth in this Section
1.1:
“
Acquiring Person
”
shall have the meaning ascribed to such term in Section 4.4.
“
Action
” shall have
the meaning ascribed to such term in Section 3.1(l).
“
Affiliate
” means any
Person that, directly or indirectly through one or more intermediaries, controls
or is controlled by or is under common control with a Person as such terms are
used in and construed under Rule 405 under the Securities Act.
“
Board of Directors
”
means the board of directors of the Company.
“
Business Day
” means
any day except any Saturday, any Sunday, any day which is a federal legal
holiday in the United States or any day on which banking institutions in the
State of New York or the Province of British Columbia are authorized or required
by law or other governmental action to close.
“
Canadian Securities
Regulators
” means the securities regulatory authorities in each of the
Reporting Provinces.
“
Closing
” shall have
the meaning ascribed to such term in Section 2.2.
“
Closing Date
” means
the Trading Day on which all of the Transaction Documents have been executed and
delivered by the applicable parties thereto, and all conditions precedent to (i)
each Purchaser’s obligation to pay its respective Subscription Amount and (ii)
the Company’s obligations to deliver the Common Shares and Warrants included in
the Units have, in each case, been satisfied or waived, but in no event later
than the third Trading Day following the date hereof.
“
Commission
” means the
United States Securities and Exchange Commission.
“
Common Shares
” means
common shares without par value in the capital of the Company and any other
class of securities into which such shares may hereafter be reclassified or
changed.
“
Common Share
Equivalents
” means any securities of the Company or any Subsidiary which
would entitle the holder thereof to acquire at any time Common Shares,
including, without limitation, any debt, preferred shares, rights, options,
warrants or other instrument that is at any time convertible into or exercisable
or exchangeable for, or otherwise entitles the holder thereof to receive, Common
Shares.
“
Continuous Disclosure
Reports
” shall have the meaning ascribed to such term in Section
3.1(i).
“
Disclosure Schedule
”
means the disclosure schedule of the Company delivered concurrently
herewith.
“
Evaluation Date
”
shall have the meaning ascribed to such term in Section 3.1(v).
“
Exchange Act
” means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
“
Exempt Issuance
”
means the issuance of (a) Common Shares or options to purchase Common Shares to
employees, officers or directors of the Company pursuant to any stock or option
plan duly adopted for such purpose by a majority of the Board of Directors, (b)
securities upon the exercise or exchange of or conversion of any Securities
issued hereunder and/or other securities exercisable or exchangeable for or
convertible into Common Shares issued and outstanding on the date of this
Agreement, provided that such securities have not been amended since the date of
this Agreement to increase the number of such securities or to decrease the
exercise price, exchange price or conversion price of such securities, and (c)
securities issued pursuant to acquisitions or strategic transactions approved by
a majority of the disinterested directors of the Company, provided that any such
issuance shall only be to a Person (or to the equityholders of a Person) which
is, itself or through its subsidiaries, an operating company or an owner of an
asset in a business synergistic with the business of the Company and shall
provide to the Company additional benefits in addition to the investment of
funds, but shall not include a transaction in which the Company is issuing
securities primarily for the purpose of raising capital or to an entity whose
primary business is investing in securities.
“
GAAP
” shall have the
meaning ascribed to such term in Section 3.1(j).
“
Indebtedness
” shall
have the meaning ascribed to such term in Section 3.1(dd).
“
Intellectual Property
Rights
” shall have the meaning ascribed to such term in Section
3.1(s).
“
Liens
” means a lien,
charge, security interest, encumbrance, right of first refusal, preemptive right
or other restriction.
“
Material Adverse
Effect
” shall have the meaning ascribed to such term in Section
3.1(b).
“
Material Permits
”
shall have the meaning ascribed to such term in Section 3.1(p).
“
OFAC
” shall have the
meaning ascribed to such term in Section 3.1(kk).
“
Per Unit Purchase
Price
” means
$0.30
, subject to adjustment
for any reverse or forward stock split, stock dividends, share consolidation or
other similar transaction of the Common Shares that occurs after the date of
this Agreement and prior to the Closing.
“
Person
” means an
individual or corporation, partnership, trust, incorporated or unincorporated
association, joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or other entity of any
kind.
“
Placement Agent
”
means Rodman & Renshaw, LLC, in its capacity as placement agent under the
Placement Agent Agreement.
“
Placement Agent
Agreement
” means the placement agent agreement dated December 3, 2009
between the Company and the Placement Agent.
“
Proceeding
” means an
action, claim, suit, investigation or proceeding (including, without limitation,
an informal investigation or partial proceeding, such as a deposition), whether
commenced or threatened.
“
Prospectus
” means the
final prospectus filed for the Registration Statement pursuant to Rule
424(b).
“
Prospectus
Supplement
” means the supplement to the Prospectus complying with Rule
424(b) of the Securities Act to be filed with the Commission and delivered by
the Company to each Purchaser prior to the Closing.
“
Purchaser Party
”
shall have the meaning ascribed to such term in Section 4.7.
“
Registration
Statement
” means the effective registration statement with Commission
file No. 333-162677 which registers the sale of the Securities to the
Purchasers.
“
Reporting Provinces
”
means each of Provinces of the British Columbia, Alberta, Ontario and
Quebec.
“
Required Approvals
”
shall have the meaning ascribed to such term in Section (a)(e).
“
Rule 144
” means Rule
144 promulgated by the Commission pursuant to the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission having substantially the same effect as such
Rule.
“
Rule 424
” means Rule
424 promulgated by the Commission pursuant to the Securities Act, as such Rule
may be amended or interpreted from time to time, or any similar rule or
regulation hereafter adopted by the Commission having substantially the same
purpose and effect as such Rule.
“
Securities
” means,
collectively, the Common Shares and Warrants comprising the Units and the
Warrant Shares.
“
Securities
Regulators
” means, collectively, the Commission and the Canadian
Securities Regulators, and Securities Regulator means any one of
them.
“
Short Sales
” means
all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange
Act (but shall not be deemed to include the location and/or reservation of
borrowable Common Shares).
“
Subscription Amount
”
means, as to each Purchaser, the aggregate amount determined by multiplying the
Purchase Price by the number of Units to be issued to such Purchaser pursuant to
this Agreement.
“
Subsidiary
” shall
have the meaning ascribed thereto in Rule 405 under the Securities
Act.
“
Term Sheet
” means the
term sheet attached hereto as
Exhibit B
, which
contains the final terms of the Offering and certain other disclosure regarding
the Company.
“
Trading Day
” means a
day on which the Company’s principal Trading Market in the United States is open
for trading.
“
Trading Market
” means
any of the following markets or exchanges on which the Common Shares are listed
or quoted for trading on the date in question: the NYSE AMEX, the Nasdaq Capital
Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York
Stock Exchange, the OTC Bulletin Board, the Toronto Stock Exchange or the TSX
Venture Stock Exchange (or any successors to any of the
foregoing).
“
Transaction
Documents
” means this Agreement, the Placement Agent Agreement, the
certificates representing the Warrants and any other documents or agreements
executed in connection with the transactions contemplated
hereunder.
“
Transfer Agent
” means
Computershare Investor Services Inc., the current transfer agent of the Company,
and any successor transfer agent of the Company.
“
Units
” shall have the
meaning ascribed to such term in Section 2.1 of this Agreement.
“
Variable Rate
Transaction
” shall have the meaning ascribed to such term in Section
4.11(b).
“
Warrants
” shall have
the meaning ascribed to such term in Section 2.1 of this Agreement.
“
Warrant Shares
” means
the Common Shares issuable upon exercise of the Warrants included in the
Units.
“
WS
” means Weinstein
Smith LLP with offices located at 420 Lexington Avenue, Suite 2620, New York,
New York 10170-0002.
ARTICLE
II.
PURCHASE
AND SALE
2.1
Subscription
. On the
Closing Date, subject to the terms and conditions of this Agreement, each
Purchaser agrees to subscribe for, and the Company agrees to sell to each
Purchaser, that number of units of the Corporation (“
Unit
”) set forth
opposite such Purchaser’s name on the signature pages hereto at a per Unit
subscription price equal to the Per Unit Purchase Price. Each Unit
will comprise one Common Share and
three-quarters of one
Common
Share purchase warrant (each whole warrant, a “
Warrant
”). Each
Warrant will entitle the holder thereof to purchase one Warrant Share for a
period of
five
years
commencing
181 days following the Closing Date
at a purchase price of
$0.40
per share and will be
represented by a certificate in the form of
Exhibit A
attached
hereto.
2.2
Closing
. The
completion of the purchase and sale of Units pursuant to this Agreement (the
“
Closing
”)
shall take place at the offices of WS (or such other place specified by the
Company and the Placement Agent) at a time on the Closing Date to be specified
by the Company and the Placement Agent. On or prior to the Closing Date, (i)
each Purchaser shall pay the applicable Subscription Amount by wire transfer of
immediately available funds to an account specified by the Company and (ii) the
Company shall cause the Common Shares and Warrants comprising the Units to be
delivered to the Purchaser, with delivery of the Common Shares to be made
through the facilities of the Depository Trust Company’s Deposit Withdrawal
Agent Commission (“
DWAC
”)
system.
2.3
Closing
Conditions
.
(a)
Conditions to the
Obligations of the Company
. The obligations of the Company hereunder in
respect of each Purchaser shall be subject to satisfaction or waiver of the
following conditions:
(i) this
Agreement duly executed by such Purchaser shall have been delivered to the
Company;
(ii) the
accuracy in all material respects on the Closing Date of the representations and
warranties of such Purchaser contained herein (unless such representations and
warranties were made as of a specific date); and
(iii) all
obligations, covenants and agreements of such Purchaser required to be performed
at or prior to the Closing Date shall have been performed.
(b)
Conditions to the
Obligations of the Purchasers
. The respective obligations of each
Purchaser hereunder in connection with the Closing shall be subject to
satisfaction or waiver of the following conditions:
(i) this
Agreement duly executed by the Company shall have been delivered to such
Purchaser;
(ii) legal
opinions of the Company’s U.S. counsel and Canadian counsel, in each case dated
the Closing Date and in substantially the form that is customary for a
transaction of this nature and reasonably acceptable to the Placement Agent
attached hereto, shall have been delivered to the Placement Agent and the
Purchasers;
(iii) a
long-form comfort letter of the Company’s auditors dated the Closing Date, in
form and substance satisfactory to the Placement Agent, acting reasonably, shall
have been delivered to the Placement Agent and the Purchasers;
(iv) a
copy of the Company’s irrevocable instructions to the Transfer Agent instructing
the Transfer Agent to deliver that number of Common Shares to be issued to such
Purchaser via the DWAC system registered in the name of such Purchaser or as
such Purchaser shall direct shall have been delivered to such
Purchaser;
(v) a
copy of the warrant certificate representing that number of Warrants to be
issued to such Purchaser registered in the name of such Purchaser or as such
Purchaser shall instruct shall have been delivered to such Purchaser (with the
original warrant certificate representing such Warrants to be delivered to such
Purchaser within three Trading Days of the Closing Date);
(vi) the
Prospectus and Prospectus Supplement shall have been delivered to such Purchaser
(which Prospectus and Prospectus Supplement may be delivered to such Purchaser
in accordance with Rule 172 under the Securities Act);
(vii) the
accuracy in all material respects on the Closing Date of the representations and
warranties of the Company contained herein (unless such representations and
warranties were delivered as of a specific date);
(viii) all
obligations, covenants and agreements of the Company required to be performed at
or prior to the Closing Date shall have been performed by the
Company;
(ix) there
shall have been no Material Adverse Effect with respect to the Company since the
date hereof;
(x) from
the date of the Placement Agent Agreement until Closing, trading in the Common
Shares shall not have been ceased or suspended by any Securities Regulator or
the Company’s principal Trading Market in either the United States or Canada
(except for any suspension of trading of limited duration agreed to by the
Company, which suspension shall be terminated prior to the Closing), and, at any
time prior to the Closing Date, trading in securities generally as reported by
Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall
not have been established on securities whose trades are reported by such
service, or on any Trading Market, nor shall a banking moratorium have been
declared by the United States, New York State authorities or Canadian
authorities; and
(xi) each
of the conditions to the obligations of the Placement Agent and the Purchasers
set forth in Placement Agent Agreement shall have been satisfied or waived by
the Placement Agent.
ARTICLE
III.
REPRESENTATIONS
AND WARRANTIES
3.1
Representations and
Warranties of the Company
. Except as set forth in the
Continuous Disclosure Reports or in the Disclosure Schedule, which Disclosure
Schedule shall be deemed a part hereof and shall qualify any representation or
otherwise made herein to the extent of the disclosure contained in the
corresponding section of the Disclosure Schedule, the Company hereby makes the
following representations and warranties to each Purchaser:
(a)
Subsidiaries
. All
of the Subsidiaries of the Company are set forth in the Continuous Disclosure
Reports or on Section 3.1(a) of the Disclosure Schedule. The Company
owns, directly or indirectly, all of the common shares, capital stock or other
equity interests of each Subsidiary free and clear of any Liens, and all of the
issued and outstanding common shares or shares of capital stock of each
Subsidiary are validly issued and are fully paid, non-assessable and free of
preemptive and similar rights to subscribe for or purchase
securities. If the Company has no subsidiaries, all other references
to the Subsidiaries or any of them in the Transaction Documents shall be
disregarded.
(b)
Organization and
Qualification
. The Company and each of the Subsidiaries is an
entity duly incorporated or otherwise organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or
organization, with the requisite power and authority to own and use its
properties and assets and to carry on its business as currently
conducted. Neither the Company nor any Subsidiary is in violation or
default of any of the provisions of its respective certificate or articles of
incorporation, bylaws or other organizational or charter
documents. Each of the Company and the Subsidiaries is duly qualified
to conduct business and is in good standing as a foreign corporation or other
entity in each jurisdiction in which the nature of the business conducted or
property owned by it makes such qualification necessary, except where the
failure to be so qualified or in good standing, as the case may be, could not
have or reasonably be expected to result in: (i) a material adverse effect on
the legality, validity or enforceability of any Transaction Document, (ii) a
material adverse effect on the results of operations, assets, business,
prospects or condition (financial or otherwise) of the Company and the
Subsidiaries, taken as a whole, or (iii) a material adverse effect on the
Company’s ability to perform in any material respect on a timely basis its
obligations under any Transaction Document (any of (i), (ii) or (iii), a
“Material Adverse Effect”) and to the knowledge of the Company, no Proceeding
has been instituted in any such jurisdiction revoking, limiting or curtailing or
seeking to revoke, limit or curtail such power and authority or
qualification.
(c)
Authorization;
Enforcement
. The Company has the requisite corporate power and
authority to enter into and to consummate the transactions contemplated by each
of the Transaction Documents and otherwise to carry out its obligations
hereunder and thereunder. The execution and delivery of each of the
Transaction Documents by the Company and the consummation by it of the
transactions contemplated hereby and thereby have been duly authorized by all
necessary action on the part of the Company and no further action is required by
the Company, the Board of Directors or the Company’s stockholders in connection
therewith other than in connection with the Required Approvals. Each
Transaction Document to which it is a party has been (or upon delivery will have
been) duly executed by the Company and, when delivered in accordance with the
terms hereof and thereof, will constitute the valid and binding obligation of
the Company enforceable against the Company in accordance with its terms, except
(i) as limited by general equitable principles (regardless of whether
enforceability is considered in a proceeding in equity or at law) and applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors’ rights generally, (ii) as
limited by laws relating to the availability of specific performance, injunctive
relief or other equitable remedies and (iii) insofar as indemnification and
contribution provisions may be limited by applicable law.
(d)
No
Conflicts
. The execution, delivery and performance by the
Company of the Transaction Documents, the issuance and sale of the Securities
and the consummation by it of the transactions contemplated hereby and thereby
to which it is a party do not and will not (i) conflict with or violate any
provision of the Company’s or any Subsidiary’s certificate or articles of
incorporation, articles, bylaws or other organizational or charter documents, or
(ii) breach or result in a default (or an event that with notice or lapse of
time or both would become a default) under, result in the creation of any Lien
upon any of the properties or assets of the Company or any Subsidiary, or give
to others any rights of termination, amendment, acceleration or cancellation
(with or without notice, lapse of time or both) of, any agreement, credit
facility, debt or other instrument (evidencing a Company or Subsidiary debt or
otherwise) or other understanding to which the Company or any Subsidiary is a
party or by which any property or asset of the Company or any Subsidiary is
bound or subject, or (iii) subject to the Required Approvals, result in a
violation of any law, rule, regulation, order, judgment, injunction, decree or
other restriction of any court or governmental authority to which the Company or
a Subsidiary is subject (including federal and state securities laws and
regulations), or to which any property or asset of the Company or a Subsidiary
is bound or subject; except in the case of each of clauses (ii) and (iii), such
as could not have or reasonably be expected to result in a Material Adverse
Effect.
(e)
Filings, Consents and
Approvals
. Except as have already been obtained, taken or
made, the Company is not required to obtain any consent, waiver, authorization
or order of, give any notice to, or make any filing or registration with, any
court or other federal, state, local or other governmental authority or other
Person in connection with the execution, delivery and performance by the Company
of the Transaction Documents, other than: (i) the filings required pursuant to
Section 4.3 of this Agreement, (ii) the filing with the Commission of the
Prospectus Supplement, (iii) such applications as are required to be made to,
and such approvals as are required to be obtained from, the NYSE AMEX and the
Toronto Stock Exchange in order for the Common Shares included in the Units and
the Warrant Shares issuable upon exercise of the Warrants to be listed thereon
and (iv) such filings as are required to be made under applicable state
securities laws and Canadian Securities Laws (collectively, the “Required
Approvals”).
(f)
Issuance of the
Securities
. The Common Shares and Warrants comprising the Units have been
duly authorized and, in the case of the Common Shares, when issued and paid for
in accordance with the terms of this Agreement, will be duly and validly issued,
fully paid and non-assessable shares in the capital of the Company, free and
clear of all Liens imposed by the Company. The Warrant Shares, when
issued in accordance with the terms of the Warrants, will be validly issued,
fully paid and non-assessable shares in the capital of the Company, free and
clear of all Liens imposed by the Company. The Company has reserved
from its duly authorized shares the maximum number of Common Shares issuable
pursuant to this Agreement (including the Warrant Shares). The form of
certificate representing the Common Shares included in the Units and the Warrant
Shares has been duly approved by the Board of Directors and complies with the
provisions of the Business Corporations Act (
British Columbia
) and the
requirements of NYSE AMEX and the Toronto Stock Exchange and, by the Closing,
the form of certificate representing the Warrants included in the Units will
have been approved by the Board of Directors.
(g)
Registration
. The
Company has prepared and filed the Registration Statement in conformity with the
requirements of the Securities Act, and such Registration Statement became
effective on November 3, 2009 (the “
Effective
Date
”). No stop order preventing or suspending the
effectiveness of the Registration Statement or suspending or preventing the use
of the Prospectus has been issued by the Commission and no proceedings for that
purpose have been instituted or, to the knowledge of the Company, are threatened
by the Commission. The Company filed the Prospectus with the
Commission pursuant to Rule 424(b) on November 12, 2009. At the time
the Registration Statement and any amendments thereto became effective, at the
date of this Agreement and at the Closing Date, the Registration Statement and
any amendments thereto conformed and will conform in all material respects to
the requirements of the Securities Act and did not and will not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading.
At the time the Prospectus or any amendment or supplement thereto was or is
issued and at the Closing Date, the Prospectus and any amendments or supplements
thereto including the Term Sheet and the Prospectus Supplement conformed and
will conform in all material respects to the requirements of the Securities Act
and did not and will not contain an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading
provided
, that the Company
makes no representations or warranty in this paragraph with respect to the
Placement Agent’s name and the statements set forth under the heading “Plan of
Distribution” in the Prospectus only insofar as such statements relate to the
amount of selling concession and re-allowance or to over-allotment and related
activities that may be undertaken by the Placement Agent. Assuming the accuracy
of the Purchaser’s representations and warranties set forth in Section 3.2, the
Company has filed or caused to be filed all documents, applications, forms or
undertakings required to be filed by the Company so that the transactions of
purchase and sale contemplated by this Agreement may lawfully occur without the
necessity of filing a prospectus or any similar document in the Reporting
Provinces.
(h)
Capitalization
. The
share capital of the Company is as set forth in Continuous Disclosure Reports,
except as set forth in Section 3.1(h) of the Disclosure
Schedule. Except as disclosed in the Continuous Disclosure Reports,
the Company has not issued any Common Shares or equity securities since its most
recently filed periodic report under the Exchange Act, other than pursuant to
the exercise of employee stock options under the Company’s stock option plan,
the issuance of Common Shares to employees pursuant to the Company’s employee
stock purchase plan and pursuant to the conversion and/or exercise of Common
Share Equivalents outstanding as of the date of the most recently filed periodic
report under the Exchange Act. No Person has any right of first
refusal, preemptive right, right of participation, or any similar right to
participate in the transactions contemplated by the Transaction
Documents. Except as disclosed in the Continuous Disclosure Reports
or as a result of the purchase and sale of the Units, there are no outstanding
options, warrants, scrip rights to subscribe to, calls or commitments of any
character whatsoever relating to, or securities, rights or obligations
convertible into or exercisable or exchangeable for, or giving any Person any
right to subscribe for or acquire, any Common Shares, or contracts, commitments,
understandings or arrangements by which the Company or any Subsidiary is or may
become bound to issue additional Common Shares or Common Share
Equivalents. Except for the issuance of Warrant Shares upon the
exercise of the Warrants included in the Warrants and the issuance of
compensation warrants to the Placement Agent pursuant to the Placement Agent
Agreement, the issuance and sale of the Units will not obligate the Company to
issue any Common Shares or other securities to any Person and will not result in
a right of any holder of any securities of the Company to adjust the exercise,
conversion, exchange or reset price of or under any of such securities. All of
the outstanding Common Shares of the Company are validly issued, fully paid and
non-assessable, have been issued in compliance with all applicable laws,
including Canadian Securities Laws and U.S. federal and state securities laws,
and none of such outstanding Common Shares was issued in violation of any
preemptive rights or similar rights to subscribe for or purchase
securities. No further approval or authorization of any shareholder
or the Board of Directors is or will at Closing be required for the issuance and
sale of the Securities. There are no shareholders agreements, voting
agreements or other similar agreements with respect to the Common Shares to
which the Company is a party or, to the knowledge of the Company, between or
among any of the Company’s shareholders.
(i)
Continuous
Disclosure
. The Company has filed all reports, schedules,
forms, statements and other documents required to be filed or furnished by the
Company under the Securities Act and the Exchange Act, including pursuant to
Section 13(a) or 15(d) thereof, and under Canadian Securities Laws for the two
years preceding the date hereof (or such shorter period as the Company was
required by law or regulation to file such material) (the foregoing materials,
including the exhibits thereto and documents incorporated by reference therein,
together with the Prospectus and the Prospectus Supplement, being collectively
referred to herein as the “
Continuous Disclosure
Reports
”) on a timely basis or has received a valid extension of such
time of filing and has filed any such Continuous Disclosure Reports prior to the
expiration of any such extension. As of their respective dates, the
Continuous Disclosure Reports complied in all material respects with the
requirements of the Securities Act, the Exchange Act and Canadian Securities
Laws, as applicable, and none of the Continuous Disclosure Reports, when filed,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. Without limiting the generality of the foregoing, the Company
believes that its Continuous Disclosure Reports comply with the requirements of
National Instrument 51-101 –
Standards of Disclosure for Oil and
Gas Activities
of the Canadian Securities Administrators.
(j)
Financial Statements.
The financial statements of the Company included in the Continuous Disclosure
Reports comply in all material respects with applicable accounting requirements
and the rules and regulations of the Commission and the Canadian Securities
Regulators with respect thereto as in effect at the time of
filing. Such financial statements have been prepared in accordance
with Canadian generally accepted accounting principles applied on a consistent
basis during the periods involved (“
GAAP
”), except as may
be otherwise specified in such financial statements or the notes thereto and
except that unaudited financial statements may not contain all footnotes
required by GAAP, and fairly present in all material respects the financial
position of the Company and its consolidated Subsidiaries as of and for the
dates thereof and the results of operations and cash flows for the periods then
ended, subject, in the case of unaudited statements, to normal, immaterial,
year-end audit adjustments. There has not been any “reportable disagreement”
(within the meaning of National Instrument 51-102
Continuous Disclosure Obligations
of the Canadian Securities Administrators) with the auditors of the
Company.
(k)
Material Changes;
Undisclosed Events, Liabilities or Developments.
Since the
date of the latest audited financial statements included within the Continuous
Disclosure Reports, except as specifically disclosed in a subsequent Continuous
Disclosure Report filed prior to the date hereof, (i) there has been no event,
occurrence or development that has had or that could reasonably be expected to
result in a Material Adverse Effect, (ii) the Company has not incurred any
liabilities (contingent or otherwise) other than (A) trade payables and accrued
expenses incurred in the ordinary course of business consistent with past
practice and (B) liabilities not required to be reflected in the Company’s
financial statements pursuant to GAAP or disclosed in filings made with the
Commission or the Canadian Securities Regulators, (iii) the Company has not
altered its method of accounting, (iv) the Company has not declared or made any
dividend or distribution of cash or other property to its stockholders or
purchased, redeemed or made any agreements to purchase or redeem any shares of
its capital stock and (v) the Company has not issued any equity securities to
any officer, director or Affiliate, except pursuant to existing Company stock
option plans. The Company does not have pending before the Commission
or any Canadian Securities Regulator any request for confidential treatment of
information. Except for the issuance of the Securities contemplated by this
Agreement or as set forth on Section 3.1(k) of the Disclosure Schedule, no
event, liability, fact, circumstance, occurrence or development has occurred or
exists or is reasonably expected to occur or exist with respect to the Company
or its Subsidiaries or their respective business, prospects, properties,
operations, assets or financial condition that would be required to be disclosed
by the Company under applicable securities laws at the time this representation
is made or deemed made that has not been publicly disclosed at least one Trading
Day prior to the date that this representation is made.
(l)
Litigation
. Except
as disclosed in the Continuous Disclosure Reports, there is no action, suit,
inquiry, notice of violation, proceeding or investigation pending or, to the
knowledge of the Company, threatened against or affecting the Company, any
Subsidiary or any of their respective properties before or by any court,
arbitrator, governmental or administrative agency or regulatory authority
(federal, state, county, local or foreign) (collectively, an “
Action
”), whether in
the United States, Canada or elsewhere, which (i) adversely affects or
challenges the legality, validity or enforceability of any of the Transaction
Documents or the Securities or (ii) would, if there were an unfavorable
decision, have or reasonably be expected to result in a Material Adverse
Effect. Neither the Company nor any Subsidiary, nor any director or
officer thereof, is or has been the subject of any Action involving a claim of
violation of or liability under U.S. or Canadian federal, state or provincial
securities laws or a claim of breach of fiduciary duty. There has not
been, and to the knowledge of the Company, there is not pending or contemplated,
any investigation by any Securities Regulator involving the Company or any
current or former director or officer of the Company. The Commission
has not issued any stop order or other order suspending the effectiveness of any
registration statement filed by the Company or any Subsidiary under the Exchange
Act or the Securities Act.
(m)
Labor
Relations
. Except as disclosed in the Continuous Disclosure
Reports, no material labor dispute exists or, to the knowledge of the Company,
is imminent with respect to any of the employees of the Company, which would
reasonably be expected to result in a Material Adverse Effect. None
of the Company’s or its Subsidiaries’ employees is a member of a union that
relates to such employee’s relationship with the Company or such Subsidiary, and
neither the Company nor any of its Subsidiaries is a party to a collective
bargaining agreement, and the Company and its Subsidiaries believe that their
relationships with their employees are good. To the knowledge of the
Company, no executive officer of the Company is, or is now expected to be, in
violation of any material term of any employment contract, confidentiality,
disclosure or proprietary information agreement or non-competition agreement, or
any other contract or agreement or any restrictive covenant in favor of any
third party, and the continued employment of each such executive officer does
not subject the Company or any of its Subsidiaries to any liability with respect
to any of the foregoing matters. The Company and its Subsidiaries are
in compliance with all applicable U.S. and Canadian federal, state, provincial,
local and foreign laws and regulations relating to employment and employment
practices, terms and conditions of employment and wages and hours, except where
the failure to be in compliance would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(n)
Compliance
. Except
as disclosed in the Continuous Disclosure Reports, neither the Company nor any
Subsidiary: (i) is in default under or in violation of (and no event has
occurred that has not been waived that, with notice or lapse of time or both,
would result in a default by the Company or any Subsidiary under), nor has the
Company or any Subsidiary received notice of a claim that it is in default under
or that it is in violation of, any indenture, loan or credit agreement or any
other agreement or instrument to which it is a party or by which it or any of
its properties is bound (whether or not such default or violation has been
waived), (ii) is in violation of any judgment, decree or order of any court,
arbitrator or governmental body or (iii) is or has been in violation of any
statute, rule, ordinance or regulation of any governmental authority, including
without limitation all foreign, federal, state and local laws relating to taxes,
environmental protection, occupational health and safety, product quality and
safety and employment and labor matters, except in each case as could not have
or reasonably be expected to result in a Material Adverse Effect.
(o)
Environmental Laws
.
Except to the extent that any violation or other matter referred to in this
Section 3.1(o) could not have or reasonably be expected to result in a Material
Adverse Effect:
(i) the
Company and each of its Subsidiaries is not in violation of any applicable
federal, state, provincial, municipal or local laws, regulations, orders,
government decrees or ordinances with respect to environmental, health or safety
matters (collectively, “
Environmental
Laws
”);
(ii) the
Company and each of its Subsidiaries has operated its business at all times and
has received, handled, used, stored, treated, shipped and disposed of all
contaminants without violation of Environmental Laws;
(iii) there
have been no spills, releases, deposits or discharges of hazardous or toxic
substances, contaminants or wastes into the earth, air or into any body of water
or any municipal or other sewer or drain water systems by the Company or any of
its Subsidiaries that have not been remedied;
(iv) no
orders, directions or notices have been issued and remain outstanding pursuant
to any Environmental Laws relating to the business or assets of the Company or
any of its Subsidiaries; and
(v) neither
the Company nor any of its Subsidiaries has failed to report to the proper
federal, state, provincial, municipal or other political subdivision,
government, department, commission, bureau, board, agency or instrumentality,
whether domestic or foreign, the occurrence of any event which is required to be
so reported by any Environmental Law.
(p)
Regulatory
Permits
. The Company and the Subsidiaries possess all
certificates, authorizations and permits issued by the appropriate federal,
state, local or foreign regulatory authorities necessary to conduct their
respective businesses as described in the Continuous Disclosure Reports, except
where the failure to possess such permits would not reasonably be expected to
result in a Material Adverse Effect (“
Material Permits
”),
and neither the Company nor any Subsidiary has received any notice of
proceedings relating to the revocation or modification of any Material
Permit.
(q)
Operational Matters
.
Any and all operations of the Company and each of its Subsidiaries and, to the
knowledge of the Company, any and all operations by third parties on or in
respect of their respective assets and properties, have been conducted
substantially in accordance with good oil and gas industry practices and
material compliance with applicable, laws, rules, regulations, orders and
directions of governmental and other competent authorities with respect to oil
and gas exploration.
(r)
Title to
Assets
. The Company and the Subsidiaries have good and
marketable title in fee simple to all real property owned by them and good and
marketable title in all personal property owned by them, in each case that is
material to the business of the Company and the Subsidiaries, in each case free
and clear of all Liens, except for Liens (i) as do not materially affect the
value of such property, (ii) do not materially interfere with the use made and
proposed to be made of such property by the Company and the Subsidiaries, (iii)
Liens for the payment of federal, state or other taxes, the payment of which is
neither delinquent nor subject to penalties, and (iv) Liens and defects in title
that would not have, or reasonably be expected to have Material Adverse
Effect. Any real property and facilities held under lease by the
Company and the Subsidiaries are held by them under valid, subsisting and
enforceable leases with which the Company and the Subsidiaries are in
compliance.
(s)
Patents and
Trademarks
. The Company and the Subsidiaries have, or have
rights to use, all patents, patent applications, trademarks, trademark
applications, service marks, trade names, trade secrets, inventions, copyrights,
licenses and other intellectual property rights and similar rights necessary or
material for use in connection with their respective businesses as described in
the Continuous Disclosure Reports and which the failure to so have could have a
Material Adverse Effect (collectively, the “
Intellectual Property
Rights
”). None of, and neither the Company nor any Subsidiary
has received a notice (written or otherwise) that any of, the Intellectual
Property Rights has expired, terminated or been abandoned, or is expected to
expire or terminate or be abandoned, within two years from the date of this
Agreement. Neither the Company nor any Subsidiary has received, since
the date of the latest audited financial statements included within the
Continuous Disclosure Reports, a written notice of a claim or otherwise has any
knowledge that the Intellectual Property Rights violate or infringe upon the
rights of any Person, except as could not reasonably be expected to have a
Material Adverse Effect. To the knowledge of the Company, all such
Intellectual Property Rights are enforceable and there is no existing
infringement by another Person of any of the Intellectual Property
Rights. The Company and its Subsidiaries have taken reasonable
security measures to protect the secrecy, confidentiality and value of all of
their intellectual properties, except where failure to do so could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(t)
Insurance
. The
Company and the Subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are prudent
and customary in the businesses in which the Company and the Subsidiaries are
engaged, including, but not limited to, directors and officers insurance
coverage at least equal to the aggregate Subscription Amount. Neither
the Company nor any Subsidiary has any reason to believe that it will not be
able to renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers as may be necessary to
continue its business without a significant increase in cost.
(u)
Transactions With Affiliates
and Employees
. Except as set forth in the Continuous
Disclosure Reports, none of the officers or directors of the Company and, to the
knowledge of the Company, none of the employees of the Company is presently a
party to any transaction with the Company or any Subsidiary (other than for
services as employees, officers and directors), including any contract,
agreement or other arrangement providing for the furnishing of services to or
by, providing for rental of real or personal property to or from, or otherwise
requiring payments to or from any officer, director or such employee or, to the
knowledge of the Company, any entity in which any officer, director, or any such
employee has a substantial interest or is an officer, director, trustee or
partner, in each case in excess of $120,000 other than for (i) payment of salary
or consulting fees for services rendered, (ii) reimbursement for expenses
incurred on behalf of the Company and (iii) other employee benefits, including
stock option agreements under any stock option plan of the
Company.
(v)
Sarbanes-Oxley; Internal
Accounting Controls
. The Company is in compliance in all
material respects with all applicable requirements of the Sarbanes-Oxley Act of
2002 that are effective as of the date hereof, and all applicable rules and
regulations promulgated by the Commission thereunder that are effective as of
the date hereof and as of the Closing Date. The Company and the
Subsidiaries maintain a system of internal accounting controls sufficient to
provide reasonable assurance that: (i) transactions are executed in accordance
with management’s general or specific authorizations, (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain asset accountability, (iii) access to
assets is permitted only in accordance with management’s general or specific
authorization, and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences. The Company has established disclosure controls and
procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e) and under
Canadian Securities Law) for the Company and designed such disclosure controls
and procedures to ensure that information required to be disclosed by the
Company in the reports it files or submits under the Exchange Act or Canadian
Securities Laws is recorded, processed, summarized and reported, within the time
periods specified in the Commission’s rules and forms or under Canadian
Securities Laws. The Company’s certifying officers have evaluated the
effectiveness of the Company’s disclosure controls and procedures as of the end
of the period covered by the Company’s Annual Report on Form 20-F (such date,
the “
Evaluation
Date
”). The Company presented in its most recently filed
Annual Report on Form 20-F the conclusions of the certifying officers about the
effectiveness of the disclosure controls and procedures based on their
evaluations as of the Evaluation Date. Since the Evaluation Date,
there have been no changes in the Company’s internal control over financial
reporting (as such term is defined in the Exchange Act) that has materially
affected, or is reasonably likely to materially affect, the Company’s internal
control over financial reporting.
(w)
Certain
Fees
. Except as set forth in the Prospectus Supplement, no
brokerage or finder’s fees or commissions are or will be payable by the Company
to any broker, financial advisor or consultant, finder, placement agent,
investment banker, bank or other Person with respect to the transactions
contemplated by the Transaction Documents. The Purchasers shall have
no obligation with respect to any fees or with respect to any claims made by or
on behalf of other Persons for fees of a type contemplated in this Section
3.1(v) that may be due in connection with the transactions contemplated by the
Transaction Documents.
(x)
Investment Company
.
The Company is not, and is not an Affiliate of, and immediately after receipt of
payment for the Securities, will not be or be an Affiliate of, registered or
required to be registered as an “investment company” pursuant to the Investment
Company Act of 1940, as amended.
(y)
Registration
Rights
. No Person has any right to cause the Company to effect
the registration under the Securities Act or Canadian Securities Laws of any
securities of the Company.
(z)
Listing and Maintenance
Requirements
. The Common Shares are registered pursuant to
Section 12(b) or 12(g) of the Exchange Act, and the Company has taken no action
designed to, or which to its knowledge is likely to have the effect of,
terminating the registration of the Common Shares under the Exchange Act nor has
the Company received any notification that the Commission is contemplating
terminating such registration. The Company has not, in the 12 months
preceding the date hereof, received notice from any Trading Market on which the
Common Shares are or have been listed or quoted to the effect that the Company
is not in compliance with the listing or maintenance requirements of such
Trading Market. The Company is, and has no reason to believe that it will not in
the foreseeable future continue to be, in compliance with all such listing and
maintenance requirements. The Company is a “reporting issuer” in each of the
Reporting Provinces and is not included on any list of reporting issuers in
default that may be maintained by Canadian Securities Regulators.
(aa)
Application of Takeover
Protections
. The Company and the Board of Directors have taken
all necessary action, if any, in order to render inapplicable any control share
acquisition, business combination, poison pill (including any distribution under
a rights agreement or shareholder rights plan) or other similar anti-takeover
provision under the Company’s certificate of incorporation (or similar charter
documents) or the laws of its jurisdiction of incorporation that is or could
become applicable to the Purchasers as a result of the Purchasers and the
Company fulfilling their obligations or exercising their rights under the
Transaction Documents, including without limitation as a result of the Company’s
issuance of the Securities and the Purchasers’ ownership of the
Securities.
(bb)
Disclosure
. Except
with respect to the material terms and conditions of the transactions
contemplated by the Transaction Documents, the Company confirms that neither it
nor any other Person acting on its behalf has provided any of the Purchasers or
their agents or counsel with any information that it believes constitutes or
might constitute material, non-public information which is not otherwise
disclosed in the Prospectus Supplement. The Company understands
and confirms that the Purchasers will rely on the foregoing representation in
effecting transactions in securities of the Company. All of the
disclosure furnished by or on behalf of the Company to the Purchasers regarding
the Company, its business and the transactions contemplated hereby, including
the Disclosure Schedule, is true and correct and does not contain any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements made therein, in light of the circumstances under
which they were made, not misleading. The press releases disseminated by the
Company during the twelve months preceding the date of this Agreement taken as a
whole do not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made and
when made, not misleading. The Company acknowledges and agrees that
no Purchaser makes or has made any representations or warranties with respect to
the transactions contemplated hereby other than those specifically set forth in
Section 3.2 hereof.
(cc)
No Integrated
Offering
. Assuming the accuracy of the Purchasers’ representations and
warranties set forth in Section 3.2, neither the Company, nor any of its
Affiliates, nor any Person acting on its or their behalf has, directly or
indirectly, made any offers or sales of any security or solicited any offers to
buy any security, under circumstances that would cause this offering of the
Securities to be integrated with prior offerings by the Company for purposes of
any applicable shareholder approval provisions of any Trading Market on which
any of the securities of the Company are listed or designated.
(dd)
Solvency
. Based
on the consolidated financial condition of the Company as of the Closing Date,
after giving effect to the receipt by the Company of the proceeds from the sale
of the Units hereunder, (i) the fair saleable value of the Company’s assets
exceeds the amount that will be required to be paid on or in respect of the
Company’s existing debts and other liabilities (including known contingent
liabilities) as they mature, (ii) the Company’s assets do not constitute
unreasonably small capital to carry on its business as now conducted and as
proposed to be conducted including its capital needs taking into account the
particular capital requirements of the business conducted by the Company, and
projected capital requirements and capital availability thereof, and (iii) the
current cash flow of the Company, together with the proceeds the Company would
receive, were it to liquidate all of its assets, after taking into account all
anticipated uses of the cash, would be sufficient to pay all amounts on or in
respect of its liabilities when such amounts are required to be
paid. The Company does not intend to incur debts beyond its ability
to pay such debts as they mature (taking into account the timing and amounts of
cash to be payable on or in respect of its debt). Except as disclosed
in the Continuous Disclosure Reports, the Company has no knowledge of any facts
or circumstances which lead it to believe that it will file for reorganization
or liquidation under the bankruptcy or reorganization laws of any jurisdiction
within one year from the Closing Date and after giving effect to the receipt by
the Company of the proceeds of the sale of the Units. Section 3.1(cc)
of the Disclosure Schedule sets forth as of the date hereof all outstanding
secured and unsecured Indebtedness of the Company or any Subsidiary, or for
which the Company or any Subsidiary has commitments. For the purpose of this
Agreement, “
Indebtedness
” means
(x) any liabilities for borrowed money or amounts owed in excess of $50,000
(other than trade accounts payable incurred in the ordinary course of business),
(y) all guaranties, endorsements and other contingent obligations in respect of
indebtedness of others, whether or not the same are or should be reflected in
the Company’s balance sheet (or the notes thereto), except guaranties by
endorsement of negotiable instruments for deposit or collection or similar
transactions in the ordinary course of business; and (z) the present value of
any lease payments in excess of $50,000 due under leases required to be
capitalized in accordance with GAAP. Neither the Company nor any Subsidiary is
in default with respect to any Indebtedness.
(ee)
Tax
Status
. Except for matters that would not, individually or in
the aggregate, have or reasonably be expected to result in a Material Adverse
Effect, the Company and each Subsidiary (i) has made or filed all U.S. and
Canadian federal, state and provincial income and all foreign income and
franchise tax returns, reports and declarations required by any jurisdiction to
which it is subject, (ii) has paid all taxes and other governmental assessments
and charges that are material in amount, shown or determined to be due on such
returns, reports and declarations and (iii) has set aside on its books provision
reasonably adequate for the payment of all material taxes for periods subsequent
to the periods to which such returns, reports or declarations
apply. There are no unpaid taxes in any material amount claimed to be
due by the taxing authority of any jurisdiction, and the officers of the Company
or of any Subsidiary know of no basis for any such claim.
(ff)
Foreign Corrupt
Practices
. Neither the Company, nor to the knowledge of the
Company, any agent or other person acting on behalf of the Company, has (i)
directly or indirectly, used any funds for unlawful contributions, gifts,
entertainment or other unlawful expenses related to foreign or domestic
political activity, (ii) made any unlawful payment to foreign or domestic
government officials or employees or to any foreign or domestic political
parties or campaigns from corporate funds, (iii) failed to disclose fully any
contribution made by the Company (or made by any person acting on its behalf of
which the Company is aware) which is in violation of law, or (iv) violated in
any material respect any provision of the Foreign Corrupt Practices Act of 1977,
as amended.
(gg)
Accountants
. The
Company’s accounting firm is set forth on Section 3.1(ff) of the Disclosure
Schedule. To the knowledge and belief of the Company, such accounting
firm is a registered public accounting firm as required by the Exchange Act and
Canadian Securities Laws.
(hh)
Acknowledgment Regarding
Purchasers’ Purchase of Units
. The Company acknowledges and
agrees that, save for two directors of the Company who are purchasing Units,
each Purchaser is acting solely in the capacity of an arm’s length purchaser
with respect to the Transaction Documents and the transactions contemplated
thereby. The Company further acknowledges that no Purchaser is acting
as a financial advisor or fiduciary of the Company (or in any similar capacity)
with respect to the Transaction Documents and the transactions contemplated
thereby and any advice given by any Purchaser or any of its respective
representatives or agents in connection with the Transaction Documents and the
transactions contemplated thereby is merely incidental to such Purchaser’s
purchase of the Units. The Company further represents to each
Purchaser that the Company’s decision to enter into this Agreement and the other
Transaction Documents has been based solely on the independent evaluation of the
transactions contemplated hereby by the Company and its
representatives.
(ii)
Acknowledgement Regarding
Purchaser’s Trading Activity
. Anything in this Agreement or
elsewhere herein to the contrary notwithstanding (except for Sections 3.2(f) and
4.13 hereof), it is understood and acknowledged by the Company that: (i) none of
the Purchasers has been asked by the Company to agree, nor has any Purchaser
agreed, to desist from purchasing or selling, long and/or short, securities of
the Company, or “derivative” securities based on securities issued by the
Company or to hold any of the Securities for any specified term; (ii) past or
future open market or other transactions by any Purchaser, specifically
including, without limitation, Short Sales or “derivative” transactions, before
or after the closing of this or future private placement transactions, may
negatively impact the market price of the Company’s publicly-traded securities;
(iii) any Purchaser, and counter-parties in “derivative” transactions to which
any such Purchaser is a party, directly or indirectly, presently may have a
“short” position in the Common Shares, and (iv) each Purchaser shall not be
deemed to have any affiliation with or control over any arm’s length
counter-party in any “derivative” transaction. The Company further
understands and acknowledges that (y) one or more Purchasers may engage in
hedging activities at various times during the period that any of the Securities
are outstanding, including, without limitation, during the periods that the
value of the Warrant Shares issuable upon exercise of the Warrants are being
determined, and (z) such hedging activities (if any) could reduce the value of
the existing shareholders' equity interests in the Company at and after the time
that the hedging activities are being conducted. The Company acknowledges
that such aforementioned hedging activities do not constitute a breach of any of
the Transaction Documents.
(jj)
Regulation M
Compliance
. The Company has not, and to its knowledge no one acting
on its behalf has, (i) taken, directly or indirectly, any action designed to
cause or to result in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of any of the
Securities, (ii) sold, bid for, purchased, or, paid any compensation for
soliciting purchases of, any of the Securities, or (iii) paid or agreed to pay
to any Person any compensation for soliciting another to purchase any other
securities of the Company, other than, in the case of clauses (ii) and (iii),
compensation paid to the Placement Agent in connection with the placement of the
Securities.
(kk)
Office of Foreign Assets
Control
. Neither the Company nor, to the Company's knowledge,
any director, officer, agent, employee or affiliate of the Company is currently
subject to any U.S. sanctions administered by the Office of Foreign Assets
Control of the U.S. Treasury Department (“
OFAC
”).
(ll)
U.S. Real Property Holding
Corporation
. The Company is not and has never been a U.S. real
property holding corporation within the meaning of Section 897 of the Internal
Revenue Code of 1986, as amended, and the Company shall so certify upon any
Purchaser’s request.
(mm)
Bank Holding Company
Act
. Neither the Company nor any of its Subsidiaries or
Affiliates is subject to the Bank Holding Company Act of 1956, as amended (the
“
BHCA
”) and to
regulation by the Board of Governors of the Federal Reserve System (the “
Federal
Reserve
”). Neither the Company nor any of its Subsidiaries or
Affiliates owns or controls, directly or indirectly, five percent (5%) or more
of the outstanding shares of any class of voting securities or twenty-five
percent or more of the total equity of a bank or any entity that is subject to
the BHCA and to regulation by the Federal Reserve. Neither the
Company nor any of its Subsidiaries or Affiliates exercises a controlling
influence over the management or policies of a bank or any entity that is
subject to the BHCA and to regulation by the Federal Reserve.
(nn)
Money
Laundering
. The operations of the Company are and have been
conducted at all times in compliance with applicable financial record-keeping
and reporting requirements of the Currency and Foreign Transactions Reporting
Act of 1970, as amended, applicable money laundering statutes and applicable
rules and regulations thereunder (collectively, the “
Money Laundering
Laws
”), and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company
with respect to the Money Laundering Laws is pending or, to the knowledge of the
Company, threatened.
3.2
Representations, Warranties
and Acknowledgements of the Purchasers
. Each Purchaser, for
itself and for no other Purchaser, hereby represents, warrants and acknowledges
as of the date hereof and as of the Closing Date to the Company as
follows:
(a)
Organization;
Authority
. Such Purchaser is either an individual or an entity
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization with full right, corporate or partnership power
and authority to enter into and to consummate the transactions contemplated by
this Agreement and otherwise to carry out its obligations hereunder and
thereunder. The execution and delivery of this Agreement and performance by such
Purchaser of the transactions contemplated by this Agreement have been duly
authorized by all necessary corporate, partnership, limited liability company or
similar action, as applicable, on the part of such Purchaser. Each
Transaction Document to which it is a party has been duly executed by such
Purchaser and, when delivered by such Purchaser in accordance with the terms
hereof, will constitute the valid and legally binding obligation of such
Purchaser, enforceable against it in accordance with its terms, except: (i) as
limited by general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors’ rights generally, (ii) as limited by laws relating to
the availability of specific performance, injunctive relief or other equitable
remedies and (iii) insofar as indemnification and contribution provisions may be
limited by applicable law.
(b)
Understandings or
Arrangements
. Such Purchaser is acquiring the Units as
principal for its own account and has no intention, or direct or indirect
arrangement or understandings with any other persons to distribute or regarding
the distribution of the Common Shares and Warrants, included in the Units or the
Warrant Shares issuable upon exercise of the Warrants (it being understood that
this representation and warranty shall not limit such Purchaser’s right to sell
any of the Securities pursuant to the Registration Statement or otherwise in
compliance with applicable federal and state securities laws). Such
Purchaser is acquiring the Units hereunder in the ordinary course of its
business.
(c)
Purchaser
Status
. Such Purchaser is, and on each date on which it
exercises any Warrants will be, either: (i) an “accredited investor” as defined
in Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Securities Act or
(ii) a “qualified institutional buyer” as defined in Rule 144A(a) under the
Securities Act. Such Purchaser is not required to be registered as a
broker-dealer under Section 15 of the Exchange Act. Such Purchaser is not a
resident of Canada.
(d)
Experience of Such
Purchaser
. Such Purchaser, either alone or together with its
representatives, has such knowledge, sophistication and experience in business
and financial matters so as to be capable of evaluating the merits and risks of
the prospective investment in the Securities, and has so evaluated the merits
and risks of such investment. Such Purchaser is able to bear the
economic risk of an investment in the Securities and, at the present time, is
able to afford a complete loss of such investment.
(e)
Canadian Securities
Laws
. Each Purchaser acknowledges and understand that (i) no securities
commission or similar regulatory authority has reviewed or passed on the merits
of the Securities, (ii) there is no government or other insurance covering the
Securities, (iii) there are risks associated with the purchase of the Securities
and (iv) the Company is relying on an exemption from registration and prospectus
requirements under Canadian Securities Laws and, as a consequence of acquiring
the Securities pursuant to such exemption, certain protections, rights, remedies
provided under Canadian Securities Laws, including statutory rights of
rescission and damages, will not be available to such Purchaser.
(f)
Resale Restrictions
.
Each Purchaser acknowledges and understands that there are restrictions under
Canadian Securities Laws on such Purchaser’s ability to resell the Securities
over the facilities of the Toronto Stock Exchange, or otherwise resell the
Securities in Canada or to or for the benefit of a resident of Canada, and that
is the responsibility of such Purchaser to find out what those restrictions are
and to comply with them before selling the Securities. Without
limiting the generality of the foregoing, each Purchaser hereby covenants that,
unless permitted under the Canadian Securities Laws, the Common Shares and
Warrants included in the Units, and the Warrant Shares issuable upon the
exercise of the Warrants, may not be traded on the Toronto Stock Exchange or in
Canada, or to or for the benefit of a resident of Canada, before the date that
is four (4) months and a day after the Closing Date. Each Purchaser
further acknowledges and understands that any physical certificate representing
the Common Shares and Warrants included in the Units and, if they are issued
before the date which four months and a day after Closing, the Warrant Shares
issuable upon the exercise of the Warrants, will bear the following
legend:
“UNLESS
PERMITTED UNDER CANADIAN SECURITIES LEGISLATION, THE HOLDER OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE MUST NOT TRADE SUCH SECURITIES BEFORE [
INSERT DATE THAT IS 4 MONTHS AND A
DAY AFTER THE CLOSING DATE
] ON THE TORONTO STOCK EXCHANGE OR IN CANADA OR
TO OR FOR THE BENEFIT OF A RESIDENT OF CANADA.
WITHOUT
PRIOR WRITTEN APPROVAL OF THE TORONTO STOCK EXCHANGE AND COMPLIANCE WITH ALL
APPLICABLE CANADIAN SECURITIES LAWS, THE SECURITIES REPRESENTED BY THIS
CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE TRADED ON OR
THROUGH THE FACILITIES OF THE TORONTO STOCK EXCHANGE OR IN CANADA OR TO OR FOR
THE BENEFIT OF A CANADIAN RESIDENT UNTIL [
INSERT DATE WHICH IS FOUR MONTHS
AFTER CLOSING
]. DELIVERY OF THIS CERTIFICATE MAY NOT CONSTITUTE GOOD
DELIVERY IN SETTLEMENT OF TRANSACTIONS ON CANADIAN STOCK
EXCHANGES.”
(g)
Certain Transactions and
Confidentiality
. Other than consummating the transactions
contemplated hereunder, such Purchaser has not, nor has any Person acting on
behalf of or pursuant to any understanding with such Purchaser, directly or
indirectly executed any purchases or sales, including Short Sales, of the
securities of the Company during the period commencing as of the time that such
Purchaser first received a term sheet (written or oral) as of the Company or any
other Person representing the Company setting forth the material terms of the
transactions contemplated hereunder and ending immediately prior to the
execution hereof. Notwithstanding the foregoing, in the case of a
Purchaser that is a multi-managed investment vehicle whereby separate portfolio
managers manage separate portions of such Purchaser’s assets and the portfolio
managers have no direct knowledge of the investment decisions made by the
portfolio managers managing other portions of such Purchaser’s assets, the
representation set forth above shall only apply with respect to the portion of
assets managed by the portfolio manager that made the investment decision to
purchase the Securities covered by this Agreement. Other than to
other Persons party to this Agreement, such Purchaser has maintained the
confidentiality of all disclosures made to it in connection with this
transaction (including the existence and terms of this transaction).
Notwithstanding the foregoing, for avoidance of doubt, nothing contained herein
shall constitute a representation or warranty, or preclude any actions, with
respect to the identification of the availability of, or securing of, available
shares to borrow in order to effect Short Sales or similar transactions in the
future.
(h)
Receipt of Certain
Information
. Such Purchaser acknowledges receipt of the
Prospectus and Term Sheet and has reviewed the disclosure related to the Company
contained therein and in the documents incorporated by reference
therein.
The
Company acknowledges and agrees that the representations contained in Section
3.2 shall not modify, amend or affect such Purchaser’s right to rely on the
Company’s representations and warranties contained in this Agreement or any
representations and warranties contained in any other Transaction Document or
any other document or instrument executed and/or delivered in connection with
this Agreement or the consummation of the transaction contemplated
hereby.
ARTICLE
IV.
OTHER
AGREEMENTS OF THE PARTIES
4.1
Warrant
Shares
. If all or any portion of a Warrant is exercised at a
time when there is an effective registration statement to cover the issuance or
resale of the Warrant Shares, or if the Warrant is exercised via cashless
exercise, the Warrant Shares issued pursuant to any such exercise shall be
issued free of all legends (except for any legends required under Canadian
Securities Laws if such Warrant is exercised before the date that is four months
and a day after the Closing Date). If at any time following the date
hereof the Registration Statement (or any subsequent registration statement
registering the sale or resale of the Warrant Shares) is not effective or is not
otherwise available for the sale or resale of the Warrant Shares, the Company
shall immediately notify the holders of the Warrants in writing that such
registration statement is not then effective and thereafter shall promptly
notify such holders when the registration statement is effective again and
available for the sale or resale of the Warrant Shares (it being understood and
agreed that the foregoing shall not limit the ability of the Company to issue,
or any Purchaser to sell, any of the Warrant Shares in compliance with
applicable federal and state securities laws and Canadian Securities
Laws). The Company shall use best efforts to keep a registration
statement (including the Registration Statement) registering the issuance or
resale of the Warrant Shares effective during the term of the
Warrants.
4.2
Integration
. The
Company shall not sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in Section 2 of the Securities
Act) that would be integrated with the offer or sale of the Securities for
purposes of the rules and regulations of any Trading Market such that it would
require shareholder approval prior to the closing of such other transaction
unless shareholder approval is obtained before the closing of such subsequent
transaction.
4.3
Securities Laws Disclosure;
Publicity
. The Company shall, by 8:30 a.m. (New York City
time) on the Trading Day immediately following the date hereof, issue a press
release disclosing the material terms of the transactions contemplated hereby,
and furnish a Report on Form 6-K disclosing the material terms of the
transactions contemplated hereby, and including the Transaction Documents as
exhibits thereto within the time required by the Exchange Act. From
and after the issuance of such press release, the Company shall have publicly
disclosed all material, non-public information delivered to any of the
Purchasers by the Company or any of its Subsidiaries, or any of their respective
officers, directors, employees or agents in connection with the transactions
contemplated by the Transaction Documents. The Company and the
Placement Agent shall consult with each other in issuing any other press
releases with respect to the transactions contemplated hereby, and neither the
Company nor any Purchaser shall issue any such press release nor otherwise make
any such public statement without the prior consent of the Company, with respect
to any press release of any Purchaser, or without the prior consent of the
Placement Agent, with respect to any press release of the Company, which consent
shall not unreasonably be withheld or delayed, except if such disclosure is
required by law, in which case the disclosing party shall promptly provide the
other party with prior notice of such public statement or
communication. Notwithstanding the foregoing, the Company shall not
publicly disclose the name of any Purchaser, or include the name of any
Purchaser in any filing with the Commission or any regulatory agency or Trading
Market, without the prior written consent of such Purchaser, except (a) as
required by federal securities law in connection with the filing of final
Transaction Documents (including signature pages thereto) with the Commission
(b) to Canadian Securities Regulators in accordance with Canadian Securities
Laws, (c) the Canadian Revenue Agency, (d) to the extent such disclosure is
otherwise required by law or Trading Market regulations and (e) to the Transfer
Agent. In the event that disclosure of a Purchaser’s name is required
hereunder, the Company shall provide the Purchasers and Placement Agent with
prior notice of such disclosure.
4.4
Shareholder Rights
Plan
. No claim will be made or enforced by the Company or,
with the consent of the Company, any other Person, that any Purchaser is an
“
Acquiring
Person
” under any control share acquisition, business combination, poison
pill (including any distribution under a rights agreement or shareholder rights
plan) or similar anti-takeover plan or arrangement in effect or hereafter
adopted by the Company, or that any Purchaser could be deemed to trigger the
provisions of any such plan or arrangement, by virtue of receiving Securities
under the Transaction Documents or under any other agreement between the Company
and the Purchasers.
4.5
Non-Public
Information
. Except with respect to the material terms and
conditions of the transactions contemplated by the Transaction Documents, the
Company covenants and agrees that neither it, nor any other Person acting on its
behalf, will provide any Purchaser or its agents or counsel with any information
that the Company believes constitutes material non-public
information. The Company understands and confirms that each Purchaser
shall be relying on the foregoing covenant in effecting transactions in
securities of the Company.
4.6
Use of
Proceeds
. Except as set forth on
Schedule 4.6
of the
Disclosure Schedule, the Company shall use the net proceeds from the sale of the
Units hereunder for working capital purposes and shall not use such proceeds
for: (a) the satisfaction of any portion of the Company’s debt (other than
payment of trade payables in the ordinary course of the Company’s business and
prior practices), (b) the redemption of any Common Shares or Common Share
Equivalents, (c) the settlement of any outstanding litigation or (d) in
violation of the FCPA or OFAC regulations.
4.7
Indemnification of
Purchasers
. Subject to the provisions of this Section
4.7, the Company will indemnify and hold each Purchaser and its directors,
officers, shareholders, members, partners, employees and agents (and any other
Persons with a functionally equivalent role of a Person holding such titles
notwithstanding a lack of such title or any other title), each Person who
controls such Purchaser (within the meaning of Section 15 of the Securities Act
and Section 20 of the Exchange Act), and the directors, officers, shareholders,
agents, members, partners or employees (and any other Persons with a
functionally equivalent role of a Person holding such titles notwithstanding a
lack of such title or any other title) of such controlling persons (each, a
“
Purchaser
Party
”) harmless from any and all losses, liabilities, obligations,
claims, contingencies, damages, costs and expenses, including all judgments,
amounts paid in settlements, court costs and reasonable attorneys’ fees and
costs of investigation that any such Purchaser Party may suffer or incur (but
excluding loss of profits) as a result of or relating to (a) any breach of any
of the representations, warranties, covenants or agreements made by the Company
in this Agreement or in the other Transaction Documents or (b) any action
instituted against a Purchaser in any capacity, or any of them or their
respective Affiliates, by any stockholder of the Company who is not an Affiliate
of such Purchaser, with respect to any of the transactions contemplated by the
Transaction Documents (unless such action is based upon a breach of such
Purchaser’s representations, warranties or covenants under the Transaction
Documents or any agreements or understandings such Purchaser may have with any
such stockholder or any violations by such Purchaser of state or federal
securities laws or any conduct by such Purchaser which constitutes fraud, gross
negligence, willful misconduct or malfeasance). If any action shall
be brought against any Purchaser Party in respect of which indemnity may be
sought pursuant to this Agreement, such Purchaser Party shall promptly notify
the Company in writing, and the Company shall have the right to assume the
defense thereof with counsel of its own choosing reasonably acceptable to the
Purchaser Party. Any Purchaser Party shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of such Purchaser
Party except to the extent that (i) the employment thereof has been specifically
authorized by the Company in writing, (ii) the Company has failed after a
reasonable period of time to assume such defense and to employ counsel or (iii)
in such action there is, in the reasonable opinion of counsel, a material
conflict on any material issue between the position of the Company and the
position of such Purchaser Party, in which case the Company shall be responsible
for the reasonable fees and expenses of no more than one such separate
counsel. The Company will not be liable to any Purchaser Party under
this Agreement (y) for any settlement by a Purchaser Party effected without the
Company’s prior written consent, which shall not be unreasonably withheld or
delayed; or (z) to the extent, but only to the extent that a loss, claim, damage
or liability is attributable to any Purchaser Party’s breach of any of the
representations, warranties, covenants or agreements made by such Purchaser
Party in this Agreement or in the other Transaction Documents. The
indemnification required by this Section 4.7 shall be made by periodic payments
of the amount thereof during the course of the investigation or defense, as and
when bills are received or are incurred. The indemnity agreements contained
herein shall be in addition to any cause of action or similar right of any
Purchaser Party against the Company or others, and (y) any liabilities the
Company may be subject to pursuant to law.
4.8
Reservation of Common
Shares
. As of the date hereof, the Company has reserved and the Company
shall continue to reserve and keep available at all times, free of preemptive
rights, a sufficient number of Common Shares for the purpose of enabling the
Company to issue the Common Shares included in the Units issued pursuant to this
Agreement and the Warrant Shares issuable upon any exercise of the
Warrants.
4.9
L
isting of Common
Shares
. The Company hereby agrees to use best efforts to maintain the
listing or quotation of the Common Shares on each of the Trading Markets on
which they are currently listed, and prior to or concurrently with the Closing,
the Company shall apply to list or quote all of the Common Shares included in
the Units and Warrant Shares issuable upon exercise of the Warrants on each such
Trading Market and promptly secure the listing of all of the Common Shares
included in the Units and Warrant Shares issuable upon exercise of the Warrants
on such Trading Markets. The Company further agrees that, if the Company applies
to have the Common Shares listed or quoted on any other Trading Market, it will
include in such application all of the Common Shares included in the Units and
Warrant Shares issuable upon exercise of the Warrants, and will take such other
action as is necessary to cause all of the Common Shares included in the Units
and Warrant Shares issuable upon exercise of the Warrants to be listed or quoted
on such other Trading Market as promptly as possible. If the Common Shares are
accepted for trading on such other Trading Market, the Company will then take
all action reasonably necessary to continue the listing and trading of its
Common Shares on such Trading Market and will comply in all respects with the
Company’s reporting, filing and other obligations under the bylaws or rules of
such Trading Market.
4.10
[RESERVED]
.
4.11
Subsequent Equity
Sales
.
(a) Subject
to Section 4.11(c), from the date hereof until
60 days
after the Closing
Date, neither the Company nor any Subsidiary shall issue, enter into any
agreement to issue or announce the issuance or proposed issuance of any Common
Shares or Common Share Equivalents.
(b) Subject
to Section 4.11(c), from the date hereof until the earlier of (i) the first
anniversary of the date hereof and (ii) the date that the Warrants are no longer
outstanding, the Company shall be prohibited from effecting or entering into an
agreement to effect any issuance by the Company or any of its Subsidiaries of
Common Shares or Common Share Equivalents for cash consideration (or a
combination of units hereof) involving a Variable Rate Transaction in which the
conversion price, exercise price or exchange rate or offer price to receive
Common Shares or Common Share Equivalents is or could be less than the exercise
price of the Warrants. “
Variable Rate
Transaction
” means a transaction in which the Company (i) issues or sells
any debt or equity securities that are convertible into, exchangeable or
exercisable for, or include the right to receive additional Common Shares either
(A) at a conversion price, exercise price or exchange rate or other price that
is based upon and/or varies with the trading prices of or quotations for the
Common Shares at any time after the initial issuance of such debt or equity
securities, or (B) with a conversion, exercise or exchange price that is subject
to being reset at some future date after the initial issuance of such debt or
equity security or upon the occurrence of specified or contingent events
directly or indirectly related to the business of the Company or the market for
the Common Shares or (ii) enters into any agreement, including, but not limited
to, an equity line of credit, whereby the Company may sell securities at a
future determined price. Any Purchaser shall be entitled to obtain
injunctive relief against the Company to preclude any such issuance, which
remedy shall be in addition to any right to collect damages.
(c) Notwithstanding
the foregoing, this Section 4.11 shall not apply in respect of an Exempt
Issuance, except that no Variable Rate Transaction shall be an Exempt
Issuance.
4.12
Equal Treatment of
Purchasers
. No consideration (including any modification of
any Transaction Document) shall be offered or paid to any Person to amend or
consent to a waiver or modification of any provision of any of the Transaction
Documents unless the same consideration is also offered to all of the parties to
the applicable Transaction Documents. For clarification purposes,
this provision constitutes a separate right granted to each Purchaser by the
Company and negotiated separately by each Purchaser, and is intended for the
Company to treat the Purchasers as a class and shall not in any way be construed
as the Purchasers acting in concert or as a group with respect to the purchase,
disposition or voting of Securities or otherwise.
4.13
Certain Transactions and
Confidentiality
. Each Purchaser, severally and not jointly with the other
Purchasers, covenants that neither it nor any Affiliate acting on its behalf or
pursuant to any understanding with it will execute any purchases or sales,
including Short Sales of any of the Company’s securities during the period
commencing with the execution of this Agreement and ending at such time that the
transactions contemplated by this Agreement are first publicly announced
pursuant to the initial press release as described in Section 4.3. Each
Purchaser, severally and not jointly with the other Purchasers, covenants that
until such time as the transactions contemplated by this Agreement are publicly
disclosed by the Company pursuant to the initial press release as described in
Section 4.3, such Purchaser will maintain the confidentiality of the existence
and terms of this transaction and the information included in the Disclosure
Schedule. Notwithstanding the foregoing and notwithstanding anything
contained in this Agreement to the contrary, the Company expressly acknowledges
and agrees that (i) no Purchaser makes any representation, warranty or covenant
hereby that it will not engage in effecting transactions in any securities of
the Company after the time that the transactions contemplated by this Agreement
are first publicly announced pursuant to the initial press release as described
in Section 4.3, (ii) no Purchaser shall be restricted or prohibited from
effecting any transactions in any securities of the Company in accordance with
applicable securities laws from and after the time that the transactions
contemplated by this Agreement are first publicly announced pursuant to the
initial press release as described in Section 4.3 and (iii) no Purchaser shall
have any duty of confidentiality to the Company or its Subsidiaries after the
issuance of the initial press release as described in Section 4.3.
Notwithstanding the foregoing, in the case of a Purchaser that is a
multi-managed investment vehicle whereby separate portfolio managers manage
separate portions of such Purchaser’s assets and the portfolio managers have no
direct knowledge of the investment decisions made by the portfolio managers
managing other portions of such Purchaser’s assets, the covenant set forth above
shall only apply with respect to the portion of assets managed by the portfolio
manager that made the investment decision to purchase the Securities covered by
this Agreement.
4.14
Capital
Changes
. Until the 6 month anniversary of the Closing Date,
the Company shall not undertake a reverse or forward stock split or
reclassification of the Common Shares without the prior written consent of the
Purchasers holding a majority of the Common Shares included in the Units issued
pursuant to this Agreement held, in the aggregate, by the Purchasers at such
time.
ARTICLE
V.
MISCELLANEOUS
5.1
Currency
. All
references to currency or dollars in this Agreement or any other Transaction
Documents are references to the lawful currency of the United
States.
5.2
Termination
.
This Agreement may be terminated by any Purchaser, as to such Purchaser’s
obligations hereunder only and without any effect whatsoever on the obligations
between the Company and the other Purchasers, by written notice to the Company
and the Placement Agent, if the Closing has not been consummated on or before
December 23, 2009
;
provided
,
however
, that no such
termination will affect the right of any party to sue for any breach by the
other party (or parties).
5.3
Fees and
Expenses
. Except as expressly set forth in the Transaction
Documents to the contrary, each party shall pay the fees and expenses of its
advisers, counsel, accountants and other experts, if any, and all other expenses
incurred by such party incident to the negotiation, preparation, execution,
delivery and performance of this Agreement. The Company shall pay all
Transfer Agent fees, stamp taxes and other taxes and duties levied in connection
with the delivery of any Securities to the Purchasers.
5.4
Entire
Agreement
. The Transaction Documents, together with the
exhibits and schedules thereto, the Prospectus and the Prospectus Supplement,
contain the entire understanding of the parties with respect to the subject
matter hereof and supersede all prior agreements and understandings, oral or
written, with respect to such matters, which the parties acknowledge have been
merged into such documents, exhibits and schedules.
5.5
Notices
. Any
and all notices or other communications or deliveries required or permitted to
be provided hereunder shall be in writing and shall be deemed given and
effective on the earliest of: (a) the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile number set forth on
the signature pages attached hereto prior to 5:30 p.m. (New York City time) on a
Trading Day, (b) the next Trading Day after the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile number set
forth on the signature pages attached hereto on a day that is not a Trading Day
or later than 5:30 p.m. (New York City time) on any Trading Day, (c) the second
(2
nd
)
Trading Day following the date of mailing, if sent by U.S. nationally recognized
overnight courier service or (d) upon actual receipt by the party to whom such
notice is required to be given. The address for such notices and
communications shall be as set forth on the signature pages attached
hereto.
5.6
Amendments;
Waivers
. No provision of this Agreement may be waived,
modified, supplemented or amended except in a written instrument signed, in the
case of an amendment, by the Company and the Purchasers with at least 67% of the
Subscription Amounts at Closing or, in the case of a waiver, by the party
against whom enforcement of any such waived provision is sought. No
waiver of any default with respect to any provision, condition or requirement of
this Agreement shall be deemed to be a continuing waiver in the future or a
waiver of any subsequent default or a waiver of any other provision, condition
or requirement hereof, nor shall any delay or omission of any party to exercise
any right hereunder in any manner impair the exercise of any such
right.
5.7
Headings
. The
headings herein are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the provisions
hereof.
5.8
Successors and
Assigns
. This Agreement shall be binding upon and inure to the
benefit of the parties and their successors and permitted
assigns. The Company may not assign this Agreement or any rights or
obligations hereunder without the prior written consent of each Purchaser (other
than by merger). Any Purchaser may, subject to the terms of this
Agreement, assign any or all of its rights under this Agreement to any Person to
whom such Purchaser assigns or transfers any Securities, provided that such
transferee agrees in writing to be bound, with respect to the transferred
Securities, by the provisions of the Transaction Documents that apply to the
“Purchasers.”
5.9
No Third-Party
Beneficiaries
. This Agreement is intended for the benefit of
the parties hereto and their respective successors and permitted assigns and is
not for the benefit of, nor may any provision hereof be enforced by, any other
Person, except as otherwise set forth in Section 4.7.
5.10
Governing
Law
. All questions concerning the construction, validity,
enforcement and interpretation of the Transaction Documents shall be governed by
and construed and enforced in accordance with the internal laws of the State of
New York, without regard to the principles of conflicts of law
thereof. Each party agrees that all legal proceedings concerning the
interpretations, enforcement and defense of the transactions contemplated by
this Agreement and any other Transaction Documents (whether brought against a
party hereto or its respective affiliates, directors, officers, shareholders,
employees or agents) shall be commenced exclusively in the state and federal
courts sitting in the City of New York. Each party hereby irrevocably submits to
the exclusive jurisdiction of the state and federal courts sitting in the City
of New York, borough of Manhattan for the adjudication of any dispute hereunder
or in connection herewith or with any transaction contemplated hereby or
discussed herein (including with respect to the enforcement of any of the
Transaction Documents), and hereby irrevocably waives, and agrees not to assert
in any suit, action or proceeding, any claim that it is not personally subject
to the jurisdiction of any such court, that such suit, action or proceeding is
improper or is an inconvenient venue for such proceeding. Each party
hereby irrevocably waives personal service of process and consents to process
being served in any such suit, action or proceeding by mailing a copy thereof
via registered or certified mail or overnight delivery (with evidence of
delivery) to such party at the address in effect for notices to it under this
Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall
be deemed to limit in any way any right to serve process in any other manner
permitted by law. If either party shall commence an action or
proceeding to enforce any provisions of the Transaction Documents, then, in
addition to the obligations of the Company under Section 4.7, the prevailing
party in such action or proceeding shall be reimbursed by the other party for
its reasonable attorneys’ fees and other costs and expenses incurred with the
investigation, preparation and prosecution of such action or
proceeding.
5.11
Survival
. The
representations and warranties contained herein shall survive the Closing and
the delivery of the Securities.
5.12
Execution
. This
Agreement may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the
other party, it being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by
facsimile transmission or by e-mail delivery of a “.pdf” format data file, such
signature shall create a valid and binding obligation of the party executing (or
on whose behalf such signature is executed) with the same force and effect as if
such facsimile or “.pdf” signature page were an original thereof.
5.13
Severability
. If
any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction to be invalid, illegal, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions set forth
herein shall remain in full force and effect and shall in no way be affected,
impaired or invalidated, and the parties hereto shall use their commercially
reasonable efforts to find and employ an alternative means to achieve the same
or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
5.14
Replacement of
Securities
. If any certificate or instrument evidencing any
Securities is mutilated, lost, stolen or destroyed, the Company shall issue or
cause to be issued in exchange and substitution for and upon cancellation
thereof (in the case of mutilation), or in lieu of and substitution therefor, a
new certificate or instrument, but only upon receipt of evidence reasonably
satisfactory to the Company of such loss, theft or destruction. The
applicant for a new certificate or instrument under such circumstances shall
also pay any reasonable third-party costs (including customary indemnity)
associated with the issuance of such replacement Securities.
5.15
Remedies
. In
addition to being entitled to exercise all rights provided herein or granted by
law, including recovery of damages, each of the Purchasers and the Company will
be entitled to specific performance under the Transaction
Documents. The parties agree that monetary damages may not be
adequate compensation for any loss incurred by reason of any breach of
obligations contained in the Transaction Documents and hereby agree to waive and
not to assert in any action for specific performance of any such obligation the
defense that a remedy at law would be adequate.
5.16
Payment Set
Aside
. To the extent that the Company makes a payment or
payments to any Purchaser pursuant to any Transaction Document or a Purchaser
enforces or exercises its rights thereunder, and such payment or payments or the
proceeds of such enforcement or exercise or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside, recovered
from, disgorged by or are required to be refunded, repaid or otherwise restored
to the Company, a trustee, receiver or any other person under any law
(including, without limitation, any bankruptcy law, state or federal law, common
law or equitable cause of action), then to the extent of any such restoration
the obligation or part thereof originally intended to be satisfied shall be
revived and continued in full force and effect as if such payment had not been
made or such enforcement or setoff had not occurred.
5.17
Independent Nature of
Purchasers’ Obligations and Rights
. The obligations of each
Purchaser under any Transaction Document are several and not joint with the
obligations of any other Purchaser, and no Purchaser shall be responsible in any
way for the performance or non-performance of the obligations of any other
Purchaser under any Transaction Document. Nothing contained herein or
in any other Transaction Document, and no action taken by any Purchaser pursuant
thereto, shall be deemed to constitute the Purchasers as a partnership, an
association, a joint venture or any other kind of entity, or create a
presumption that the Purchasers are in any way acting in concert or as a group
with respect to such obligations or the transactions contemplated by the
Transaction Documents. Each Purchaser shall be entitled to
independently protect and enforce its rights including, without limitation, the
rights arising out of this Agreement or out of the other Transaction Documents,
and it shall not be necessary for any other Purchaser to be joined as an
additional party in any proceeding for such purpose. Each Purchaser
has been represented by its own separate legal counsel in their review and
negotiation of the Transaction Documents. For reasons of
administrative convenience only, each Purchaser and its respective counsel have
chosen to communicate with the Company through WS. WS does not
represent any of the Purchasers and only represents Rodman & Renshaw
LLC. The Company has elected to provide all Purchasers with the same
terms and Transaction Documents for the convenience of the Company and not
because it was required or requested to do so by any of the
Purchasers.
5.18
Liquidated
Damages
. The Company’s obligations to pay any partial
liquidated damages or other amounts owing under the Transaction Documents is a
continuing obligation of the Company and shall not terminate until all unpaid
partial liquidated damages and other amounts have been paid notwithstanding the
fact that the instrument or security pursuant to which such partial liquidated
damages or other amounts are due and payable shall have been
canceled.
5.19
Saturdays, Sundays,
Holidays, etc.
If the last or appointed day for the
taking of any action or the expiration of any right required or granted herein
shall not be a Business Day, then such action may be taken or such right may be
exercised on the next succeeding Business Day.
5.20
Construction
. The
parties agree that each of them and/or their respective counsel has reviewed and
had an opportunity to revise the Transaction Documents and, therefore, the
normal rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation
of the Transaction Documents or any amendments hereto. In addition, each and
every reference to share prices and Common Shares in any Transaction Document
shall be subject to adjustment for reverse and forward stock splits, stock
dividends, stock combinations and other similar transactions of the Common
Shares that occur after the date of this Agreement.
5.21
WAIVER OF
JURY TRIAL
.
IN ANY
ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY
OTHER PARTY, THE PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST
EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY,
IRREVOCABLY AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.
(Signature
Pages Follow)
IN WITNESS WHEREOF, the parties hereto
have caused this Securities Purchase Agreement to be duly executed by their
respective authorized signatories as of the date first indicated
above.
DEJOUR
ENTERPRISES LTD.
|
Address
for Notice:
|
|
|
|
|
By:
|
|
Fax:
|
|
|
Name:
|
|
|
|
Title:
|
|
|
With a
copy to (which shall not constitute notice):
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGE FOR PURCHASER FOLLOWS]
[PURCHASER
SIGNATURE PAGES TO DEJ SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
Name of
Purchaser:
_____________________________________________________________________________
Signature of Authorized Signatory of
Purchaser
:
______________________________________________________
Name of
Authorized Signatory:
____________________________________________________________________
Title of
Authorized Signatory:
_____________________________________________________________________
Email
Address of Authorized
Signatory:______________________________________________________________
Facsimile
Number of Authorized Signatory:
_______________________________________________________________
Address
for Notice of Purchaser:
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $_________________
Units
(each Unit consisting of one Common Share and ● Warrant):
_________________
Warrant
Shares: __________________
EIN
Number:
[PROVIDE
THIS UNDER SEPARATE COVER]
[SIGNATURE
PAGES CONTINUE]
EXHIBIT
A
UNLESS
PERMITTED UNDER CANADIAN SECURITIES LEGISLATION, THE HOLDER OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE MUST NOT TRADE SUCH SECURITIES BEFORE APRIL
, 2010 IN CANADA OR TO OR FOR THE BENEFIT OF A RESIDENT OF CANADA (See
“
Resale
Restrictions
” herein).
COMMON
SHARE PURCHASE WARRANT
DEJOUR
ENTERPRISES LTD.
Warrant
Number:
|
Issue
Date: December
, 2009
|
Warrant
Shares:
|
Initial
Exercise Date: June ___,
2010
|
THIS
COMMON SHARE PURCHASE WARRANT (the “
Warrant
”) certifies
that, for value received, _____________ (the “
Holder
”) is entitled,
upon the terms and subject to the limitations on exercise and the conditions
hereinafter set forth, at any time on or after June ___, 2010 (the “
Initial Exercise
Date
”) and on or prior to the close of business on June ___, 2015 (the
“
Termination
Date
”) but not thereafter, to subscribe for and purchase from Dejour
Enterprises Ltd., a corporation incorporated under the laws of British Columbia
(the “
Company
”), up to
_____ common shares (the “
Warrant Shares
”) in
the capital of the Company. The purchase price of one Common Share
under this Warrant shall be equal to the Exercise Price, as defined in Section
2(b).
Section
1
.
Definitions
. Capitalized
terms used and not otherwise defined herein shall have the meanings set forth in
that certain Securities Purchase Agreement (the “
Purchase Agreement
”),
dated December 16, 2009, among the Company and the purchasers signatory
thereto.
Section
2
.
Exercise
.
a)
Exercise of
Warrant
. Exercise of the purchase rights represented by this
Warrant may be made, in whole or in part, at any time or times on or after the
Initial Exercise Date and on or before the Termination Date by delivery to the
Company (or such other office or agency of the Company as it may designate by
notice in writing to the registered Holder at the address of the Holder
appearing on the books of the Company) of a duly executed facsimile copy of the
Notice of Exercise Form annexed hereto; and, within three Trading Days of the
date said Notice of Exercise is delivered to the Company, the Company shall have
received payment of the aggregate Exercise Price of the shares thereby purchased
by wire transfer or cashier’s check drawn on a United States bank or, if
available, pursuant to the cashless exercise procedure specified in Section 2(c)
below. Notwithstanding anything herein to the contrary, the Holder
shall not be required to physically surrender this Warrant to the Company until
the Holder has purchased all of the Warrant Shares available hereunder and the
Warrant has been exercised in full, in which case, the Holder shall surrender
this Warrant to the Company for cancellation within three Trading Days of the
date the final Notice of Exercise is delivered to the
Company. Partial exercises of this Warrant resulting in purchases of
a portion of the total number of Warrant Shares available hereunder shall have
the effect of lowering the outstanding number of Warrant Shares purchasable
hereunder in an amount equal to the applicable number of Warrant Shares
purchased. The Holder and the Company shall maintain records showing
the number of Warrant Shares purchased and the date of such
purchases. The Company shall deliver any objection to any Notice of
Exercise Form within 1 Business Day of receipt of such notice.
The Holder and any assignee, by
acceptance of this Warrant, acknowledge and agree that, by reason of the
provisions of this paragraph, following the purchase of a portion of the Warrant
Shares hereunder, the number of Warrant Shares available for purchase hereunder
at any given time may be less than the amount stated on the face
hereof.
b)
Exercise
Price
. The exercise price per Common Share under this Warrant
shall be
US$0.40
,
subject to adjustment hereunder (the “
Exercise
Price
”).
c)
Cashless
Exercise
. If at the time of exercise hereof (i) there is no
effective registration statement registering the Warrant Shares, or the
prospectus contained therein is not available for the issuance of the Warrant
Shares to the Holder, and (ii) all of the Warrant Shares are not then registered
for resale by Holder into the market at market prices from time to time on an
effective registration statement for use on a continuous basis (or the
prospectus contained therein is not available for use), then this Warrant may
also be exercised, in whole or in part, at such time by means of a “cashless
exercise” in which the Holder shall be entitled to receive a certificate for the
number of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)]
by (A), where:
|
A =
|
the
VWAP on the Trading Day immediately preceding the date on which Holder
elects to exercise this Warrant by means of a “cashless exercise,” as set
forth in the applicable Notice of
Exercise;
|
|
B =
|
the
Exercise Price of this Warrant, as adjusted hereunder;
and
|
|
X =
|
the
number of Warrant Shares that would be issuable upon exercise of this
Warrant in accordance with the terms of this Warrant if such exercise were
by means of a cash exercise rather than a cashless
exercise.
|
“
VWAP
” means, for any
date, the price determined by the first of the following clauses that applies:
(a) if the Common Shares are then listed on a Trading Market in the United
States (other than the OTC Bulletin Board), the daily volume weighted average
price of the Common Shares for such date (or the nearest preceding date) on such
Trading Market as reported by Bloomberg L.P. (as defined below) (based on a
Trading Day from 9:30 a.m. (prevailing Eastern time) to 4:02 p.m. (prevailing
Eastern time); (b) if the Common Shares are not then listed on a Trading
Market in the United States (other than the OTC Bulletin Board), the daily
volume weighted average price of the Common Shares fore the period of five
Trading Days ending on such date (or the nearest preceding date) on the Toronto
Stock Exchange (the “
TSX
”) as reported in
the TSX’s Historical Data Access database (based on a Trading Day from 9:30 a.m.
(prevailing Eastern time) to 4:02 p.m. (prevailing Eastern time), with the
values used in VWAP being calculated in Canadian dollars and converted into U.S.
dollars based on the Bank of Canada’s nominal noon exchange rate for Canadian
dollars to U.S. dollars on such date; (c) if the Common Shares are not then
listed on a Trading Market in the United States (other than the OTC Bulletin
Board) or the TSX, the volume weighted average price of the Common Shares for
such date (or the nearest preceding date) on the OTC Bulletin Board; (d) if the
Common Shares are not then listed or quoted for trading on any Trading Market
and if prices for the Common Shares are then reported in the “Pink Sheets”
published by Pink OTC Markets, Inc. (or a similar organization or agency
succeeding to its functions of reporting prices), the most recent bid price per
share of the Common Shares so reported; or (d) in all other cases, the fair
market value of the Common Shares as determined by an independent appraiser
selected in good faith by the Holders of a majority in interest of the
Securities then outstanding and reasonably acceptable to the Company, the fees
and expenses of which shall be paid by the Company.
“
Bloomberg L.P.
” means
Bloomberg L.P. or, if Bloomberg L.P. no longer reports the applicable pricing or
other information, such other data as may in the future replace Bloomberg L.P.
as the primary industry source of stock market data in the United
States.
d)
Mechanics of
Exercise
.
i.
Delivery of Certificates
Upon Exercise
. Certificates for shares purchased hereunder
shall be transmitted by the Transfer Agent to the Holder by crediting the
account of the Holder’s prime broker with the Depository Trust Company through
its Deposit Withdrawal Agent Commission (“
DWAC
”) system if the
Company is then a participant in such system and either (A) there is an
effective Registration Statement permitting the issuance of the Warrant Shares
to or resale of the Warrant Shares by the Holder or (B) this Warrant is being
exercised via cashless exercise, and otherwise by physical delivery to the
address specified by the Holder in the Notice of Exercise by the date that is
three Trading Days after the latest of (A) the delivery to the Company of the
fully completed Notice of Exercise Form and receipt of the DWAC request from the
Holder’s prime broker (if applicable), (B) surrender of this Warrant (if
required) and (C) payment of the aggregate Exercise Price as set forth above
(including by cashless exercise, if permitted) (such date, the “
Warrant Share Delivery
Date
”). This Warrant shall be deemed to have been exercised on
the first date on which all of the foregoing have been delivered to the
Company. The Warrant Shares shall be deemed to have been issued, and
the Holder or any other person so designated to be named therein shall be deemed
to have become a holder of record of such shares for all purposes, as of the
date the Warrant has been exercised, with payment to the Company of the
aggregate Exercise Price (or by cashless exercise, if permitted) and all taxes
required to be paid by the Holder, if any, pursuant to Section 2(d)(vi) prior to
the issuance of such shares, having been paid. The Holder agrees that any
exercise of Warrants shall have not less than a minimum aggregate value of
US$4,000, or such lesser amount then outstanding, unless otherwise agreed by the
Company.
ii.
Delivery of New Warrants
Upon Exercise
. If this Warrant shall have been exercised in
part, the Company shall, at the request of the Holder and upon surrender of this
Warrant, at the time of delivery of the certificate or certificates representing
the Warrant Shares to be issued in connection with such exercise, deliver to the
Holder a new Warrant evidencing the rights of Holder to purchase the balance of
unpurchased Warrant Shares called for by this Warrant, which new Warrant shall
in all other respects be identical to this Warrant.
iii.
Rescission
Rights
. If the Company fails to cause the Transfer Agent to
transmit to the Holder a certificate or the certificates representing the
Warrant Shares pursuant to Section 2(d)(i) by the Warrant Share Delivery Date,
then, the Holder will have the right to rescind such exercise.
iv.
Compensation for Buy-In on
Failure to Timely Deliver Certificates Upon Exercise
. In
addition to any other rights available to the Holder, if the Company fails to
cause the Transfer Agent to transmit to the Holder a certificate or the
certificates representing the Warrant Shares pursuant to an exercise of this
Warrant on or before the applicable Warrant Share Delivery Date, and if after
such date the Holder is required by its broker to purchase (in an open market
transaction or otherwise) or the Holder’s brokerage firm otherwise purchases,
Common Shares to deliver in satisfaction of a sale by the Holder of the Warrant
Shares which the Holder anticipated receiving upon such exercise (a “
Buy-In
”), then the
Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the
Holder’s total purchase price (including brokerage commissions, if any) for the
Common Shares so purchased exceeds (y) the amount obtained by multiplying (1)
the number of Warrant Shares that the Company was required to deliver to the
Holder in connection with such exercise
times
(2) the price at which
the sell order giving rise to such purchase obligation was executed, and (B) at
the option of the Holder, either reinstate the portion of the Warrant and
equivalent number of Warrant Shares for which such exercise was not honored (in
which case such exercise shall be deemed rescinded) or deliver to the Holder the
number of Common Shares that would have been issued had the Company timely
complied with its exercise and delivery obligations hereunder. For
example, if the Holder purchases Common Shares having a total purchase price of
US$11,000 to cover a Buy-In with respect to an attempted exercise of Common
Shares with an aggregate sale price giving rise to such purchase obligation of
US$10,000, under clause (A) of the immediately preceding sentence the Company
shall be required to pay the Holder US$1,000. The Holder shall provide the
Company written notice indicating the amounts payable to the Holder in respect
of the Buy-In and, upon request of the Company, evidence of the amount of such
loss. Nothing herein shall limit a Holder’s right to pursue any other
remedies available to it hereunder, at law or in equity including, without
limitation, a decree of specific performance and/or injunctive relief with
respect to the Company’s failure to timely deliver certificates representing
Common Shares upon exercise of the Warrant as required pursuant to the terms
hereof.
v.
No Fractional Shares or
Scrip
. No fractional shares or scrip representing fractional
shares shall be issued upon the exercise of this Warrant. As to any
fraction of a share which the Holder would otherwise be entitled to purchase
upon such exercise, the Company shall pay a cash adjustment in respect of such
final fraction in an amount equal to such fraction multiplied by the Exercise
Price.
vi.
Charges, Taxes and
Expenses
. Issuance of certificates for Warrant Shares shall be
made without charge to the Holder for any issue or transfer tax or other
incidental expense in respect of the issuance of such certificate, all of which
taxes and expenses shall be paid by the Company, and such certificates shall be
issued in the name of the Holder or in such name or names as may be directed by
the Holder;
provided
,
however
, that in the
event certificates for Warrant Shares are to be issued in a name other than the
name of the Holder, this Warrant, when surrendered for exercise, shall be
accompanied by the Assignment Form attached hereto duly executed by the Holder
and the Company may require, as a condition thereto, the payment of a sum
sufficient to reimburse it for any transfer tax incidental thereto.
vii.
Closing of
Books
. The Company will not close its shareholder books or
records in any manner which prevents the timely exercise of this Warrant,
pursuant to the terms hereof.
e)
Holder’s Exercise
Limitations
. The Company shall not effect any exercise of this
Warrant, and a Holder shall not have the right to exercise any portion of this
Warrant, pursuant to Section 2 or otherwise, to the extent that, after giving
effect to such issuance after exercise as set forth on the applicable Notice of
Exercise, the Holder (together with the Holder’s Affiliates, and any other
Persons acting as a group together with the Holder or any of the Holder’s
Affiliates) would beneficially own in excess of the Beneficial Ownership
Limitation (as defined below). For purposes of the foregoing sentence, the
number of Common Shares beneficially owned by the Holder and its Affiliates
shall include the number of Common Shares issuable upon exercise of this Warrant
with respect to which such determination is being made, but shall exclude the
number of Common Shares which would be issuable upon (i) exercise of the
remaining, non-exercised portion of this Warrant beneficially owned by the
Holder or any of its Affiliates and (ii) exercise or conversion of the
unexercised or nonconverted portion of any other securities of the Company
(including, without limitation, any other Common Share Equivalents)
subject to a limitation on conversion or exercise analogous to the limitation
contained herein beneficially owned by the Holder or any of its
Affiliates. Except as set forth in the preceding sentence, for purposes of
this Section 2(e), beneficial ownership shall be calculated in accordance with
Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder, it being acknowledged by the Holder that the Company is not
representing to the Holder that such calculation is in compliance with Section
13(d) of the Exchange Act and the Holder is solely responsible for any schedules
required to be filed in accordance therewith. To the extent
that the limitation contained in this Section 2(e) applies, the determination of
whether this Warrant is exercisable (in relation to other securities owned by
the Holder together with any Affiliates) and of which portion of this Warrant is
exercisable shall be in the sole discretion of the Holder, and the submission of
a Notice of Exercise shall be deemed to be the Holder’s determination of whether
this Warrant is exercisable (in relation to other securities owned by the Holder
together with any Affiliates) and of which portion of this Warrant is
exercisable, in each case subject to the Beneficial Ownership Limitation, and
the Company shall have no obligation to verify or confirm the accuracy of such
determination. In addition, a determination as to any group
status as contemplated above shall be determined in accordance with Section
13(d) of the Exchange Act and the rules and regulations promulgated
thereunder. For purposes of this Section 2(e), in determining the
number of outstanding Common Shares, a Holder may rely on the number of
outstanding Common Shares as reflected in (A) the Company’s most recent periodic
or annual report filed with the Commission, as the case may be, (B) a more
recent public announcement by the Company or (C) a more recent written notice by
the Company or the Transfer Agent setting forth the number of Common Shares
outstanding. Upon the written or oral request of a Holder, the Company
shall within two Trading Days confirm orally and in writing to the Holder the
number of Common Shares then outstanding. In any case, the number of
outstanding Common Shares shall be determined after giving effect to the
conversion or exercise of securities of the Company, including this Warrant, by
the Holder or its Affiliates since the date as of which such number of
outstanding Common Shares was reported. The “
Beneficial Ownership
Limitation
” shall be 4.99% of the number of Common Shares outstanding
immediately after giving effect to the issuance of Common Shares issuable upon
exercise of this Warrant. The Holder, upon not less than 61 days’
prior notice to the Company, may increase or decrease the Beneficial Ownership
Limitation provisions of this Section 2(e), provided that the Beneficial
Ownership Limitation in no event exceeds 9.99% of the number of Common Shares
outstanding immediately after giving effect to the issuance of Common Shares
upon exercise of this Warrant held by the Holder and the provisions of this
Section 2(e) shall continue to apply. Any such increase or decrease
will not be effective until the 61
st
day
after such notice is delivered to the Company. The provisions of this
paragraph shall be construed and implemented in a manner otherwise than in
strict conformity with the terms of this Section 2(e) to correct this paragraph
(or any portion hereof) which may be defective or inconsistent with the intended
Beneficial Ownership Limitation herein contained or to make changes or
supplements necessary or desirable to properly give effect to such limitation.
The limitations contained in this paragraph shall apply to a successor holder of
this Warrant.
f)
Call
Provision
. Subject to the provisions of Section 2(e) and this
Section 2(f), if, after the Effective Date, (i) the VWAP for each of
20 consecutive Trading Days
(the “
Measurement
Period
,” which 20 consecutive Trading Day period shall not have commenced
until after the Effective Date) exceeds
$1.00
(subject to adjustment
for forward and reverse stock splits, recapitalizations, stock dividends and the
like after the Initial Exercise Date), (ii) the average daily volume for such
Measurement Period exceeds
$100,000
per Trading Day
(subject to adjustment for forward and reverse stock splits, recapitalizations,
stock dividends and the like after the Initial Exercise Date) and (iii) the
Holder is not in possession of any information that constitutes, or might
constitute, material non-public information which was provided by the Company,
then the Company may exercise its right to, within one Trading Day of the end of
such Measurement Period, call for cancellation of all or any portion of this
Warrant for which a Notice of Exercise has not yet been delivered (such right, a
“
Call
”) for
consideration equal to $0.01 per Share. To exercise this right, the
Company must deliver to the Holder an irrevocable written notice (a “
Call Notice
”),
indicating therein the portion of unexercised portion of this Warrant to which
such notice applies. If the conditions set forth below for such Call
are satisfied from the period from the date of the Call Notice through and
including the Call Date (as defined below), then any portion of this Warrant
subject to such Call Notice for which a Notice of Exercise shall not have been
received by the Call Date will be cancelled at 6:30 p.m. (New York City time) on
the thirtieth Trading Day after the date the Call Notice is received by the
Holder (such date and time, the “
Call
Date
”). Any unexercised portion of this Warrant to which the
Call Notice does not pertain will be unaffected by such Call
Notice. In furtherance thereof, the Company covenants and agrees that
it will honor all Notices of Exercise with respect to Warrant Shares subject to
a Call Notice that are tendered through 6:30 p.m. (New York City time) on the
Call Date. The parties agree that any Notice of Exercise delivered
following a Call Notice which calls less than all the Warrants shall first
reduce to zero the number of Warrant Shares subject to such Call Notice prior to
reducing the remaining Warrant Shares available for purchase under this
Warrant. For example, if (A) this Warrant then permits the Holder to
acquire 100 Warrant Shares, (B) a Call Notice pertains to 75 Warrant Shares, and
(C) prior to 6:30 p.m. (New York City time) on the Call Date the Holder tenders
a Notice of Exercise in respect of 50 Warrant Shares, then (x) on the Call Date
the right under this Warrant to acquire 25 Warrant Shares will be automatically
cancelled, (y) the Company, in the time and manner required under this Warrant,
will have issued and delivered to the Holder 50 Warrant Shares in respect of the
exercises following receipt of the Call Notice, and (z) the Holder may, until
the Termination Date, exercise this Warrant for 25 Warrant Shares (subject to
adjustment as herein provided and subject to subsequent Call
Notices). Subject again to the provisions of this Section 2(f), the
Company may deliver subsequent Call Notices for any portion of this Warrant for
which the Holder shall not have delivered a Notice of
Exercise. Notwithstanding anything to the contrary set forth in this
Warrant, the Company may not deliver a Call Notice or require the cancellation
of this Warrant (and any such Call Notice shall be void), unless, from the
beginning of the Measurement Period through the Call Date, (1) the Company shall
have honored in accordance with the terms of this Warrant all Notices of
Exercise delivered by 6:30 p.m. (New York City time) on the Call Date, and (2)
the Registration Statement shall be effective as to the sale of all Warrant
Shares, and (3) the Common Stock shall be listed or quoted for trading on the
Trading Market, and (4) there is a sufficient number of authorized shares of
Common Stock for issuance of all Securities under the Transaction Documents, and
(5) the issuance of the Warrant Shares shall not cause a breach of any provision
of 2(e) herein. The Company’s right to call the Warrants under this
Section 2(f) shall be exercised ratably among the Holders based on each Holder’s
initial purchase of Warrants.
Section
3
.
Certain
Adjustments
.
a)
Stock Dividends and
Splits
. If the Company, at any time while this Warrant is outstanding:
(i) pays a stock dividend or otherwise makes a distribution or distributions on
the Common Shares or any other equity or equity equivalent securities payable in
Common Shares (which, for avoidance of doubt, shall not include any Common
Shares issued by the Company upon exercise of this Warrant), (ii) subdivides
outstanding Common Shares into a larger number of shares, (iii) combines
(including by way of reverse stock split) outstanding Common Shares into a
smaller number of shares, or (iv) issues by reclassification of the Common
Shares any shares in the capital of the Company, then in each case the Exercise
Price shall be multiplied by a fraction of which the numerator shall be the
number of Common Shares outstanding immediately before such event and of which
the denominator shall be the number of Common Shares outstanding immediately
after such event, and the number of shares issuable upon exercise of this
Warrant shall be proportionately adjusted such that the aggregate Exercise Price
of this Warrant shall remain unchanged. Any adjustment made pursuant
to this Section 3(a) shall become effective immediately after the record date
for the determination of shareholders entitled to receive such dividend or
distribution and shall become effective immediately after the effective date in
the case of a subdivision, combination or re-classification.
b) [RESERVED]
c)
Subsequent Rights
Offerings
. If the Company, at any time while this Warrant is
outstanding, shall issue rights, options or warrants to all holders of Common
Shares (and not to the Holder) entitling them to subscribe for or purchase
Common Shares at a price per share less than the VWAP on the record date
mentioned below, then the Exercise Price shall be multiplied by a fraction, of
which the denominator shall be the number of Common Shares outstanding on the
date of issuance of such rights, options or warrants plus the number of
additional Common Shares offered for subscription or purchase, and of which the
numerator shall be the number of Common Shares outstanding on the date of
issuance of such rights, options or warrants plus the number of shares which the
aggregate offering price of the total number of shares so offered (assuming
receipt by the Company in full of all consideration payable upon exercise of
such rights, options or warrants) would purchase at such VWAP. Such
adjustment shall be made whenever such rights, options or warrants are issued,
and shall become effective immediately after the record date for the
determination of shareholders entitled to receive such rights, options or
warrants.
d)
Pro Rata
Distributions
. If the Company, at any time while this Warrant
is outstanding, shall distribute to all holders of Common Shares (and not to the
Holder) evidences of its indebtedness or assets (including cash and cash
dividends) or rights or warrants to subscribe for or purchase any security other
than Common Shares, then in each such case the Exercise Price shall be adjusted
by multiplying the Exercise Price in effect immediately prior to the record date
fixed for determination of shareholders entitled to receive such distribution by
a fraction of which the denominator shall be the VWAP determined as of the
record date mentioned above, and of which the numerator shall be such VWAP on
such record date less the then per share fair market value at such record date
of the portion of such assets or evidence of indebtedness so distributed
applicable to one outstanding Common Share determined by the Board of Directors
in good faith. In either case the adjustments shall be described in a
statement provided to the Holder of the portion of assets or evidences of
indebtedness so distributed or such subscription rights applicable to one Common
Share. Such adjustment shall be made whenever any such distribution
is made and shall become effective immediately after the record date mentioned
above.
e)
Fundamental
Transaction
. If, at any time while this Warrant is outstanding, (i) the
Company, directly or indirectly, in one or more related transactions effects any
merger or consolidation of the Company with or into another Person, (ii) the
Company, directly or indirectly, effects any sale, lease, license, assignment,
transfer, conveyance or other disposition of all or substantially all of its
assets in one or a series of related transactions, (iii) any, direct or
indirect, purchase offer, tender offer or exchange offer (whether by the Company
or another Person) is completed pursuant to which holders of Common Shares are
permitted to sell, tender or exchange their shares for other securities, cash or
property and has been accepted by the holders of 50% or more of the outstanding
Common Shares, (iv) the Company, directly or indirectly, in one or more related
transactions effects any reclassification, reorganization or recapitalization of
the Common Shares or any compulsory share exchange pursuant to which the Common
Shares are effectively converted into or exchanged for other securities, cash or
property, (v) the Company, directly or indirectly, in one or more related
transactions consummates a share purchase agreement or other business
combination (including, without limitation, a reorganization, recapitalization,
spin-off or scheme of arrangement) with another Person whereby such other Person
acquires more than 50% of the outstanding Common Shares (not including any
Common Shares held by the other Person or other Persons making or party to, or
associated or affiliated with the other Persons making or party to, such share
purchase agreement or other business combination) (each a “
Fundamental
Transaction
”), then, upon any subsequent exercise of this Warrant, the
Holder shall have the right to receive, for each Warrant Share that would have
been issuable upon such exercise immediately prior to the occurrence of such
Fundamental Transaction, at the option of the Holder (without regard to any
limitation in Section 2(e) on the exercise of this Warrant), the number of
common shares or shares of common stock of the successor or acquiring
corporation or of the Company, if it is the surviving corporation, and any
additional consideration (the “
Alternate
Consideration
”) receivable as a result of such Fundamental Transaction by
a holder of the number of Common Shares for which this Warrant is exercisable
immediately prior to such Fundamental Transaction (without regard to any
limitation in Section 2(e) on the exercise of this Warrant). For
purposes of any such exercise, the determination of the Exercise Price shall be
appropriately adjusted to apply to such Alternate Consideration based on the
amount of Alternate Consideration issuable in respect of one Common Share in
such Fundamental Transaction, and the Company shall apportion the Exercise Price
among the Alternate Consideration in a reasonable manner reflecting the relative
value of any different components of the Alternate Consideration. If
holders of Common Shares are given any choice as to the securities, cash or
property to be received in a Fundamental Transaction, then the Holder shall be
given the same choice as to the Alternate Consideration it receives upon any
exercise of this Warrant following such Fundamental
Transaction. Notwithstanding anything to the contrary, in the event
of a Fundamental Transaction that is (1) an all cash transaction, (2) a “Rule
13e-3 transaction” as defined in Rule 13e-3 under the Exchange Act, or (3) a
Fundamental Transaction involving a person or entity not traded on a recognized
securities exchange, the Company or any Successor Entity (as defined below)
shall, at the Holder’s option, exercisable at any time concurrently with, or
within 30 days after, the consummation of the Fundamental Transaction, purchase
this Warrant from the Holder by paying to the Holder an amount of cash equal to
the Black Scholes Value of the remaining unexercised portion of this Warrant on
the date of the consummation of such Fundamental Transaction. “
Black Scholes Value
”
means the value of this Warrant based on the Black and Scholes Option Pricing
Model obtained from the “OV” function on Bloomberg, L.P. (“
Bloomberg
”)
determined as of the day of consummation of the applicable Fundamental
Transaction for pricing purposes and reflecting (A) a risk-free interest rate
corresponding to the U.S. Treasury rate for a period equal to the time between
the date of the public announcement of the applicable Fundamental Transaction
and the Termination Date, (B) an expected volatility equal to the greater of
100% and the 100 day volatility obtained from the HVT function on Bloomberg as
of the Trading Day immediately following the public announcement of the
applicable Fundamental Transaction, (C) the underlying price per share used in
such calculation shall be the sum of the price per share being offered in cash,
if any, plus the value of any non-cash consideration, if any, being offered in
such Fundamental Transaction and (D) a remaining option time equal to the time
between the date of the public announcement of the applicable Fundamental
Transaction and the Termination Date. The Company shall cause any
successor entity in a Fundamental Transaction in which the Company is not the
survivor (the “
Successor Entity
”) to
assume in writing all of the obligations of the Company under this Warrant and
the other Transaction Documents in accordance with the provisions of this
Section 3(e) pursuant to written agreements in form and substance reasonably
satisfactory to the Holder and approved by the Holder (without unreasonable
delay) prior to such Fundamental Transaction and shall, at the option of the
holder of this Warrant, deliver to the Holder in exchange for this Warrant a
security of the Successor Entity evidenced by a written instrument substantially
similar in form and substance to this Warrant which is exercisable for a
corresponding number of common shares or shares of capital stock of such
Successor Entity (or its parent entity) equivalent to the Common Shares
acquirable and receivable upon exercise of this Warrant (without regard to any
limitations on the exercise of this Warrant) prior to such Fundamental
Transaction, and with an exercise price which applies the exercise price
hereunder to such common shares or shares of capital stock (but taking into
account the relative value of the Common Shares pursuant to such Fundamental
Transaction and the value of such common shares or shares of capital stock, such
number of common shares or shares of capital stock and such exercise price being
for the purpose of protecting the economic value of this Warrant immediately
prior to the consummation of such Fundamental Transaction), and which is
reasonably satisfactory in form and substance to the Holder. Upon the occurrence
of any such Fundamental Transaction, the Successor Entity shall succeed to, and
be substituted for (so that from and after the date of such Fundamental
Transaction, the provisions of this Warrant and the other Transaction Documents
referring to the “Company” shall refer instead to the Successor Entity), and may
exercise every right and power of the Company and shall assume all of the
obligations of the Company under this Warrant and the other Transaction
Documents with the same effect as if such Successor Entity had been named as the
Company herein.
f)
Calculations
. All
calculations under this Section 3 shall be made to the nearest cent or the
nearest 1/100th of a share, as the case may be. For purposes of this Section 3,
the number of Common Shares deemed to be issued and outstanding as of a given
date shall be the sum of the number of Common Shares issued and
outstanding.
g)
Notice to
Holder
.
i.
Adjustment to Exercise
Price
. Whenever the Exercise Price is adjusted pursuant to any provision
of this Section 3, the Company shall promptly mail to the Holder a notice
setting forth the Exercise Price after such adjustment and setting forth a brief
statement of the facts requiring such adjustment.
ii.
Notice to Allow Exercise by
Holder
. If (A) the Company shall declare a dividend (or any other
distribution in whatever form) on the Common Shares, (B) the Company shall
declare a special nonrecurring cash dividend on or a redemption of the Common
Shares, (C) the Company shall authorize the granting to all holders of the
Common Shares rights or warrants to subscribe for or purchase any shares in the
capital of the Company or of any rights, (D) the approval of any shareholders of
the Company shall be required in connection with any reclassification of the
Common Shares, any consolidation or merger to which the Company is a party, any
sale or transfer of all or substantially all of the assets of the Company, or
any compulsory share exchange whereby the Common Shares are converted into other
securities, cash or property, or (E) the Company shall authorize the voluntary
or involuntary dissolution, liquidation or winding up of the affairs of the
Company, then, in each case, the Company shall cause to be mailed to the Holder
at its last address as it shall appear upon the Warrant Register of the Company,
at least 20 calendar days prior to the applicable record or effective date
hereinafter specified, a notice stating (x) the date on which a record is to be
taken for the purpose of such dividend, distribution, redemption, rights or
warrants, or if a record is not to be taken, the date as of which the holders of
the Common Shares of record to be entitled to such dividend, distributions,
redemption, rights or warrants are to be determined or (y) the date on which
such reclassification, consolidation, merger, sale, transfer or share exchange
is expected to become effective or close, and the date as of which it is
expected that holders of the Common Shares of record shall be entitled to
exchange their Common Shares for securities, cash or other property deliverable
upon such reclassification, consolidation, merger, sale, transfer or share
exchange; provided that the failure to mail such notice or any defect therein or
in the mailing thereof shall not affect the validity of the corporate action
required to be specified in such notice. To the extent that any
notice provided hereunder constitutes, or contains, material, non-public
information regarding the Company or any of the Subsidiaries, the Company shall
simultaneously file such notice with the Commission pursuant to a Report on Form
6-K. The Holder shall remain entitled to exercise this Warrant during
the period commencing on the date of such notice to the effective date of the
event triggering such notice except as may otherwise be expressly set forth
herein.
Section
4
.
Transfer of
Warrant
.
a)
Transferability
. Subject
to compliance with applicable securities laws (including the resale restrictions
described in Section 5(f)), this Warrant and all rights hereunder (including,
without limitation, any registration rights) are transferable, in whole or in
part, upon surrender of this Warrant at the principal office of the Company or
its designated agent, together with a written assignment of this Warrant
substantially in the form attached hereto duly executed by the Holder or its
agent or attorney and funds sufficient to pay any transfer taxes payable upon
the making of such transfer. Upon such surrender and, if required,
such payment, the Company shall execute and deliver a new Warrant or Warrants in
the name of the assignee or assignees, as applicable, and in the denomination or
denominations specified in such instrument of assignment, and shall issue to the
assignor a new Warrant evidencing the portion of this Warrant not so assigned,
and this Warrant shall promptly be cancelled. The Warrant, if
properly assigned in accordance herewith, may be exercised by a new holder for
the purchase of Warrant Shares without having a new Warrant issued.
b)
New Warrants
. This
Warrant may be divided or combined with other Warrants upon presentation hereof
at the aforesaid office of the Company, together with a written notice
specifying the names and denominations in which new Warrants are to be issued,
signed by the Holder or its agent or attorney. Subject to compliance
with Section 5(f), as to any transfer which may be involved in such division or
combination, the Company shall execute and deliver a new Warrant or Warrants in
exchange for the Warrant or Warrants to be divided or combined in accordance
with such notice. All Warrants issued on transfers or exchanges shall be dated
the initial issuance date set forth on the first page of this Warrant and shall
be identical with this Warrant except as to the number of Warrant Shares
issuable pursuant thereto.
c)
Warrant Register
. The
Company shall register this Warrant, upon records to be maintained by the
Company for that purpose (the “
Warrant Register
”),
in the name of the record Holder hereof from time to time. The
Company may deem and treat the registered Holder of this Warrant as the absolute
owner hereof for the purpose of any exercise hereof or any distribution to the
Holder, and for all other purposes, absent actual notice to the
contrary.
d)
Understandings or
Arrangements
. Such Holder is
acquiring this Warrant as principal for its own account and has no direct or
indirect arrangement or understandings with any other persons to distribute or
regarding the distribution of such Warrant (this representation and warranty not
limiting such Holder’s right to sell the Warrant pursuant to the Registration
Statement or otherwise in compliance with applicable federal and state
securities laws.) Such Holder is acquiring this Warrant hereunder in the
ordinary course of its business.
Section
5
.
Miscellaneous
.
a)
No Rights as Stockholder
Until Exercise
. This Warrant does not entitle the Holder to
any voting rights, dividends or other rights as a shareholder of the Company
prior to the exercise hereof as set forth in Section 2(d)(i).
b)
Loss, Theft, Destruction or
Mutilation of Warrant
. The Company covenants that upon receipt by the
Company of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant or any share certificate relating to
the Warrant Shares, and in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to it (which, in the case of the Warrant, shall
not include the posting of any bond), and upon surrender and cancellation of
such Warrant or share certificate, if mutilated, the Company will make and
deliver a new Warrant or share certificate of like tenor and dated as of such
cancellation, in lieu of such Warrant or share certificate.
c)
Saturdays, Sundays,
Holidays, etc
. If the last or appointed day for the taking of
any action or the expiration of any right required or granted herein shall not
be a Business Day, then, such action may be taken or such right may be exercised
on the next succeeding Business Day.
d)
Authorized
Shares
. The Company covenants that, during the period the
Warrant is outstanding, it will reserve from its authorized and unissued Common
Shares a sufficient number of shares to provide for the issuance of the Warrant
Shares upon the exercise of any purchase rights under this
Warrant. The Company further covenants that its issuance of this
Warrant shall constitute full authority to its officers who are charged with the
duty of executing share certificates to execute and issue the necessary
certificates for the Warrant Shares upon the exercise of the purchase rights
under this Warrant. The Company will take all such reasonable action
as may be necessary to assure that such Warrant Shares may be issued as provided
herein without violation of any applicable law or regulation, or of any
requirements of the Trading Market(s) upon which the Common Shares may then be
listed. The Company covenants that all Warrant Shares which may be
issued upon the exercise of the purchase rights represented by this Warrant
will, upon exercise of the purchase rights represented by this Warrant and
payment for such Warrant Shares in accordance herewith, be duly authorized,
validly issued, fully paid and non-assessable and free from all taxes, liens and
charges created by the Company in respect of the issue thereof (other than taxes
in respect of any transfer occurring contemporaneously with such
issue).
Except
and to the extent as waived or consented to by the Holder, the Company shall not
by any action, including, without limitation, amending its articles of
incorporation or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms of this
Warrant, but will at all times in good faith assist in the carrying out of all
such terms and in the taking of all such actions as may be necessary or
appropriate to protect the rights of Holder as set forth in this Warrant against
impairment. Without limiting the generality of the foregoing, the
Company will (i) take all such action as may be necessary or appropriate in
order that the Company may validly and legally issue fully paid and
non-assessable Warrant Shares upon the exercise of this Warrant and (ii) use
commercially reasonable efforts to obtain all such authorizations, exemptions or
consents from any public regulatory body having jurisdiction thereof, as may be,
necessary to enable the Company to perform its obligations under this
Warrant.
Before
taking any action which would result in an adjustment in the number of Warrant
Shares for which this Warrant is exercisable or in the Exercise Price, the
Company shall obtain all such authorizations or exemptions thereof, or consents
thereto, as may be necessary from any public regulatory body or bodies having
jurisdiction thereof.
e)
Jurisdiction
. All
questions concerning the construction, validity, enforcement and interpretation
of this Warrant shall be determined in accordance with the provisions of the
Purchase Agreement.
f)
Resale
Restrictions
.
i.
U.S. Securities Laws
.
The Holder acknowledges that the Warrant Shares acquired upon the exercise of
this Warrant, if not registered, and the Holder does not utilize cashless
exercise, will have restrictions upon resale imposed by U.S. state and federal
securities laws.
ii.
Canadian Securities
Law
. The Holder acknowledges that there are restrictions under Canadian
Securities Laws on the Holder’s ability to transfer this Warrant in Canada or to
or for the benefit of a resident of Canada and, with respect to any Warrant
Shares issued pursuant to the exercise of this Warrant before April
, 2010, the
Holder’s ability to transfer such Warrant Shares over the facilities of the TSX,
or otherwise transfer such Warrant Shares in Canada or to or for the benefit of
a resident of Canada, and that is the responsibility of such Holders to find out
what those restrictions are and to comply with them before transferring this
Warrant or such Warrant Shares. Without limiting the generality of the
foregoing, each Purchaser hereby covenants that, unless permitted under the
Canadian Securities Laws, the Common Shares and Warrants included in the Units,
and the Warrant Shares issuable upon the exercise of the Warrants, may not be
traded on the Toronto Stock Exchange or in Canada, or to or for the benefit of a
resident of Canada, before the date that is four (4) months and a day after the
Closing Date. By acceptance of this Warrant, the Holder further
acknowledges and understands that any physical certificate representing Warrant
Shares issued before April
, 2010 will
bear the following legend:
“UNLESS
PERMITTED UNDER CANADIAN SECURITIES LEGISLATION, THE HOLDER OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE MUST NOT TRADE SUCH SECURITIES BEFORE
APRIL , 2010 ON THE TORONTO STOCK EXCHANGE OR
IN CANADA OR TO OR FOR THE BENEFIT OF A RESIDENT OF CANADA.
WITHOUT
PRIOR WRITTEN APPROVAL OF THE TORONTO STOCK EXCHANGE AND COMPLIANCE WITH ALL
APPLICABLE CANADIAN SECURITIES LAWS, THE SECURITIES REPRESENTED BY THIS
CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE TRADED ON OR
THROUGH THE FACILITIES OF THE TORONTO STOCK EXCHANGE OR TO OR FOR THE BENEFIT OF
A CANADIAN RESIDENT UNTIL APRIL , 2010.
DELIVERY OF THIS CERTIFICATE MAY NOT CONSTITUTE GOOD DELIVERY IN SETTLEMENT OF
TRANSACTIONS ON CANADIAN STOCK EXCHANGES.”
g)
Non-waiver and
Expenses
. No course of dealing or any delay or failure to
exercise any right hereunder on the part of Holder shall operate as a waiver of
such right or otherwise prejudice Holder’s rights, powers or
remedies. Without limiting any other provision of this Warrant or the
Purchase Agreement, if the Company willfully and knowingly fails to comply with
any provision of this Warrant which results in any material damages to the
Holder, the Company shall pay to Holder such amounts as shall be sufficient to
cover any costs and expenses including, but not limited to, reasonable
attorneys’ fees, including those of appellate proceedings, incurred by Holder in
collecting any amounts due pursuant hereto or in otherwise enforcing any of its
rights, powers or remedies hereunder.
h)
Notices
. Any
notice, request or other document required or permitted to be given or delivered
to the Holder by the Company shall be delivered in accordance with the notice
provisions of the Purchase Agreement.
i)
Limitation of
Liability
. No provision hereof, in the absence of any
affirmative action by Holder to exercise this Warrant to purchase Warrant
Shares, and no enumeration herein of the rights or privileges of Holder, shall
give rise to any liability of Holder for the purchase price of any Common Shares
or as a shareholder of the Company, whether such liability is asserted by the
Company or by creditors of the Company.
j)
Remedies
. The
Holder, in addition to being entitled to exercise all rights granted by law,
including recovery of damages, will be entitled to specific performance of its
rights under this Warrant. The Company agrees that monetary damages
would not be adequate compensation for any loss incurred by reason of a breach
by it of the provisions of this Warrant and hereby agrees to waive and not to
assert the defense in any action for specific performance that a remedy at law
would be adequate.
k)
Successors and
Assigns
. Subject to applicable securities laws, this Warrant
and the rights and obligations evidenced hereby shall inure to the benefit of
and be binding upon the successors and permitted assigns of the Company and the
successors and permitted assigns of Holder. The provisions of this
Warrant are intended to be for the benefit of any Holder from time to time of
this Warrant and shall be enforceable by the Holder or holder of Warrant
Shares.
l)
Amendment
. This
Warrant may be modified or amended or the provisions hereof waived with the
written consent of the Company and the Holder and, if the Company is listed on
the TSX at the time of the proposed modification or amendment, the approval of
the TSX.
m)
Severability
. Wherever
possible, each provision of this Warrant shall be interpreted in such manner as
to be effective and valid under applicable law, but if any provision of this
Warrant shall be prohibited by or invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provisions or the remaining provisions of
this Warrant.
n)
Headings
. The
headings used in this Warrant are for the convenience of reference only and
shall not, for any purpose, be deemed a part of this Warrant.
********************
(Signature
Pages Follow)
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its
officer thereunto duly authorized as of the date first above
indicated.
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DEJOUR
ENTERPRISES LTD.
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By:
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Name:
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Title:
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NOTICE
OF EXERCISE
TO: DEJOUR
ENTERPRISES LTD.
(1)
The undersigned hereby elects to purchase ________ Warrant Shares of the Company
pursuant to the terms of the attached Warrant (only if exercised in full), and
tenders herewith payment of the exercise price in full, together with all
applicable transfer taxes, if any.
(2)
Payment shall take the form of (check applicable box):
[ ]
in lawful money of the United States; or
[ ] [if
permitted] the cancellation of such number of Warrant Shares as is necessary, in
accordance with the formula set forth in subsection 2(c), to exercise this
Warrant with respect to the maximum number of Warrant Shares purchasable
pursuant to the cashless exercise procedure set forth in subsection
2(c).
(3)
Please issue a physical certificate or certificates representing said Warrant
Shares in the name of the undersigned or in such other name and address as is
specified below:
Registration
Instruction
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Delivery
Instruction (If Different from
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Registration)
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Name:
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Name:
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Address:
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Address:
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Phone
#
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Email
#
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If you
prefer to have the Warrant Shares delivered
by DWAC
instead of
physical certificate, please provide the following:
DWAC
Information
|
Broker’s
Contact
|
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DWAC
Acct#: _______________________
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Contact
Name: _______________________
|
Name
of Broker: _______________________
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Address
of Broker______________________
|
Phone
#: ____________________________
|
_____________________________________
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_____________________________________
|
Email
Address:_______________________
|
Name of
Investing Entity:
________________________________________________________________________
Signature of Authorized Signatory of
Investing Entity
:
_________________________________________________
Name of
Authorized Signatory:
___________________________________________________________________
Title of
Authorized Signatory:
____________________________________________________________________
Phone
Number of Authorized Signatory:
____________________________________________________________
Email of
Authorized Signatory:
___________________________________________________________________
Date:
______________________________________________________________________________________
ASSIGNMENT
FORM
(To
assign the foregoing warrant, execute
this form
and supply required information.
Do not
use this form to exercise the warrant.)
FOR VALUE
RECEIVED, [____] all of or [_______] shares of the foregoing Warrant and all
rights evidenced thereby are hereby assigned to
By
signing below, the Holder certifies to the best of its knowledge that, if this
assignment is on a date within four months and one day from the issuance of the
Warrant, the assignee of the above shares is not a Canadian resident or
otherwise subject to Canadian law and is not acquiring these shares on behalf
of, or for the account or benefit of such a person.
Registration
Instruction
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Delivery
Instruction (If Different from
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Registration)
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Name:
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Name:
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Address:
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Address:
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Phone
#
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Email
#
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Dated: ______________,
_______
Holder’s
Signature: _____________________________
Holder’s
Address: _____________________________
_____________________________
Holder’s Phone
#: _____________________________
Holder’s
Email: _____________________________
Signature
Guaranteed: ___________________________________________
NOTE: The
signature to this Assignment Form must correspond with the name as it appears on
the face of the Warrant, without alteration or enlargement or any change
whatsoever, and must be guaranteed by a bank or trust
company. Officers of corporations and those acting in a fiduciary or
other representative capacity should file proper evidence of authority to assign
the foregoing Warrant.
EXHIBIT
B
Term Sheet
for financing of
DEJOUR
ENTERPRISES LTD.
Prospectus
Offering of Units
(All
amounts in US$)
SUMMARY OF TERMS AND
CONDITIONS
This Summary of Terms and Conditions
is not intended to be contractually binding and is subject in all respects to
the execution of the subscription agreement attached hereto as Annex
A.
Issuer:
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Dejour
Enterprises Ltd. (the “Company”)
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Offering:
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Up
to 11,666,666 units. Each unit consists of one common share
("unit share") and three-quarters of one warrant. The unit
shares and warrants offered hereby are immediately separable and will be
issued separately. There is no minimum offering amount.
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Warrants:
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Each
whole warrant will entitle the holder to purchase one common share
("warrant share"), subject to adjustment and early termination, for a
period of five (5) years commencing after the 181
st
day following closing of this offering at an exercise price of
$0.40. The warrants will be freely transferable. The warrants
have rights and privileges and are subject to restrictions as set forth in
the form of warrant attached as Exhibit A to the subscription
agreement attached hereto as Annex A. The unit shares, warrants
and warrant shares are referred to collectively herein as the
"Securities".
In
the event that (i) the Company’s common shares trade on a Trading Market
(as defined in the subscription agreement to which this term sheet is
attached) in the United States at a volume weighted average price of
greater than $1.00 per common share for a period of 20 consecutive trading
days at any time after the closing of this offering, (ii) the average
daily volume for such 20-day period exceeds $100,000 per trading day and
(iii) the holder is not in possession of material non-public information
provided to the holder by the Company, the Company may exercise a call
right for cancellation of all or any of the warrants by giving notice
pursuant to the terms of the warrants to the holders thereof and in such
case any warrant not exercised in 30 trading days after such notice shall
be terminated.
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Amount:
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Up
to US$3,500,000
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Price
to the Public:
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$0.30
per unit
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Placement
Agent:
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Rodman
& Renshaw, LLC is the exclusive placement agent in connection with
this offering.
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Placement
Agent’s Fee:
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We
have agreed to pay the placement agents a fee equal to $0.018 for each
unit sold pursuant to the offering. In addition, the placement
agent will receive warrants to purchase 6% of the number of unit shares
sold in this offering. The warrants shall have the same terms as the
warrants issued to Purchasers except the exercise price shall be 125% of
the five day volume weighted average market price per share, but in no
event less than 125% of the public offering price pursuant to FINRA Rule
5110.
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Use
of Proceeds:
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The
net proceeds from the sale of the units in this offering are estimated to
be approximately $3.2 million, after deducting the placement agents’
fee and estimated offering expenses. We intend to use the net proceeds
from this offering to explore and develop our oil & gas properties,
for working capital and for general corporate purposes.
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Canadian
Resale Restrictions:
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There
are restrictions under Canadian securities laws on investors' ability to
resell the Securities over the facilities of the Toronto Stock Exchange,
or otherwise resell the Securities in Canada or to or for the benefit of a
resident of Canada. Unless permitted under Canadian securities
laws, the Securities may not be traded before the date that is four (4)
months and a day after the closing date of the offering. Any physical
certificate representing the unit shares and, if they are issued before
the date which four months and a day after closing, the warrant shares
issuable upon the exercise of the warrants, will bear the following
legend:
“UNLESS
PERMITTED UNDER CANADIAN SECURITIES LEGISLATION, THE HOLDER OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE MUST NOT TRADE SUCH SECURITIES
BEFORE [
INSERT DATE THAT
IS 4 MONTHS AND A DAY AFTER THE CLOSING DATE
] ON THE TORONTO STOCK
EXCHANGE OR IN CANADA OR TO OR FOR THE BENEFIT OF A RESIDENT OF
CANADA.
WITHOUT
PRIOR WRITTEN APPROVAL OF THE TORONTO STOCK EXCHANGE AND COMPLIANCE WITH
ALL APPLICABLE CANADIAN SECURITIES LAWS, THE SECURITIES REPRESENTED BY
THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE
TRADED ON OR THROUGH THE FACILITIES OF THE TORONTO STOCK EXCHANGE OR IN
CANADA OR TO OR FOR THE BENEFIT OF A CANADIAN RESIDENT UNTIL [
INSERT DATE WHICH IS FOUR
MONTHS AFTER CLOSING
]. DELIVERY OF THIS CERTIFICATE MAY NOT
CONSTITUTE GOOD DELIVERY IN SETTLEMENT OF TRANSACTIONS ON CANADIAN STOCK
EXCHANGES.”
Any
physical certificate representing the warrants will bear the following
legend:
“UNLESS
PERMITTED UNDER CANADIAN SECURITIES LEGISLATION, THE HOLDER OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE MUST NOT TRADE SUCH SECURITIES
BEFORE [
INSERT DATE THAT
IS 4 MONTHS AND A DAY AFTER THE CLOSING DATE
] IN CANADA OR TO OR
FOR THE BENEFIT OF A RESIDENT OF
CANADA.
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Subscription
and Closing Date:
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We
and each investor participating in the offering will execute a
subscription agreement in the form to which this Term Sheet is
attached. It is expected that the closing of the Offering shall
occur on or about December 21, 2009.
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Risk
Factors:
|
|
Investing
in the units involves risks, including those that are described in the
“Risk Factors and Uncertainties” section beginning on page 7 of the base
prospectus dated November 3, 2009, as filed with the SEC, to the extent
applicable, the “Risk Factors” sections of our annual report on Form 20-F
for the fiscal year ended December 31, 2008, as amended, as filed with the
SEC, and the section of the prospectus supplement relating to the offering
of the units to be filed with the SEC.
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Tax
Considerations:
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|
Purchasing
the common shares and warrants and exercising the warrants may have tax
consequences in the United States and Canada. See the section entitled
“Certain U.S. Federal Income Tax Considerations” in this term
sheet.
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Listing
Symbol:
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Our
common shares are traded on the Toronto Stock Exchange and on the NYSE
Amex, in both cases under the symbol “DEJ.”
There is no market through
which the warrants may be sold and purchasers may not be able to resell
the warrants purchased in the offering.
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Confidential
Information:
|
|
The
recipient of this Term Sheet and the materials attached hereto agrees with
the Company and Rodman & Renshaw, LLC to maintain in confidence this
disclosed information, together with any other non-public information
regarding the Company obtained from the Company and Rodman & Renshaw,
LLC or their agents during the course of the proposed offering, and to
comply with the recipient’s obligations under U.S. and state securities
laws.
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RECENT
DEVELOPMENTS
On
October 22, 2009, the Company completed the second tranche of a private
placement of "flow-through" common shares. In connection with this transaction,
the Company sold 375,000 flow-through shares at a price of Cdn.$0.60 per share,
for gross proceeds of Cdn$225,000. Total gross proceeds in combination with the
first tranche, in connection with which the Company sold 1,333,333 flow-through
shares on October 14, 2009, is Cdn$1,601,000. The Company hase paid a total
finders fee of Cdn$83,980 in cash in connection with the private placement. All
offers and sales of flow-through shares in the private placement have been made
in Canada.
On
December 2, 2009, the Company announced the successful acquisition of over 2,000
acres of leasehold in Northeast British Columbia adjacent to the Company’s
existing leasehold at Woodrush and on trend with the Halfway oil pool discovered
by the Company in early 2008. Through this lease acquisition and a 3D seismic
program currently underway, the Company anticipate to significantly augment the
areal and volumetric extent of its 73.5% owned Halfway oil pool. The
Company has commenced its winter exploration drilling program at Woodrush. The
Company expects to drill up to three new oil wells during this program. The
first well, expected to be completed and in production by the end of December,
offsets the initial discovery well at Woodrush, in production since 2008.
Initial production test results from this well are expected by mid-December. The
balance of the drilling plan is scheduled for completion during the first
quarter of 2010.
CERTAIN
U.S. FEDERAL INCOME TAX CONSIDERATIONS
The
following is a general summary of certain material U.S. federal income tax
considerations applicable to a U.S. Holder (as defined below) arising from and
relating to the acquisition, ownership and disposition of units acquired
pursuant to the offering to which this communication relates, the acquisition,
ownership, and disposition of unit shares, the exercise, disposition, and lapse
of warrants acquired as part of the units, and the acquisition, ownership, and
disposition of warrant shares received on exercise of the warrants.
This
summary is for general information purposes only and does not purport to be a
complete analysis or listing of all potential U.S. federal income tax
considerations that may apply to a U.S. Holder as a result of the acquisition of
units pursuant to the offering to which this communication
relates. In addition, this summary does not take into account the
individual facts and circumstances of any particular U.S. Holder that may affect
the U.S. federal income tax considerations applicable to such U.S.
Holder. Accordingly, this summary is not intended to be, and should
not be construed as, legal or U.S. federal income tax advice with respect to any
U.S. Holder. Each U.S. Holder should consult its own tax advisor
regarding the U.S. federal, U.S. state and local, and foreign tax consequences
relating to the acquisition, ownership, and disposition of units, unit shares,
warrants, and warrant shares.
No ruling
from the U.S. Internal Revenue Service (the “IRS”) or legal opinion has been
requested, or will be obtained, regarding the US. federal income tax
considerations applicable to U.S. Holders as discussed in this
summary. This summary is not binding on the IRS, and the IRS is not
precluded from taking a position that is different from, and contrary to, the
positions taken in this summary. In addition, because the authorities
on which this summary is based are subject to various interpretations, the IRS
and the U.S. courts could disagree with one or more of the positions taken in
this summary.
NOTICE
PURSUANT TO IRS CIRCULAR 230: NOTHING CONTAINED IN THIS SUMMARY CONCERNING ANY
U.S. FEDERAL TAX ISSUE IS INTENDED OR WRITTEN TO BE USED, AND IT CANNOT BE USED,
BY A U.S. HOLDER (AS DEFINED BELOW), FOR THE PURPOSE OF AVOIDING U.S. FEDERAL
TAX PENALTIES UNDER THE CODE (AS DEFINED BELOW). THIS SUMMARY WAS
WRITTEN TO SUPPORT THE PROMOTION OR MARKETING OF THE TRANSACTIONS OR MATTERS
ADDRESSED BY THIS PROSPECTUS SUPPLEMENT. EACH U.S. HOLDER SHOULD SEEK
U.S. FEDERAL TAX ADVICE, BASED ON SUCH U.S. HOLDER’S PARTICULAR CIRCUMSTANCES,
FROM AN INDEPENDENT TAX ADVISOR.
Scope
of this Summary
Authorities
This
summary is based on the Internal Revenue Code of 1986, as amended (the “Code”),
Treasury Regulations (whether final, temporary, or proposed), U.S. court
decisions, published IRS rulings, published administrative positions of the IRS,
and the Convention Between Canada and the United States of America with Respect
to Taxes on Income and on Capital, signed September 26, 1980, as amended (the
“Canada-U.S. Tax Convention”), that are applicable and, in each case, as in
effect and available, as of the date of this communication . Any of
the authorities on which this summary is based could be changed in a material
and adverse manner at any time, and any such change could be applied on a
retroactive basis and could affect the U.S. federal income tax considerations
described in this summary. This summary does not discuss the
potential effects, whether adverse or beneficial, of any proposed legislation
that, if enacted, could be applied on a retroactive basis.
U.S.
Holders
For
purposes of this summary, a “U.S. Holder” is a beneficial owner of units, unit
shares, warrants, or warrant shares acquired pursuant to this offering to which
this communication relates that is (a) an individual who is a citizen or
resident of the U.S. for U.S. federal income tax purposes, (b) a
corporation, or other entity classified as a corporation for U.S. federal income
tax purposes, that is created or organized in or under the laws of the U.S. or
any state in the U.S., including the District of Columbia, (c) an estate if
the income of such estate is subject to U.S. federal income tax regardless of
the source of such income, or (d) a trust if (i) such trust has
validly elected to be treated as a U.S. person for U.S. federal income tax
purposes or (ii) a U.S. court is able to exercise primary supervision over
the administration of such trust and one or more U.S. persons have the authority
to control all substantial decisions of such trust.
Non-U.S.
Holders
For
purposes of this summary, a “Non-U.S. Holder” is a beneficial owner of units,
unit shares, warrants, or warrant shares that is neither a U.S. Holder nor a
partnership. This summary does not address any U.S. federal income
tax considerations applicable to Non-U.S. Holders. Accordingly, a
Non-U.S. Holder should consult its own tax advisor regarding the U.S. federal,
U.S. state and local, and foreign tax consequences (including the potential
application of and operation of any tax treaties) relating to the acquisition,
ownership, and disposition of units, unit shares, warrants, and warrant
shares.
U.S. Holders Subject to
Special U.S. Federal Income Tax Rules Not Addressed
This
summary does not address the U.S. federal income tax considerations applicable
to U.S. Holders that are subject to special provisions under the Code,
including: (a) U.S. Holders that are tax-exempt organizations, qualified
retirement plans, individual retirement accounts, or other tax-deferred
accounts; (b) U.S. Holders that are financial institutions, underwriters,
insurance companies, real estate investment trusts, or regulated investment
companies or that are broker-dealers, dealers, or traders in securities or
currencies that elect to apply a mark-to-market accounting method; (c) U.S.
Holders that have a “functional currency” other than the U.S. dollar; (d) U.S.
Holders that own units, unit shares, warrants or warrant shares as part of a
straddle, hedging transaction, conversion transaction, constructive sale, or
other arrangement involving more than one position; (e) U.S. Holders that
acquired units, unit shares, warrants or warrant shares in connection with the
exercise of employee stock options or otherwise as compensation for services;
(f) U.S. Holders that hold units, unit shares, warrants or warrant shares other
than as a capital asset within the meaning of Section 1221 of the Code; or (g)
U.S. Holders that own, directly, indirectly, or by attribution, 10% or more, by
voting power or value, of the outstanding shares of the Company. The
summary below also does not address the impact of this offering on U.S. persons
who are U.S. expatriates or former long-term residents of the U.S. subject to
Section 877 of the Code. U.S. Holders and others that are subject to
special provisions under the Code, including U.S. Holders described immediately
above, should consult their own tax advisors.
If an
entity that is classified as partnership (or “pass-through” entity) for U.S.
federal income tax purposes holds units, unit shares, warrants or warrant
shares, the U.S. federal income tax consequences applicable to such partnership
(or “pass-through” entity) and the partners of such partnership (or owners of
such “pass-through” entity) generally will depend on the activities of the
partnership (or “pass-through” entity) and the status of such partners (or
owners). Partners of entities that are classified as partnerships
(and owners of “pass-through” entities) for U.S. federal income tax purposes
should consult their own tax advisor regarding the U.S. federal income tax
consequences relating to the acquisition, ownership, and disposition of units,
unit shares, warrants, and warrant shares.
Tax Consequences Other than
U.S. Federal Income Tax Consequences Not Addressed
This
summary does not address the U.S. state and local, U.S. federal estate and gift,
U.S. federal alternative minimum tax, or foreign tax consequences to U.S.
Holders relating to the acquisition, ownership, and disposition of units, unit
shares, warrants, and warrant shares. Each U.S. Holder should consult
its own tax advisor regarding the U.S. state and local, U.S. federal estate and
gift, U.S. federal alternative minimum tax and foreign tax consequences relating
to the acquisition, ownership, and disposition of units, unit shares, warrants,
and warrant shares.
U.S.
Federal Income Tax Consequences of the Acquisition of Units
For U.S.
federal income tax purposes, the acquisition by a U.S. Holder of a unit will be
treated as the acquisition of an “investment unit” consisting of two
components: a component consisting of one unit share and a component
consisting of three-quarters of one warrant. The purchase price for
each unit will be allocated between these two components in proportion to their
relative fair market values at the time the unit is purchased by the U.S.
Holder. This allocation of the purchase price for each unit will
establish a U.S. Holder’s initial tax basis for U.S. federal income tax purposes
in the unit share and three-quarters of one warrant that comprise each
unit.
For this
purpose, the Company will allocate $0.23 of the purchase price for the unit to
the unit share and $0.07 of the purchase price for each unit to the
three-quarters of one of one warrant. However, the IRS will not be
bound by the Company’s allocation of the purchase price for the units, and
therefore, the IRS or a U.S. court may not respect the allocation set forth
above. Each U.S. Holder should consult its own tax advisor regarding
the allocation of the purchase price for the units.
U.S.
Federal Income Tax Consequences of the Exercise and Disposition of
Warrants
Exercise of
Warrants
A U.S.
Holder should not recognize gain or loss on the exercise of a warrant and
related receipt of a warrant share (unless cash is received in lieu of the
issuance of a fractional warrant share). A U.S. Holder’s initial tax
basis in the warrant share received on the exercise of a warrant should be equal
to the sum of (a) such U.S. Holder’s tax basis in such warrant plus (b) the
exercise price paid by such U.S. Holder on the exercise of such
warrant. Subject to the “passive foreign investment company” (or
“PFIC”, as defined below) rules discussed below, a U.S. Holder’s holding period
for the warrant share received on the exercise of a warrant should begin on the
date that such warrant is exercised by such U.S. Holder..
Disposition of
Warrants
A U.S.
Holder will recognize gain or loss on the sale or other taxable disposition of a
warrant in an amount equal to the difference, if any, between (a) the amount of
cash plus the fair market value of any property received and (b) such U.S.
Holder’s tax basis in the warrant sold or otherwise disposed of. As
noted below under “Disposition of unit shares and warrant shares”, such gain or
loss will generally be treated as “U.S. source” for purposes of the U.S. foreign
tax credit calculations. Subject to the PFIC rules discussed below,
any such gain or loss generally will be a capital gain or loss (provided that
the warrant share to be issued on the exercise of such warrant would have been a
capital asset within the meaning of Section 1221 of the Code if acquired by the
U.S. Holder), which will be long-term capital gain or loss if the warrant is
held for more than one year.
Expiration of Warrants
Without Exercise
Subject
to the PFIC rules discussed below, upon the lapse or expiration of a warrant, a
U.S. Holder will recognize a loss in an amount equal to such U.S. Holder’s tax
basis in the warrant. Any such loss generally will be a capital loss
and will be long-term capital loss if the warrants are held for more than one
year. Deductions for capital losses are subject to complex
limitations under the Code.
Certain Adjustments to the
Warrants
Under
Section 305 of the Code, an adjustment to the number of warrant shares that will
be issued on the exercise of the warrants, or an adjustment to the exercise
price of the warrants, may be treated as a constructive distribution to a U.S.
Holder of the warrants if, and to the extent that, such adjustment has the
effect of increasing such U.S. Holder’s proportionate interest in the “earnings
and profits” or assets of the Company, depending on the circumstances of such
adjustment (for example, if such adjustment is to compensate for a distribution
of cash or other property to shareholders of the Company). (See more
detailed discussion of the rules applicable to distributions made by the Company
at “U.S. Federal Income Tax Consequences of the Acquisition, Ownership, and
Disposition of Unit Shares and Warrant Shares – Distributions on Unit Shares and
Warrant Shares” below).
U.S.
Federal Income Tax Consequences of the Acquisition, Ownership, and Disposition
of Unit Shares and Warrant Shares
Distributions on Unit Shares
and Warrant Shares
Subject
to PFIC rules discussed below, a U.S. Holder that receives a distribution,
including a constructive distribution, with respect to a unit share or warrant
share will be required to include the amount of such distribution in gross
income as a dividend (without reduction for any Canadian income tax withheld
from such distribution) to the extent of the current or accumulated “earnings
and profits” of the Company, as computed for U.S. federal income tax
purposes. To the extent that a distribution exceeds the current and
accumulated “earnings and profits” of the Company, such distribution will be
treated first as a tax-free return of capital to the extent of a U.S. Holder's
tax basis in the unit shares or warrant shares and thereafter as gain from the
sale or exchange of such unit shares or warrant shares. (See “ Sale
or Other Taxable Disposition of unit shares and/or Warrant Shares”
below). However, the Company does not intend to maintain the
calculations of earnings and profits in accordance with U.S. federal income tax
principles, and each U.S. Holder should therefore assume that any distribution
by the Company with respect to the unit shares or warrant share will constitute
ordinary dividend income. Dividends received on unit shares or
warrant shares generally will not be eligible for the “dividends received
deduction”.
For tax
years beginning before January 1, 2011, a dividend paid to a U.S. Holder who is
an individual, estate or trust by the Company generally will be taxed at the
preferential tax rates applicable to long-term capital gains if the Company is a
“qualified foreign corporation” as defined under Section 1(h)(11) of the Code
(“QFC”) and certain holding period requirements for the unit shares or warrant
shares are met. The Company generally will be a QFC if the Company is
eligible for the benefits of the Canada-U.S. Tax Convention or the unit shares
or warrant shares are readily tradable on an established securities market in
the U.S. However, even if the Company satisfies one or more of these
requirements, the Company will not be treated as a QFC if the Company is a PFIC
for the tax year during which it pays a dividend or for the preceding tax
year. (See the section below under the heading “Passive Foreign
Investment Company Rules”).
If the
Company does not constitute a PFIC, but a dividend paid to a U.S. Holder
otherwise fails to qualify for the preferential tax rates discussed above, such
a dividend generally will be taxed at ordinary income tax rates (and not at the
preferential tax rates applicable to long-term capital gains).
Sale or Other Taxable
Disposition of Unit Shares and/or Warrant Shares
Subject
to the PFIC rules discussed below, upon the sale or other taxable disposition of
unit shares or warrant shares, a U.S. Holder generally will recognize capital
gain or loss in an amount equal to the difference between (i) the amount of cash
plus the fair market value of any property received and (ii) such U.S. Holder’s
tax basis in such unit shares or warrant shares sold or otherwise disposed
of. Such gain generally will be treated as “U.S. source” for purposes
of applying the U.S. foreign tax credit rules unless the gain is subject to tax
in Canada and is resourced as “foreign source” under the Canada-U.S. Tax
Convention and such U.S. Holder elects to treat such gain or loss as “foreign
source.” (See more detailed discussion at “Foreign Tax Credit”
below).
Preferential
tax rates apply to long-term capital gain of a U.S. Holder that is an
individual, estate, or trust. There are currently no preferential tax
rates for long-term capital gain of a U.S. Holder that is a
corporation. Deductions for capital losses are subject to significant
limitations under the Code.
Foreign Tax
Credit
A U.S.
Holder who pays (whether directly or through withholding) Canadian income tax
with respect to dividends paid on the unit shares and warrant shares generally
will be entitled, at the election of such U.S. Holder, to receive either a
deduction or a credit for such Canadian income tax paid. This
election is made on a year-by-year basis and applies to all foreign taxes paid
(whether directly or through withholding) by a U.S. Holder during a
year.
Complex
limitations apply to the foreign tax credit, including the general limitation
that the credit cannot exceed the proportionate share of a U.S. Holder’s U.S.
federal income tax liability that such U.S. Holder’s “foreign source” taxable
income bears to such U.S. Holder’s worldwide taxable income. In
applying this limitation, a U.S. Holder’s various items of income and deduction
must be classified, under complex rules, as either “foreign source” or “U.S.
source.” In addition, this limitation is calculated separately with
respect to specific categories of income. Dividends paid by the
Company generally will constitute “foreign source” income and generally will be
categorized as “passive category income.” Because the foreign tax
credit rules are complex, each U.S. Holder should consult its own tax advisor
regarding the foreign tax credit rules.
Receipt of Foreign
Currency
The
amount of any distribution paid in foreign currency to a U.S. Holder in
connection with the ownership of unit shares or warrant shares, or on the sale,
exchange or other taxable disposition of the Company’s unit shares, warrants or
warrant shares generally will be equal to the U.S. dollar value of such foreign
currency based on the exchange rate applicable on the date of actual or
constructive receipt (regardless of whether such foreign currency is converted
into U.S. dollars at that time). If the foreign currency received is
not converted into U.S. dollars on the date of receipt, a U.S. Holder will have
a basis in the foreign currency equal to its U.S. dollar value on the date of
receipt. A U.S. Holder that receives foreign currency and converts
such foreign currency into U.S. dollars at a conversion rate other than the rate
in effect on the date of receipt may have a foreign currency exchange gain or
loss, which generally would be treated as U.S. source ordinary income or loss
for foreign tax credit purposes. Each U.S. Holder should consult its
own U.S. tax advisor regarding the U.S. federal income tax consequences of
receiving, owning, and disposing of foreign currency.
Passive
Foreign Investment Company Rules
If the
Company were to constitute a PFIC (as defined below) for any year during a U.S.
Holder’s holding period, then certain different and potentially adverse tax
consequences would apply to such U.S. Holder’s acquisition, ownership and
disposition of units, common shares, warrants, and warrant shares.
The
Company generally will be a PFIC under Section 1297 of the Code if, for a
taxable year, (a) 75% or more of the gross income of the Company for such
taxable year is passive income or (b) 50% or more of the assets held by the
Company either produce passive income or are held for the production of passive
income, based on the fair market value of such assets (or on the adjusted tax
basis of such assets, if the Company is not publicly traded and either is a
“controlled foreign corporation” or makes an election). “Gross
income” generally means all revenues less the cost of goods sold, and “passive
income” includes, for example, dividends, interest, certain rents and royalties,
certain gains from the sale of stock and securities, and certain gains from
commodities transactions. Active business gains arising from the sale
of commodities generally are excluded from passive income if substantially all
of a foreign corporation’s commodities are (a) stock in trade of such foreign
corporation or other property of a kind which would properly be included in
inventory of such foreign corporation, or property held by such foreign
corporation primarily for sale to customers in the ordinary course of business,
(b) property used in the trade or business of such foreign corporation that
would be subject to the allowance for depreciation under Section 167 of the
Code, or (c) supplies of a type regularly used or consumed by such foreign
corporation in the ordinary course of its trade or business.
In
addition, for purposes of the PFIC income test and asset test described above,
if the Company owns, directly or indirectly, 25% or more of the total value of
the outstanding shares of another corporation, the Company will be treated as if
it (a) held a proportionate share of the assets of such other corporation and
(b) received directly a proportionate share of the income of such other
corporation. In addition, for purposes of the PFIC income test and
asset test described above, “passive income” does not include any interest,
dividends, rents, or royalties that are received or accrued by the Company from
a “related person” (as defined in Section 954(d)(3) of the Code), to the extent
such items are properly allocable to the income of such related person that is
not passive income.
Under
certain attribution rules, if the Company is a PFIC, U.S. Holders will be deemed
to own their proportionate share of any subsidiary of the Company which is also
a PFIC (a ‘‘Subsidiary PFIC’’), and will be subject to U.S. federal income tax
on (i) a distribution on the shares of a Subsidiary PFIC or (ii) a disposition
of shares of a Subsidiary PFIC, both as if the holder directly held the shares
of such Subsidiary PFIC.
The
Company does not believe that it was a PFIC for the taxable year ended December
31, 2008, and based on current business plans and financial expectations, the
Company does not expect to be a PFIC for the current taxable year and for the
taxable year ending December 31, 2010. The determination of whether
the Company will be a PFIC for a taxable year depends, in part, on the
application of complex U.S. federal income tax rules, which are subject to
differing interpretations. In addition, whether the Company will be a
PFIC for its current taxable year depends on the assets and income of the
Company over the course of each such taxable year and, as a result, cannot be
predicted with certainty as of the date of this communication. Consequently,
there can be no assurance regarding the Company’s PFIC status for any taxable
year during which U.S. Holders hold common shares, and there can be no assurance
that the IRS will not challenge the determination made by the Company concerning
its PFIC status.
Under the
default PFIC rules, a U.S. Holder would be required to treat any gain recognized
upon a sale or disposition of our common shares as ordinary (rather than
capital), and any resulting U.S. federal income tax may be increased by an
interest charge which is not deductible by non-corporate U.S.
Holders. Rules similar to those applicable to dispositions will
generally apply to distributions in respect of our common shares which exceed a
certain threshold level.
While
there are U.S. federal income tax elections that sometimes can be made to
mitigate these adverse tax consequences (including, without limitation, the “QEF
Election” and the “Mark-to-Market Election”), such elections are available in
limited circumstances and must be made in a timely manner. Under
proposed Treasury Regulations, if a U.S. holder has an option, warrant, or other
right to acquire stock of a PFIC (such as the units or the warrants), such
option, warrant or right is considered to be PFIC stock subject to the default
rules of Section 1291 of the Code. However, the holding period for
the warrants Shares will begin on the date a U.S. Holder acquires the
units. This will impact the availability of the QEF Election and
Mark-to-Market Election with respect to the warrant shares. Thus, a
U.S. Holder will have to account for warrant shares and unit shares under the
PFIC rules and the applicable elections differently. U.S. Holders are
urged to consult their own tax advisers regarding the potential application of
the PFIC rules to the ownership and disposition of units, common shares,
warrants, and warrant shares, and the availability of certain U.S. tax elections
under the PFIC rules.
U.S.
Holders should be aware that, for each taxable year, if any, that the Company or
any Subsidiary PFIC is a PFIC, the Company can provide no assurances that it
will satisfy the record keeping requirements of a PFIC, or that it will make
available to U.S. Holders the information such U.S. Holders require to make a
QEF Election under Section 1295 of the Code with respect of the Company or any
Subsidiary PFIC. Each U.S. Holder should consult its own tax advisor
regarding the availability of, and procedure for making, a QEF Election with
respect to the Company and any Subsidiary PFIC.
Subject
to certain specific rules, foreign income and withholding taxes paid with
respect to any distribution in respect of stock in a PFIC should qualify for the
foreign tax credit. The rules relating to distributions by a PFIC are
complex, and a U.S. Holder should consult with its own tax advisor with respect
to any distribution received from a PFIC.
Information
Reporting; Backup Withholding Tax
Under
U.S. federal income tax law and Treasury regulations, certain categories of U.S.
Persons must file information returns with respect to their investment in, or
involvement in, a foreign corporation. Penalties for failure to file
certain of these information returns are substantial. U.S. Persons
who acquire units pursuant to the offering to which this communication relates
and hold unit shares, warrants and warrant shares should consult with their own
tax advisors regarding the requirements of filing information returns, and if
applicable, any Mark-to-Market election or QEF election.
Payments
made within the U.S., or by a U.S. payor or U.S. middleman, of dividends on, and
proceeds arising from certain sales or other taxable dispositions of the unit
shares and warrant shares may be subject to information reporting and backup
withholding tax, at the rate of 28%, if a U.S. Holder (a) fails to furnish such
U.S. Holder’s correct U.S. social security or other taxpayer identification
number (generally on Form W-9), (b) furnishes an incorrect U.S. taxpayer
identification number, (c) is notified by the IRS that such U.S. Holder has
previously failed to properly report items subject to backup withholding tax, or
(d) fails under certain circumstances to certify, under penalty of perjury, that
such U.S. Holder has furnished its correct U.S. taxpayer identification number
and that the IRS has not notified such U.S. Holder that it is subject to backup
withholding tax. However, U.S. Holders that are corporations
generally are excluded from these information reporting and backup withholding
tax rules. Any amounts withheld under the U.S. backup withholding tax
rules will be allowed as a credit against a U.S. Holder’s U.S. federal income
tax liability, if any, or will be refunded, if such U.S. Holder furnishes
required information to the IRS. Each U.S. Holder should consult its
own tax advisor regarding the information reporting and backup withholding tax
rules.