AMENDMENT NO. 2 TO COLOMBIAN PARTICIPATION AGREEMENT BY AND AMONG GRAN TIERRA ENERGY COLOMBIA LTD., GRAN TIERRA ENERGY INC. AND CROSBY CAPITAL, LLC DATED AS OF JULY 3, 2008
Exhibit
10.3
AMENDMENT
NO. 2
TO
BY
AND AMONG
GRAN
TIERRA ENERGY COLOMBIA LTD.,
GRAN
TIERRA ENERGY INC.
AND
XXXXXX
CAPITAL, LLC
DATED
AS
OF JULY 3, 2008
AMENDMENT
NO. 2
TO
This
Amendment No. 2 to Colombian Participation Agreement (this
“Amendment”)
is
effective as of July 3, 2008 by and among Gran
Tierra Energy Colombia Ltd., (the
“Partnership”),
a
Utah partnership (formerly known as Argosy
Energy International,
a Utah
limited partnership (“Argosy”)),
Gran
Tierra Energy Inc.,
a
Nevada corporation (“Gran
Tierra”),
and
Xxxxxx
Capital, LLC,
a Texas
limited liability company (“Xxxxxx”).
The
Partnership, Gran Tierra and Xxxxxx are each individually referred to herein
as
a “Party,”
and
collectively as the “Parties.”
All
capitalized terms not otherwise defined here in shall be given the meaning
assigned to such terms in that certain Colombian Participation Agreement, dated
as of June 22, 2006, by and among Argosy, Gran Tierra, and Xxxxxx (the
“Original
Participation Agreement”),
as
amended by Amendment No. 1 dated as of November 1, 2006 (“Amendment
No. 1”).
Recitals
Whereas,
the
Parties executed the Original Participation Agreement and Amendment No. 1.
Such
Original Participation Agreement amended by Amendment No. 1 is hereby referred
to as the “Agreement”.
Whereas,
Xxxxxx
has assigned certain of the participation rights in the Agreement to the members
of Xxxxxx pursuant to approved Assignments as reflected in the schedule attached
hereto as Exhibit
A
(“Xxxxxx
Members”).
Whereas,
the
Parties desire to amend the Agreement as set forth herein; and
Whereas,
pursuant to Section 13.4 of the Agreement, no modification or waiver of any
provision of the Agreement shall be effective unless set forth in writing signed
by the Parties.
Agreement
Now,
Therefore,
in
consideration of the covenants and promises herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
Parties hereto agree as follows:
1. All
references in the Agreement to “Argosy”
shall
be deleted and replaced with “the
Partnership”.
2. In
the event
that Gran Tierra closes a transaction with Solana Resources Limited (whether
through acquisition, plan of arrangement, merger, take-over bid or otherwise)
on
or before November 15, 2008, Gran Tierra shall (i) deliver to Xxxxxx Members
an
aggregate of 2,000,000 shares of Gran Tierra’s common stock (the “Shares”)
in a
private placement, and (ii) an executed Registration Rights Agreement with
each
Xxxxxx Member in such form attached hereto as Exhibit
C.
3. Upon
the
delivery of the Shares and Registration Rights Agreements, then Section 1.6
shall be deleted in its entirety and replaced with the following:
“Allowed
Adjustment Factors
means
(a) any change (increase or decrease) in royalty obligations of the Partnership
under the Colombian Association Contracts pursuant to applicable Colombian
laws,
rules or regulations, (b) any change (increase or decrease) in Ecopetrol
participation pursuant to the Colombian Association Contracts, and (c) any
increase in the Partnership’s Working Interest in any of the Historical
Properties excluding any of the Solana Resources Limited Historical Properties.
As a non-exclusive example of how the Partnership’s Working Interest in any of
the Historical Properties, excluding any of the Solana Resources Limited
Historical Properties, could increase, the Partnership’s Working Interest would
increase due any of the following events: (a) if other Working Interest owners
in the Historical Properties, excluding any of the Solana Resources Limited
Historical Properties, do not participate in a new discovery pursuant to a
joint
operating agreement; (b) any increase in the Partnership’s Working Interest or
rights as a matter of law relating to the Historical Properties, excluding
any
of the Solana Resources Limited Historical Properties, arising from any legal
proceedings, actions or remedies; and (c) direct or indirect acquisition of
another party’s interest or rights in the Historical Properties, excluding any
of the Solana Resources Limited Historical Properties, whether through an
assignment, partnership or otherwise.”
4. Section
1.58
shall be deleted in its entirety and replaced with the following and all
references in the Agreement to “Subsequent
Argosy Sale”
shall
be replaced with “Subsequent
Partnership Sale”:
1.58“Subsequent
Partnership Sale
has the
meaning set forth in Section
8.2.”
5. Section
13.8
shall be deleted in its entirety and replaced with the following:
“Further
Assurances.
Each
Party agrees to execute any and all documents reasonably required to effectuate
the purposes and intent of this Agreement, at present or in the future.
Specifically and without limiting the prior sentence, if the law of Colombia
in
the future provides for a direct assignment of the Base Overriding Royalty
from
the Historical Properties, excluding any of the Solana Resources Limited
Historical Properties, at
the
request of Xxxxxx, the Partnership shall make such assignment to the Xxxxxx
Members or their permitted assignees.
6. Upon
delivery
of the Shares and the Registration Rights Agreements, then a new Section 1.62
shall be added as follows:
1.62 “Solana
Resources Limited Historical Properties
shall
mean all of the interests in the Historical Properties reflected in Exhibit
B
hereto.”
7. ection
13.1
of the Agreement shall be amended by deleting the reference and address for
XxXxxxx Xxxxx LLP and replacing them with the following:
“Cooley
Godward Kronish LLP
5
Palo
Alto Square
0000
Xx
Xxxxxx Xxxx
Xxxx
Xxxx, XX 00000
Attn:
Xxxxx X. Xxxxxx, Esq.
Phone:
(000) 000-0000
Facsimile
No.: 650-849-7400
xxxxxxx@xxxxxx.xxx”
Section
13.1 of the Agreement shall also be amended by deleting the reference and
address for Glast, Xxxxxxxx & Xxxxxx, P.C. and replacing them with the
following:
“Xxxxxxx
Xxxxxx
Bond
& Xxxxxx LLP
0000
Xxxxxxx
Xxxxxxx,
Xxxxx 00000
Phone:
(000) 000-0000
Fax:
(000) 000-0000
8. References
to
the “Agreement” in the Original Participation Agreement shall be deemed to
include the Original Participation Agreement, as amended by Amendment No. 1
and
Amendment No. 2. Except as expressly modified or otherwise as set forth herein,
the terms and conditions of the Original Participation Agreement remain in
full
force and effect.
9. This
Amendment No. 2 does not alter or amend the Second Amended Extension Agreement
dated May 28, 2008 between the Parties. Moreover, the Parties do not waive
any
of their rights pursuant to the Agreement or the Second Amended Extension
Agreement.
10. Xxxxxx
hereby
acknowledges that the existence of this Amendment No. 2 and the information
contained herein is confidential information within the meaning of Section
7.6
of the Original Participation Agreement, and that the terms and conditions
of
Section 7.6 will apply to this Amendment No. 2.
11. The
Parties
will be responsible for and pay all of its own costs and expenses incurred
at
any time in connection with Amendment No. 2.
12. This
Amendment No. 2 supersedes the letter agreement amongst the parties dated June
23, 2008.
13. This
Amendment No. 2 may be executed in one or more counterparts, all of which shall
be considered one and the same agreement and shall become effective when one
or
more counterparts have been signed by each of the Parties and delivered to
the
other Parties, it being understood that all Parties need not sign the same
counterpart.
14. A
facsimile, telecopy or other reproduction of this Amendment No. 2 may be
executed by one or more parties to this Amendment No. 2, and an executed copy
of
this Amendment No. 2 may be delivered by one or more parties to this Amendment
No. 2 by facsimile or similar electronic transmission device pursuant to which
the signature of or on behalf of such party can be seen, and such execution
and
delivery shall be considered valid, binding and effective for all purposes.
At
the request of any party to this Amendment No. 2, all parties to this Amendment
No. 2 agree to execute an original of this Amendment No. 2 as well as any
facsimile, telecopy or other reproduction of this Amendment No.
2.
In
Witness Whereof,
each of
the undersigned has caused this Agreement to be executed as of the date first
written above.
| Gran Tierra Energy Colombia Ltd. | |
|
By:
|
Argosy
Energy Corporation, General Partner
|
|
By:
|
/s/
Xxxx Xxxxxxxx
|
|
Name:
Xxxx Xxxxxxxx
|
|
|
Title:
President
|
|
|
Gran
Tierra Energy Inc.
|
|
|
By:
|
/s/
Xxxx Xxxxxxxx
|
|
Name:
Xxxx Xxxxxxxx
|
|
|
Title:
President and Chief Executive Officer
|
|
|
Xxxxxx
Capital, LLC
|
|
|
By:
|
/s/
Xxx Xxxxx Xxxxxxx
|
|
Title:
President
|
|
Exhibit
A
to
the Amendment No. 2
XXXXXX
MEMBERS
|
Xxxxxx Member
|
Assignment Interest
|
Allocated Shares
|
|||||
|
LJB
Partners, L.P.
|
45.125
|
%
|
902,500
|
||||
|
Xxxxxxxxxx
Living Trust
|
11.466
|
%
|
229,320
|
||||
|
NTC
& Co., Trustee, FBO Xxxxxx X. Xxxxxxxxxx Xxxx/XXX Account
00000000
|
14.659
|
%
|
293,180
|
||||
|
NTC
& Co., Trustee, FBO Xxxxxx X. Xxxxxxxxxx Xxxx/XXX Account
00000000
|
19.000
|
%
|
380,000
|
||||
|
Bunker
Hill Resources, LLC
|
9.750
|
%
|
195,000
|
||||
|
Total
|
100.000
|
%
|
2,000,000
|
||||
Exhibit
B
to
the Amendment No. 2
SOLANA
RESOURCES LIMITED HISTORICAL PROPERTIES
|
Contract Area
|
Field
|
Solana Working
Interest
|
Solana Net
Revenue Interest
|
|||||||
|
Xxxxxxx
|
Inchiyaco
|
9.17350
|
%
|
7.33880
|
%
|
|||||
|
Guayuyaco
|
All
Fields
|
35.00000
|
%
|
32.20000
|
%
|
|||||
|
Chaza
|
All
Fields
|
50.00000
|
%
|
46.00000
|
%
|
|||||
Exhibit
C
to
the Amendment No. 2
REGISTRATION
RIGHTS AGREEMENT
This
Registration Rights Agreement (this “Agreement”)
is
made and entered into as of ____________ ___, 2008, among Gran Tierra Energy
Inc., a Nevada corporation (“Gran
Tierra,”
or
the
“Company”),
and
the purchaser signatory hereto (the “Purchaser”).
This
Agreement is made pursuant to Amendment No. 2 to Colombian Participation
Agreement, dated as of July __, 2008 among Gran Tierra, Gran Tierra Energy
Colombia Ltd., a Utah partnership and Xxxxxx Capital, LLC (as such Colombian
Participation Agreement is so amended, including by Amendment
No. 1 thereto dated as of November 1, 2006, the
“Participation
Agreement”).
The
Company and Purchaser hereby agree as follows:
Definitions.
As used
in this Agreement, the following terms shall have the following
meanings:
“Advice”
shall
have the meaning set forth in Section 6(c).
“Common
Stock”
means
common stock, par value $0.001 per share, of Gran Tierra.
“Effectiveness
Period”
shall
have the meaning set forth in Section 2.
“Filing
Date”
means
as soon as practicable after issuance of the Shares.
“Holder”
or
“Holders”
means
the holder or holders, as the case may be, from time to time of Registrable
Securities.
“Holders’
Counsel”
means
the one counsel to the Holders as set forth in Section 6(o).
“Indemnified
Party”
shall
have the meaning set forth in Section 5(c).
“Indemnifying
Party”
shall
have the meaning set forth in Section 5(c).
“Losses”
shall
have the meaning set forth in Section 5(a).
“Plan
of Distribution”
shall
have the meaning set forth in Section 2.
“Prospectus”
means
the prospectus included in a Registration Statement (including, without
limitation, a prospectus that includes any information previously omitted from
a
prospectus filed as part of an effective registration statement in reliance
upon
Rule 430A promulgated under the Securities Act), as amended or supplemented
by
any prospectus supplement, with respect to the terms of the offering of any
portion of the Registrable Securities covered by a Registration Statement,
and
all other amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
“Registrable
Securities”
means
all of (i) the Shares issuable, and (ii) any shares of Common Stock issued
or
issuable upon any stock split, dividend or other distribution, recapitalization
or similar event with respect to the foregoing.
“Registration
Statement”
means
the registration statements required to be filed hereunder and any additional
registration statements contemplated by Section 3(c), including (in each case)
the Prospectus, amendments and supplements to such registration statement or
Prospectus, including pre- and post-effective amendments, all exhibits thereto,
and all material incorporated by reference or deemed to be incorporated by
reference in such registration statement.
“Rule
415”
means
Rule 415 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 purpose and
effect as such Rule.
“Rule
424”
means
Rule 424 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 purpose and
effect as such Rule.
“Securities
Act”
means
the Securities Act of 1933, as amended.
“Selling
Shareholder Questionnaire”
shall
have the meaning set forth in Section 3(a).
“Shares”
means
2,000,000 shares of Common Stock issued in the aggregate to the
Holders.
Shelf
Registration.
On
or
prior to the Filing Date, Gran Tierra shall prepare and file with the Commission
a “Shelf” Registration Statement covering the resale of the Registrable
Securities on such Filing Date for an offering to be made on a continuous basis
pursuant to Rule 415. The Registration Statement shall be on Form S-3 (except
if
Gran Tierra is not then eligible to register for resale the Registrable
Securities on Form S-3, in which case such registration shall be on another
appropriate form in accordance herewith) and shall contain (unless otherwise
directed by at least a 51% majority in interest of the Holders) substantially
the “Plan
of Distribution”
attached hereto as Annex
A,
as may
be revised by the Company in its reasonable discretion in response to comments
received by the Commission or to conform the Plan of Distribution with a plan
of
distribution contained in a registration statement with which the Registration
Statement is combined. Subject to the terms of this Agreement, Gran Tierra
shall
use its reasonable best efforts to cause a Registration Statement to be declared
effective under the Securities Act as promptly as possible after the filing
thereof, and shall use its reasonable best efforts to keep such Registration
Statement continuously effective under the Securities Act until all Registrable
Securities covered by such Registration Statement have been sold, or may be
sold
without volume restrictions pursuant to Rule 144, as determined by the counsel
to Gran Tierra pursuant to a written opinion letter to such effect, addressed
and acceptable to Gran Tierra’s transfer agent (the “Effectiveness
Period”).
The
Company agrees to include in any such Registration Statement all information
that the Holders of Registrable Securities may reasonably request. The Company
shall telephonically request effectiveness of a Registration Statement as of
5:00 pm Eastern Time on a Trading Day. The Company shall immediately notify
the
Holders via facsimile of the effectiveness of a Registration Statement on the
same Trading Day that Gran Tierra telephonically confirms effectiveness with
the
Commission, which shall be the date requested for effectiveness of a
Registration Statement. The Company shall, by 9:30 am Eastern Time on the
Trading Day after the Effective Date (as defined in the Participation
Agreement), file a final Prospectus with the Commission as required by Rule
424.
Registration
Procedures
In
connection with Gran Tierra’s registration obligations hereunder, Gran Tierra
shall:
Not
less
than five Trading Days prior to the filing of each Registration Statement and
not less than 1 Trading Day prior to the filing of any related Prospectus or
any
amendment or supplement thereto (including any document that would be
incorporated or deemed to be incorporated therein by reference), Gran Tierra
shall, (i) furnish to each Holder and to Holders’ Counsel copies of all such
documents proposed to be filed, which documents (other than those incorporated
or deemed to be incorporated by reference) will be subject to the review of
such
Holders and Holders’ Counsel and (ii) cause its officers and directors, counsel
and independent certified public accountants to respond to such inquiries as
shall be necessary, in the reasonable opinion of Holders’ Counsel, to conduct a
reasonable investigation within the meaning of the Securities Act. The Company
shall not file a Registration Statement or any such Prospectus or any amendments
or supplements thereto to which the Holders of a majority of the Registrable
Securities shall reasonably object in good faith, provided that, Gran Tierra
is
notified of such objection in writing no later than five (5) Trading Days after
the Holders have been so furnished copies of a Registration Statement or 1
Trading Day after the Holders have been so furnished copies of any related
Prospectus or amendment or supplement thereto. Each Holder agrees to furnish
to
Gran Tierra a completed Questionnaire in the form attached to this Agreement
as
Annex B (a “Selling
Shareholder Questionnaire”)
not
less than two Trading Days prior to the Filing Date or by the end of the fourth
Trading Day following the date on which such Holder receives draft materials
in
accordance with this Section.
(i)
Prepare and file with the Commission such amendments, including post-effective
amendments, to a Registration Statement and the Prospectus used in connection
therewith as may be necessary to keep a Registration Statement continuously
effective as to the applicable Registrable Securities for the Effectiveness
Period and prepare and file with the Commission such additional Registration
Statements in order to register for resale under the Securities Act all of
the
Registrable Securities; (ii) cause the related Prospectus to be amended or
supplemented by any required Prospectus supplement (subject to the terms of
this
Agreement), and as so supplemented or amended to be filed pursuant to Rule
424;
(iii) respond as promptly as reasonably possible to any comments received from
the Commission with respect to a Registration Statement or any amendment thereto
and as promptly as reasonably possible provide the Holders and Holders’ Counsel
notice of any such comments and true and complete copies of all correspondence
from and to the Commission relating to a Registration Statement (provided that
Gran Tierra may excise any information contained therein which would constitute
material non-public information as to any Holder which has not executed a
confidentiality agreement with Gran Tierra); and (iv) comply in all material
respects with the provisions of the Securities Act and the Exchange Act with
respect to the disposition of all Registrable Securities covered by a
Registration Statement during the applicable period in accordance (subject
to
the terms of this Agreement) with the intended methods of disposition by the
Holders thereof set forth in such Registration Statement as so amended or in
such Prospectus as so supplemented.
Notify
the Holders of Registrable Securities to be sold (which notice shall, pursuant
to clauses (iii) through (vi) hereof, be accompanied by an instruction to
suspend the use of the Prospectus until the requisite changes have been made)
as
promptly as reasonably possible (and, in the case of (i)(A) below, not less
than
1 Trading Day prior to such filing) and (if requested by any such Person)
confirm such notice in writing no later than one Trading Day following the
day
(i)(A) when a Prospectus or any Prospectus supplement or post-effective
amendment to a Registration Statement is proposed to be filed; (B) when the
Commission notifies Gran Tierra whether there will be a “review” of such
Registration Statement and whenever the Commission comments in writing on such
Registration Statement; and (C) with respect to a Registration Statement or
any
post-effective amendment, when the same has become effective; (ii) of any
request by the Commission or any other Federal or state governmental authority
for amendments or supplements to a Registration Statement or Prospectus or
for
additional information; (iii) of the issuance by the Commission or any other
federal or state governmental authority of any stop order suspending the
effectiveness of a Registration Statement covering any or all of the Registrable
Securities or the initiation of any Proceedings for that purpose; (iv) of the
receipt by Gran Tierra of any notification with respect to the suspension of
the
qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction, or the initiation or threatening of
any
Proceeding for such purpose; (v) of the occurrence of any event or passage
of
time that makes the financial statements included in a Registration Statement
ineligible for inclusion therein or any statement made in a Registration
Statement or Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or that
requires any revisions to a Registration Statement, Prospectus or other
documents so that, in the case of a Registration Statement or the Prospectus,
as
the case may be, it 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, in light of the circumstances under which they
were
made, not misleading; and (vi) the occurrence or existence of any pending
corporate development with respect to Gran Tierra that Gran Tierra believes
may
be material and that, in the determination of Gran Tierra, makes it not in
the
best interest of Gran Tierra to allow continued availability of a Registration
Statement or Prospectus; provided that any and all of such information shall
remain confidential to each Holder until such information otherwise becomes
public, unless disclosure by a Holder is required by law.
Use
its
reasonable best efforts to avoid the issuance of, or, if issued, obtain the
withdrawal of (i) any order suspending the effectiveness of a Registration
Statement, or (ii) any suspension of the qualification (or exemption from
qualification) of any of the Registrable Securities for sale in any
jurisdiction, at the earliest practicable moment.
Furnish
to each Holder and Holders’ Counsel, without charge, at least one conformed copy
of each such Registration Statement and each amendment thereto, including
financial statements and schedules, all documents incorporated or deemed to
be
incorporated therein by reference to the extent requested by such Person, and
all exhibits to the extent requested by such Person (including those previously
furnished or incorporated by reference) promptly after the filing of such
documents with the Commission.
Subject
to the terms of this Agreement, Gran Tierra hereby consents to the use of such
Prospectus and each amendment or supplement thereto by each of the selling
Holders in connection with the offering and sale of the Registrable Securities
covered by such Prospectus and any amendment or supplement thereto, except
after
the giving of any notice pursuant to Section 3(c).
Prior
to
any resale of Registrable Securities by a Holder, use its reasonable best
efforts to register or qualify or cooperate with the selling Holders in
connection with the registration or qualification (or exemption from the
Registration or qualification) of such Registrable Securities for the resale
by
the Holder under the securities or Blue Sky laws of such jurisdictions within
the United States as any Holder reasonably requests in writing, to keep each
registration or qualification (or exemption therefrom) effective during the
Effectiveness Period and to do any and all other acts or things reasonably
necessary to enable the disposition in such jurisdictions of the Registrable
Securities covered by each Registration Statement; provided, that Gran Tierra
shall not be required to qualify generally to do business in any jurisdiction
where it is not then so qualified, subject Gran Tierra to any material tax
in
any such jurisdiction where it is not then so subject or file a general consent
to service of process in any such jurisdiction.
Upon
the
occurrence of any event contemplated by this Section 3, as promptly as
reasonably possible under the circumstances taking into account Gran Tierra’s
good faith assessment of any adverse consequences to Gran Tierra and its
stockholders of the premature disclosure of such event, prepare a supplement
or
amendment, including a post-effective amendment, to a Registration Statement
or
a supplement to the related Prospectus or any document incorporated or deemed
to
be incorporated therein by reference, and file any other required document
so
that, as thereafter delivered, neither a Registration Statement nor such
Prospectus will contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. If Gran Tierra notifies the Holders in accordance with clauses
(iii) through (vi) of Section 3(c) above to suspend the use of any Prospectus
until the requisite changes to such Prospectus have been made, then the Holders
shall suspend use of such Prospectus. The Company will use its reasonable best
efforts to ensure that the use of the Prospectus may be resumed as promptly
as
is practicable. The Company shall be entitled to exercise its right under this
Section 3(h) to suspend the availability of a Registration Statement and
Prospectus, for a period not to exceed 60 calendar days (which need not be
consecutive days) in any 12 month period.
Comply
with all applicable rules and regulations of the Commission.
The
Company may require each selling Holder to furnish to Gran Tierra a certified
statement as to the number of shares of Common Stock beneficially owned by
such
Holder and, if required by the Commission, the natural persons thereof that
have
voting and dispositive control over the Shares.
Registration
Expenses.
All
fees and expenses incident to the performance of or compliance with this
Agreement by Gran Tierra shall be borne by Gran Tierra whether or not any
Registrable Securities are sold pursuant to a Registration Statement. The fees
and expenses referred to in the foregoing sentence shall include, without
limitation, (i) all registration and filing fees (including, without limitation,
fees and expenses (A) with respect to filings required to be made with any
Trading Market on which the Common Stock is then listed for trading, (B) in
compliance with applicable state securities or Blue Sky laws reasonably agreed
to by Gran Tierra in writing (including, without limitation, fees and
disbursements of counsel for Gran Tierra in connection with Blue Sky
qualifications or exemptions of the Registrable Securities), (C) if not
previously paid by Gran Tierra in connection with an Issuer Filing, with respect
to any filing that may be required to be made by any broker through which a
Holder intends to make sales of Registrable Securities with NASD Regulation,
Inc. pursuant to the NASD Rule 2710, so long as the broker is receiving no
more
than a customary brokerage commission in connection with such sale, and (D)
fees
and expenses of Gran Tierra’s counsel and accountants and the reasonable fees
and expenses of Holders’ Counsel (not to exceed $5,000 in the aggregate), (ii)
printing expenses (including, without limitation, expenses of printing
certificates for Registrable Securities, (iii) messenger, telephone and delivery
expenses, (iv) fees and disbursements of counsel for Gran Tierra, (v) Securities
Act liability insurance, if Gran Tierra so desires such insurance, and (vi)
fees
and expenses of all other Persons retained by Gran Tierra in connection with
the
consummation of the transactions contemplated by this Agreement. In addition,
Gran Tierra shall be responsible for all of its internal expenses incurred
in
connection with the consummation of the transactions contemplated by this
Agreement (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense
of
any annual audit and the fees and expenses incurred in connection with the
listing of the Registrable Securities on any securities exchange as required
hereunder. In no event shall Gran Tierra be responsible for any broker or
similar commissions of any Holder, which shall be borne by the Holders in
proportion to the number of Shares sold by each such Holder, or for any legal
fees or other costs of the Holders other than as specifically set forth in
(i)(D) above.
Indemnification
Indemnification
by Gran Tierra.
Gran
Tierra shall, notwithstanding any termination of this Agreement, indemnify
and
hold harmless the each Holder, the officers, directors, members, partners,
agents, brokers (including brokers who offer and sell Registrable Securities
as
principal as a result of a pledge or any failure to perform under a margin
call
of Common Stock), investment advisors and 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 each of them, each Person who
controls any such Holder (within the meaning of Section 15 of the Securities
Act
or Section 20 of the Exchange Act) and the officers, directors, members,
shareholders, partners, agents and 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 each such controlling Person, to
the
fullest extent permitted by applicable law, from and against any and all losses,
claims, damages, liabilities, costs (including, without limitation, reasonable
attorneys’ fees) and expenses related to actions or proceedings that are
commenced or overtly threatened (collectively, “Losses”),
as
incurred, arising out of or relating to (1) any untrue or alleged untrue
statement of a material fact contained in a Registration Statement, any
Prospectus or any form of prospectus or in any amendment or supplement thereto
or in any preliminary prospectus, or arising out of or relating to any omission
or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein (in the case of any Prospectus or
form
of prospectus or supplement thereto, in light of the circumstances under which
they were made) not misleading, or (2) any violation or alleged violation by
Gran Tierra of the Securities Act, Exchange Act or any state securities law,
or
any rule or regulation thereunder, in connection with the performance of its
obligations under this Agreement, except to the extent, but only to the extent,
that (i) such untrue statements or omissions are based solely upon information
regarding such Holder furnished in writing to Gran Tierra by such Holder
expressly for use therein, or to the extent that such information relates to
such Holder or such Holder’s proposed method of distribution of Registrable
Securities and was reviewed and expressly approved in writing by such Holder
expressly for use in a Registration Statement, such Prospectus or such form
of
Prospectus or in any amendment or supplement thereto (it being understood that
the Holder has approved Annex A hereto for this purpose) or (ii) in the case
of
an occurrence of an event of the type specified in Section 3(c)(iii)-(vi),
the
use by such Holder of an outdated or defective Prospectus after Gran Tierra
has
notified such Holder in writing that the Prospectus is outdated or defective
and
prior to the receipt by such Holder of the Advice contemplated in Section 6(d).
The Company shall notify the Holders promptly of the institution, threat or
assertion of any Proceeding arising from or in connection with the transactions
contemplated by this Agreement of which Gran Tierra is aware.
Indemnification
by Holders.
Each
Holder shall, jointly and severally, indemnify and hold harmless Gran Tierra,
its directors, officers, agents and employees, each Person who controls Gran
Tierra (within the meaning of Section 15 of the Securities Act and Section
20 of
the Exchange Act), and the directors, officers, agents or employees of such
controlling Persons, to the fullest extent permitted by applicable law, from
and
against all Losses, as incurred, to the extent arising out of or based solely
upon: (x) such Holder’s failure to comply with the prospectus delivery
requirements of the Securities Act or (y) any untrue or alleged untrue statement
of a material fact contained in any Registration Statement, any Prospectus,
or
any form of prospectus, or in any amendment or supplement thereto or in any
preliminary prospectus, or arising out of or relating to any omission or alleged
omission of a material fact required to be stated therein or necessary to make
the statements therein not misleading (i) to the extent, but only to the extent,
that such untrue statement or omission is contained in any information so
furnished in writing by such Holder to Gran Tierra specifically for inclusion
in
such Registration Statement or such Prospectus or (ii) to the extent that such
information relates to such Holder’s proposed method of distribution of
Registrable Securities and was reviewed and expressly approved in writing by
such Holder expressly for use in a Registration Statement (it being understood
that the Holder has approved Annex A hereto for this purpose), such Prospectus
or such form of Prospectus or in any amendment or supplement thereto or (iii)
in
the case of an occurrence of an event of the type specified in Section
3(c)(iii)-(vi), the use by such Holder of an outdated or defective Prospectus
after Gran Tierra has notified such Holder in writing that the Prospectus is
outdated or defective and prior to the receipt by such Holder of the Advice
contemplated in Section 6(d). In no event shall the liability of any selling
Holder hereunder be greater in amount than the dollar amount of the net proceeds
received by such Holder upon the sale of the Registrable Securities giving
rise
to such indemnification obligation.
Conduct
of Indemnification Proceedings.
If any
Proceeding shall be brought or asserted against any Person entitled to indemnity
hereunder (an “Indemnified
Party”),
such
Indemnified Party shall promptly notify the Person from whom indemnity is sought
(the “Indemnifying
Party”)
in
writing, and the Indemnifying Party shall have the right to assume the defense
thereof, including the employment of counsel reasonably satisfactory to the
Indemnified Party and the payment of all fees and expenses incurred in
connection with defense thereof; provided, that the failure of any Indemnified
Party to give such notice shall not relieve the Indemnifying Party of its
obligations or liabilities pursuant to this Agreement, except (and only) to
the
extent that it shall be finally determined by a court of competent jurisdiction
(which determination is not subject to appeal or further review) that such
failure shall have prejudiced the Indemnifying Party.
An
Indemnified Party shall have the right to employ separate counsel in any such
Proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Party or Parties
unless: (1) the Indemnifying Party has agreed in writing to pay such fees and
expenses; (2) the Indemnifying Party shall have failed promptly to assume the
defense of such Proceeding and to employ counsel reasonably satisfactory to
such
Indemnified Party in any such Proceeding; or (3) the named parties to any such
Proceeding (including any impleaded parties) include both such Indemnified
Party
and the Indemnifying Party, and counsel to the Indemnified Party shall
reasonably believe that a material conflict of interest is likely to exist
if
the same counsel were to represent such Indemnified Party and the Indemnifying
Party (in which case, if such Indemnified Party notifies the Indemnifying Party
in writing that it elects to employ separate counsel at the expense of the
Indemnifying Party, the Indemnifying Party shall not have the right to assume
the defense thereof and the reasonable fees and expenses of no more than one
separate counsel shall be at the expense of the Indemnifying Party). The
Indemnifying Party shall not be liable for any settlement of any such Proceeding
effected without its written consent, which consent shall not be unreasonably
withheld or delayed. No Indemnifying Party shall, without the prior written
consent of the Indemnified Party, effect any settlement of any pending
Proceeding in respect of which any Indemnified Party is a party, unless such
settlement includes an unconditional release of such Indemnified Party from
all
liability on claims that are the subject matter of such Proceeding.
Subject
to the terms of this Agreement, all reasonable fees and expenses of the
Indemnified Party (including reasonable fees and expenses to the extent incurred
in connection with investigating or preparing to defend such Proceeding in
a
manner not inconsistent with this Section) shall be paid to the Indemnified
Party, as incurred, within ten Trading Days of written notice thereof to the
Indemnifying Party; provided,
that
the Indemnified Party shall promptly reimburse the Indemnifying Party for that
portion of such fees and expenses applicable to such actions for which such
Indemnified Party is judicially determined to be not entitled to indemnification
hereunder.
Contribution.
If the
indemnification under Section 5(a) or 5(b) is unavailable to an Indemnified
Party or insufficient to hold an Indemnified Party harmless for any Losses,
then
each Indemnifying Party shall contribute to the amount paid or payable by such
Indemnified Party, in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party and Indemnified Party in connection with the
actions, statements or omissions that resulted in such Losses as well as any
other relevant equitable considerations. The relative fault of such Indemnifying
Party and Indemnified Party shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission of a material
fact,
has been taken or made by, or relates to information supplied by, such
Indemnifying Party or Indemnified Party, and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
action, statement or omission. The amount paid or payable by a party as a result
of any Losses shall be deemed to include, subject to the limitations set forth
in this Agreement, any reasonable attorneys’ or other fees or expenses incurred
by such party in connection with any Proceeding to the extent such party would
have been indemnified for such fees or expenses if the indemnification provided
for in this Section was available to such party in accordance with its
terms.
The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 5(d) were determined by pro rata allocation or by
any
other method of allocation that does not take into account the equitable
considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 5(d), no Holder shall be required
to contribute, in the aggregate, any amount in excess of the amount by which
the
net proceeds actually received by such Holder from the sale of the Registrable
Securities subject to the Proceeding exceeds the amount of any damages that
such
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission, except in the case of fraud
by
such Holder.
The
indemnity and contribution agreements contained in this Section are in addition
to any liability that the Indemnifying Parties may have to the Indemnified
Parties.
Miscellaneous
Remedies.
In the
event of a breach by Gran Tierra or by a Holder, of any of their respective
obligations under this Agreement, each Holder or Gran Tierra, as the case may
be, in addition to being entitled to exercise all rights granted by law and
under this Agreement, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement. The Company and each
Holder agree that monetary damages would not provide adequate compensation
for
any losses incurred by reason of a breach by it of any of the provisions of
this
Agreement and hereby further agrees that, in the event of any action for
specific performance in respect of such breach, it shall not assert or shall
waive the defense that a remedy at law would be adequate.
Compliance.
Each
Holder covenants and agrees that it will comply with the prospectus delivery
requirements of the Securities Act as applicable to it in connection with sales
of Registrable Securities pursuant to a Registration Statement.
Discontinued
Disposition.
Each
Holder agrees by its acquisition of Registrable Securities that, upon receipt
of
a notice from Gran Tierra of the occurrence of any event of the kind described
in Section 3(c), such Holder will forthwith discontinue disposition of such
Registrable Securities under a Registration Statement until it is advised in
writing (the “Advice”)
by
Gran Tierra that the use of the applicable Prospectus (as it may have been
supplemented or amended) may be resumed. The Company will use its reasonable
best efforts to ensure that the use of the Prospectus may be resumed as promptly
as it practicable.
Amendments
and Waivers.
The
provisions of this Agreement, including the provisions of this sentence, may
not
be amended, modified or supplemented, and waivers or consents to departures
from
the provisions hereof may not be given, unless the same shall be in writing
and
signed by Gran Tierra and each Holder of the then outstanding Registrable
Securities. Notwithstanding the foregoing, a waiver or consent to depart from
the provisions hereof with respect to a matter that relates exclusively to
the
rights of Holders and that does not directly or indirectly affect the rights
of
other Holders may be given by Holders of all of the Registrable Securities
to
which such waiver or consent relates; provided,
however,
that
the provisions of this sentence may not be amended, modified, or supplemented
except in accordance with the provisions of the immediately preceding
sentence.
Notices.
Any and
all notices or other communications or deliveries required or permitted to
be
provided hereunder shall be delivered as set forth in the Participation
Agreement.
Successors
and Assigns.
This
Agreement shall inure to the benefit of and be binding upon the successors
and
permitted assigns of each of the parties and shall inure to the benefit of
each
Holder. The Company may not assign its rights (except by merger) or obligations
hereunder without the prior written consent of all of the Holders of the
then-outstanding Registrable Securities. Each Holder may assign their respective
rights hereunder in the manner and to the Persons as permitted under the
Participation Agreement.
Execution
and Counterparts.
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.
Governing
Law.
All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be determined in accordance with the provisions of
the
Participation Agreement.
Cumulative
Remedies.
The
remedies provided herein are cumulative and not exclusive of any other remedies
provided by law.
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.
Headings.
The
headings in this Agreement 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.
Adjustments
affecting Registrable Securities.
Gran
Tierra will not effect or permit to occur any combination or subdivision of
its
Common Stock which would adversely affect the ability of the Holders to include
the Registrable Securities in any registration of securities contemplated by
this Agreement or the marketability of the Registrable Securities under any
such
registration.
Rule
144.
Gran
Tierra shall use its reasonable best efforts to file all reports required to
be
filed by it under the Securities Act and the Exchange Act and will take such
further action as any Holder may reasonably request, all to the extent required
from time to time to enable each Holder to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by Rule 144. Upon the request of any Holder, Gran Tierra will deliver
to the Holder a written statement as to whether it has complied with such
requirements. Upon receipt by the Company from a Holder of such documentation
as
the Company may reasonably request, the Company will promptly provide all
instructions and information required by the Company’s transfer agent in order
for the Holder to sell and transfer the Registrable Securities held by
it.
Holders
Counsel.
Holders’ Counsel shall initially be Bond & Xxxxxx, LLP, and may be changed
hereafter by written notice to the Company by Holders holding not less than
51%
of the Registrable Securities then outstanding.
Accredited
Investor Status.
Each
Holder represents and warrants that the Holder is an “accredited investor” as
that term is defined in Rule 501(a) promulgated under the Securities Act, and
has indicated such specific category of classification on the signature page
hereof with respect to such Holder.
Term.
This
Agreement shall terminate and be of no further force and effect upon the earlier
to occur of (i) the date upon which there are no longer any Registrable
Securities outstanding, and (ii) the date upon which all Registrable Securities
may be sold without volume restrictions pursuant to Rule 144 without regard
to
compliance with subparagraph (c)(1) thereof.
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement
as
of the date first written above.
|
Gran
Tierra Energy Inc., a Nevada Corporation
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
[SIGNATURE
PAGE OF HOLDERS FOLLOWS]
[SIGNATURE
PAGE OF HOLDERS]
Name
of
Purchaser: __________________________
Signature
of Authorized Signatory of Purchaser:
__________________________
Name
of
Authorized Signatory: _________________________
Title
of
Authorized Signatory: __________________________
Accredited
Investor Confirmation:
The
Purchaser represents and warrants that the Purchaser comes within each category
marked below. The Purchaser agrees to furnish any additional information that
the Company deems necessary in order to verify the answers set forth
below.
(PLEASE
XXXX EACH CATEGORY APPLICABLE TO YOU)
|
____
|
The
Purchaser is an individual (not a partnership, corporation, etc.)
whose
individual net worth, or joint net worth with his or her spouse,
presently
exceeds $1,000,000.
|
|
|
Explanation.
In
calculating net worth you may include equity in personal property
and real
estate, including your principal residence, cash, short-term investments,
stock and securities. Equity in personal property and real estate
should
be based on the fair market value of such property less debt secured
by
such property.
|
||
|
____
|
The
Purchaser is an individual (not a partnership, corporation, etc.)
who had
an income in excess of $200,000 in each of the two most recent years,
or
joint income with his or her spouse in excess of $300,000 in each
of those
years (in each case including foreign income, tax exempt income and
full
amount of capital gains and losses but excluding any income of other
family members and any unrealized capital appreciation), and has
a
reasonable expectation of reaching the same income level in the current
year.
|
|
|
____
|
The
Purchaser is a corporation, partnership, business trust, not formed
for
the purpose of acquiring the Securities, or an organization described
in
Section 501(c)(3) of the Internal Revenue Code of 1986, as amended
(the
“Code”), in each case with total assets in excess of
$5,000,000.
|
|
|
____
|
The
Purchaser is a trust with total assets in excess of $5,000,000, not
formed
for the specific purpose of acquiring the Securities, whose purchase
is
directed by a “sophisticated person” as described in Rule 506(b)(2)(ii)
promulgated under the Act.
|
|
|
____
|
|
The
Purchaser is an entity all the equity owners of which are “accredited
investors” within one or more of the above categories.
|
|
(describe
entity)
|
THE
PURCHASER UNDERSTANDS THAT GRAN TIERRA WILL RELY ON THE FOREGOING
REPRESENTATIONS TO, AMONG OTHER THINGS, ISSUE THE SHARES PURSUANT TO THE
PARTICIPATION AGREEMENT IN RELIANCE ON THE EXEMPTION FOR THE OFFER AND SALE
OF
THE SHARES FROM THE REQUIREMENT TO REGISTER THE SHARES UNDER THE
ACT.
[SIGNATURE
PAGES CONTINUE]
ANNEX
A
Plan
of Distribution
Each
Selling Stockholder (the “Selling
Stockholders”)
of the
common stock and any of their pledgees, assignees and successors-in-interest
may, from time to time, sell any or all of their shares of common stock on
the
American Stock Exchange or any other stock exchange, market or trading facility
on which the shares are traded or in private transactions. These sales may
be at
fixed or negotiated prices. A Selling Stockholder may use any one or more of
the
following methods when selling shares:
|
·
|
ordinary
brokerage transactions and transactions in which the broker-dealer
solicits purchasers;
|
|
·
|
block
trades in which the broker-dealer will attempt to sell the shares
as agent
but may position and resell a portion of the block as principal to
facilitate the transaction;
|
|
·
|
purchases
by a broker-dealer as principal and resale by the broker-dealer for
its
account;
|
|
·
|
an
exchange distribution in accordance with the rules of the applicable
exchange;
|
|
·
|
privately
negotiated transactions;
|
|
·
|
settlement
of short sales entered into after the effective date of the registration
statement of which this prospectus is a
part;
|
|
·
|
broker-dealers
may agree with the Selling Stockholders to sell a specified number
of such
shares at a stipulated price per
share;
|
|
·
|
through
the writing or settlement of options or other hedging transactions,
whether through an options exchange or otherwise;
|
|
·
|
a
combination of any such methods of sale;
or
|
|
·
|
any
other method permitted pursuant to applicable
law.
|
The
Selling Stockholders may also sell shares under Rule 144 under the Securities
Act of 1933, as amended (the “Securities
Act”),
if
available, rather than under this prospectus.
Broker-dealers
engaged by the Selling Stockholders may arrange for other brokers-dealers to
participate in sales. Broker-dealers may receive commissions or discounts from
the Selling Stockholders (or, if any broker-dealer acts as agent for the
purchaser of shares, from the purchaser) in amounts to be negotiated, but,
except as set forth in a supplement to this Prospectus, in the case of an agency
transaction not in excess of a customary brokerage commission in compliance
with
NASDR Rule 2440; and in the case of a principal transaction a markup or markdown
in compliance with NASDR IM-2440.
In
connection with the sale of the common stock or interests therein, the Selling
Stockholders may enter into hedging transactions with broker-dealers or other
financial institutions, which may in turn engage in short sales of the Common
Stock in the course of hedging the positions they assume. The Selling
Stockholders may also sell shares of the common stock short and deliver these
securities to close out their short positions, or loan or pledge the common
stock to broker-dealers that in turn may sell these securities. The Selling
Stockholders may also enter into option or other transactions with
broker-dealers or other financial institutions or the creation of one or more
derivative securities which require the delivery to such broker-dealer or other
financial institution of shares offered by this prospectus, which shares such
broker-dealer or other financial institution may resell pursuant to this
prospectus (as supplemented or amended to reflect such
transaction).
Each
Selling Stockholder has informed Gran Tierra that it is not an affiliate of
Gran
Tierra, or any broker dealer within the meaning of the Securities Act, and
does
not have any written or oral agreement or understanding, directly or indirectly,
with any person to distribute the Common Stock. In no event shall any
broker-dealer receive fees, commissions and markups which, in the aggregate,
would exceed eight percent (8%).
The
Company is required to pay certain fees and expenses incurred by Gran Tierra
incident to the registration of the shares. The Company has agreed to indemnify
the Selling Stockholders against certain losses, claims, damages and
liabilities, including liabilities under the Securities Act.
Because
Selling Stockholders may be deemed to be “underwriters” within the meaning of
the Securities Act, they will be subject to the prospectus delivery requirements
of the Securities Act including Rule 172 thereunder. In addition, any securities
covered by this prospectus which qualify for sale pursuant to Rule 144 under
the
Securities Act may be sold under Rule 144 rather than under this prospectus.
There is no underwriter or coordinating broker acting in connection with the
proposed sale of the resale shares by the Selling Stockholders.
We
agreed
to keep this prospectus effective until the earlier of (i) the date on which
the
shares may be resold by the Selling Stockholders without registration and
without regard to any volume limitations by reason of Rule 144 under the
Securities Act or any other rule of similar effect or (ii) all of the shares
have been sold pursuant to this prospectus or Rule 144 under the Securities
Act
or any other rule of similar effect. The resale shares will be sold only through
registered or licensed brokers or dealers if required under applicable state
securities laws. In addition, in certain states, the resale shares may not
be
sold unless they have been registered or qualified for sale in the applicable
state or an exemption from the registration or qualification requirement is
available and is complied with.
Under
applicable rules and regulations under the Exchange Act, any person engaged
in
the distribution of the resale shares may not simultaneously engage in market
making activities with respect to the common stock for the applicable restricted
period, as defined in Regulation M, prior to the commencement of the
distribution. In addition, the Selling Stockholders will be subject to
applicable provisions of the Exchange Act and the rules and regulations
thereunder, including Regulation M, which may limit the timing of purchases
and
sales of shares of the common stock by the Selling Stockholders or any other
person. We will make copies of this prospectus available to the Selling
Stockholders and have informed them of the need to deliver a copy of this
prospectus to each purchaser at or prior to the time of the
sale.
Annex
B
Gran
Tierra Energy Inc.
Selling
Securityholder Notice and Questionnaire
The
undersigned beneficial owner of common stock, par value $0.001 per share (the
“Common
Stock”),
of
Gran Tierra Energy Inc., a Nevada corporation (the “Gran
Tierra”),
(the
“Registrable
Securities”)
understands that Gran Tierra has filed or intends to file with the Securities
and Exchange Commission (the “Commission”)
a
registration statement on Form S-3 (the “Registration
Statement”)
for
the registration and resale under Rule 415 of the Securities Act of 1933, as
amended (the “Securities
Act”),
of
the Registrable Securities, in accordance with the terms of the several
Registration Rights Agreements, dated as of _________ ____, 2008 (the
“Registration
Rights Agreements”),
each
among Gran Tierra and the Purchaser named therein. Copies of the Registration
Rights Agreements are available from Gran Tierra upon request at the address
set
forth below. All capitalized terms not otherwise defined herein shall have
the
meanings ascribed thereto in the Registration Rights Agreements.
Certain
legal consequences arise from being named as a selling securityholder in the
Registration Statement and the related prospectus. Accordingly, holders and
beneficial owners of Registrable Securities are advised to consult their own
securities law counsel regarding the consequences of being named or not being
named as a selling securityholder in the Registration Statement and the related
prospectus.
NOTICE
The
undersigned beneficial owner (the “Selling
Securityholder”)
of
Registrable Securities hereby elects to include the Registrable Securities
owned
by it and listed below in Item 3 (unless otherwise specified under such Item
3)
in the Registration Statement.
The
undersigned hereby provides the following information to Gran Tierra and
represents and warrants that such information is accurate:
QUESTIONNAIRE
| 1. |
Name.
|
|
(a)
|
Full
Legal Name of Selling
Securityholder
|
|
(b)
|
Full
Legal Name of Registered Holder (if not the same as (a) above) through
which Registrable Securities Listed in Item 3 below are
held:
|
|
(c)
|
Full
Legal Name of Natural Control Person (which means a natural person
who
directly or indirectly alone or with others has power to vote or
dispose
of the securities covered by the
questionnaire):
|
2.
Address for Notices to Selling Securityholder:
|
Telephone:
|
|
|
Fax:
|
|
|
Contact Person:
|
|
3.
Beneficial Ownership of Registrable Securities:
|
(a)
|
Type
and Number of Registrable Securities beneficially owned (not including
the
Registrable Securities that are issuable pursuant to the Participation
Agreement):
|
4.
Broker-Dealer Status:
|
(a)
|
Are
you a broker-dealer?
|
|
Yes
¨
|
No
¨
|
|
(b)
|
If
“yes” to Section 4(a), did you receive your Registrable Securities as
compensation for investment banking services to Gran
Tierra.
|
|
Yes
¨
|
No
¨
|
|
Note:
|
If
no, the Commission’s staff has indicated that you should be identified as
an underwriter in the Registration
Statement.
|
|
(c)
|
Are
you an affiliate of a
broker-dealer?
|
|
Yes
¨
|
No
¨
|
|
(d)
|
If
you are an affiliate of a broker-dealer, do you certify that you
bought
the Registrable Securities in the ordinary course of business, and
at the
time of the purchase of the Registrable Securities to be resold,
you had
no agreements or understandings, directly or indirectly, with any
person
to distribute the Registrable
Securities?
|
|
Yes
¨
|
No
¨
|
|
Note:
|
If
no, the Commission’s staff has indicated that you should be identified as
an underwriter in the Registration
Statement.
|
5.
Beneficial Ownership of Other Securities of Gran Tierra Owned by the Selling
Securityholder.
Except
as set forth below in this Item 5, the undersigned is not the beneficial or
registered owner of any securities of Gran Tierra other than the Registrable
Securities listed above in Item 3.
|
(a)
|
Type
and Amount of Other Securities beneficially owned by the Selling
Securityholder:
|
6.
Relationships with Gran Tierra:
(a)
Except as set forth below, neither the undersigned nor any of its affiliates,
officers, directors or principal equity holders (owners of 5% of more of the
equity securities of the undersigned) has held any position or office or has
had
any other material relationship with Gran Tierra (or its predecessors or
affiliates) during the past three years.
State
any
exceptions here:
|
(b)
|
Are
you an affiliate of Gran Tierra (as that term is defined in Rule
144)?
|
Yes
o No
o
The
undersigned agrees to promptly notify Gran Tierra of any inaccuracies or changes
in the information provided herein that may occur subsequent to the date hereof
at any time while the Registration Statement remains effective.
By
signing below, the undersigned consents to the disclosure of the information
contained herein in its answers to Items 1 through 6 and the inclusion of such
information in the Registration Statement and the related prospectus and any
amendments or supplements thereto. The undersigned understands that such
information will be relied upon by Gran Tierra in connection with the
preparation or amendment of the Registration Statement and the related
prospectus.
IN
WITNESS WHEREOF the undersigned, by authority duly given, has caused this Notice
and Questionnaire to be executed and delivered either in person or by its duly
authorized agent.
|
Beneficial Owner: ________________________________________
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
PLEASE
FAX A COPY OF THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE, AND RETURN
THE ORIGINAL BY OVERNIGHT MAIL, TO:
