WARRANT AGREEMENT
EXHIBIT
4.3
This
Warrant Agreement is made as of September 22, 2009, by and between North
American Minerals Group Inc., an Alberta (Canada) corporation (the “Company”)
and Registrar and Transfer Company (the “Warrant Agent”).
WHEREAS, the Company has
determined to issue and deliver Warrant Certificates (the “Warrants”) entitling
the registered holders of the Warrants to purchase an aggregate of up to
4,000,000 Class A
common shares, without par value, (the “Common Shares”) of the
Company;
WHEREAS, the Company desires
to provide for the form and provisions of the Warrants, the terms upon which
they will be issued and may be exercised, and the respective rights, limitations
and immunities of the Company, the Warrant Agent and the registered holders of
the Warrants; and
WHEREAS, all acts and things
necessary have been done and performed to make the Warrant, when executed on
behalf of the Company and countersigned by or on behalf of the Warrant Agent, as
provided in this Agreement, the valid, binding and legal obligation of the
Company, and to authorize the execution and delivery of this
Agreement.
NOW, THEREFORE, in
consideration of the mutual agreements contained herein, the parties hereto
agree as follows:
Article
I
Execution and
Countersignature of Warrants
1.01 Execution
and Countersignature of Warrants.
(a) Each
Warrant shall be issued in registered form only and shall be dated the date of
issuance thereof (whether upon initial issuance, transfer, exchange or in lieu
of mutilated, lost, stolen or destroyed Warrants) (the “Issue Date”), shall be
substantially in the form of Exhibit A attached
hereto and incorporated herein, and shall be signed by, or bear the facsimile
signature of, the President or Chief Executive Officer and Treasurer or
Secretary of the Company and shall bear a facsimile of the Company’s seal. The
Warrants shall also be manually countersigned by the Warrant Agent in the event
the person whose facsimile signature has been placed upon any Warrant shall have
ceased to serve in the capacity in which such person signed the Warrant before
such Warrant is issued, it may be issued with the same effect as if he or she
had not ceased to be such at the date of issuance.
(b) No
Warrant may be exercised until it has been countersigned by the Warrant Agent.
The Warrant Agent shall countersign a Warrant only if:
(i) The
Warrant is being initially issued hereunder;
(ii) the
Warrant is to be issued in exchange or substitution for one or more previously
countersigned Warrants, as provided in this Agreement; or
(iii) the
Company instructs the Warrant Agent to do so.
(c) Unless
and until countersigned by the Warrant Agent pursuant to this Agreement, a
Warrant is invalid and of no effect.
Article
II
Exercise Price, Duration and
Exercise of Warrants
2.01 Exercise Price. Each
Warrant, when countersigned by the Warrant Agent, shall entitle the registered
holder or its registered assigns as reflected in the Warrant Register (defined
below) (the “Registered Holder”) of the Warrant, subject to the provisions of
this Agreement, to purchase from the Company one Class A Common Share, no par
value, for each Warrant as stated on the face of the Warrant, subject to the
adjustments provided in Article III of this Agreement, at the price of thirty
U.S. cents (USD $0.30) per share (the “Exercise Price”) on or prior to the
Expiration Date (as defined below). The Exercise Price shall refer to the price
per share at which Common Shares may be purchased at the time a Warrant is
exercised. The Company in its sole discretion may lower the Exercise
Price at any time prior to the Expiration Date for a period of not less than 10
business days; provided, however, that any such reduction shall be identical in
percentage terms among all of the Warrants.
2.02 Duration of Warrants.
Warrants may be exercised only during the period (the “Exercise Period”)
commencing on the Issue Date of the subject Warrant until 5:00 PM (New York
time) on the second anniversary date of the initial closing date; provided that
if such date shall in the State of New York be a holiday or a day on which banks
are authorized to close (each , a “Business Day”) than 5:00 PM (New York time)
on the next following Business Day (the “Expiration Date”). Except
with respect to the right to receive the Redemption Price (as set forth in
Article V hereunder), each Warrant not exercised on or before the Expiration
Date shall become void, and all rights thereunder and all rights in respect
thereof under this Agreement shall cease at the close of business on the
Expiration Date. The Company in its sole discretion may extend the duration of
the Warrants by delaying the Expiration Date; provided, however, that the
Company will provide not less than twenty (20) days prior written notice to all
Registered Holders of the Warrants of such extension. Notwithstanding
the foregoing, if notice has been given as provided in Article III hereof in
connection with the liquidation, dissolution or winding up of the Company, the
Warrants shall expire at the close of business on the third full business day
before the date specified in the notice as the record date for determining
holders of Common Shares entitled to receive any distribution upon the
liquidation, dissolution or winding up; provided, however, that such date is at
least five (5) business days after the date of the notice.
2.03 Exercise of
Warrants.
(a) A
Warrant, when countersigned by the Warrant Agent, may be exercised by
surrendering it at the office of the Warrant Agent located at 00 Xxxxxxxx Xxxxx,
Xxxxxxxx, Xxx Xxxxxx 00000, or at the office of its successor as warrant agent,
on or before the Expiration Date, with the Exercise Form set forth in the
Warrant duly completed and executed, and by paying in full, in lawful money of
the United States, the Exercise Price for each full Warrant Share as to which
the Warrant is exercised, and any applicable taxes as provided for in Section
2.03(d).
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(b) As
soon as practicable after the exercise of any Warrant and the clearance of the
funds in payment of the Exercise Price, the Company shall issue to, or upon the
order of, the Registered Holder(s) of the Warrant, in whatever name or names the
Registered Holder may direct, a certificate or certificates for the number of
full Warrant Shares to which the Registered Holder(s) are entitled, registered
in the name or names specified by the Registered Holder(s), and, if the Warrant
is not exercised in full, a new countersigned Warrant for the number of Warrant
Shares as to which the Warrant has not been exercised. All Warrants surrendered
shall be canceled by the Company.
(c) Subject
to Section 4.04 and notwithstanding the foregoing, the Company shall not be
obligated to deliver any Warrant Shares pursuant to the exercise of a Warrant
and shall have no obligation to settle such Warrant exercise unless a
registration statement under the Securities Act of 1933, as amended (the
“Securities Act”) with respect to the Warrants and the Warrant Shares is
effective, and such securities are qualified for sale or exempt from
qualification under applicable securities laws of the states or other
jurisdictions in which the Registered Holders reside. In the event that a
registration statement with respect to the Warrants and the Warrant is not
effective under the Securities Act, the Registered Holder of such Warrant shall
not be entitled to exercise such Warrant and such Warrant may have no value and
expire worthless, and in the event the Registered Holder is a purchaser of a
unit containing such Warrant, will be deemed to have paid the full purchase
price for the unit solely for the Common Shares included in such
unit. In no event will the Company be required to net cash settle the
warrant exercise. Warrants may not be exercised by, or Warrant Shares
issued to, any Registered Holder in any state in which such exercise would be
unlawful.
(d) All
Warrant Shares issued upon the exercise of a Warrant shall be duly and validly
issued, fully paid and non-assessable, and the Company shall pay all taxes in
connection with the issuance of such Warrant Shares. The Company shall not be
required to pay any tax imposed in connection with any transfer involved in the
issuance of a certificate for Warrant Shares in any name other than that of the
Registered Holder(s) of the Warrant surrendered in connection with the purchase
of the Warrant Shares. In this case, the Company shall not be
required to issue or deliver any Common Share certificate until the tax has been
paid.
(e) Each
person in whose name any certificate for Warrant Shares is issued shall be
deemed to have become the Registered Holder of record of the Warrant Shares on
the date on which the Warrant was surrendered and payment of the Exercise Price
and any applicable taxes was made, irrespective of the date of delivery of the
certificate, except that, if the date of surrender and payment is a date when
the stock transfer books of the Company are closed, a person shall be deemed to
have become the Registered Holder of the Warrant Shares at the close of business
on the next succeeding date on which the stock transfer books are open. Except
as otherwise provided in Article IV, each person holding any Warrant Shares
received upon exercise of Warrants shall be entitled to receive only dividends
or distributions which are payable to holders of record on or after the date on
which the person is deemed to become the holder of record of such Warrant
Shares.
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Article
III
Adjustments
3.01 Stock Dividends – Stock
Splits. If after the date of this Agreement, and subject to the
provisions of Section 3.06 hereof, the number of outstanding Common Shares
of the Company is increased by a stock dividend payable in Common Shares or by a
stock split of Common Shares, then, on the day following the date fixed for the
determination of holders of Common Shares entitled to receive the stock dividend
or stock split, the number of Warrant Shares issuable on exercise of each
Warrant shall be increased in proportion to the increase in outstanding Common
Shares and the then applicable Exercise Price shall be correspondingly
decreased.
3.02 Aggregation of
Shares. If after the date of this Agreement, and subject to the
provisions of Section 3.06 hereof, the number of outstanding Common Shares
of the Company is decreased by a combination or reclassification of Common
Shares, then, after the effective date of the combination or reclassification,
the number of Warrant Shares issuable on exercise of each Warrant shall be
decreased in proportion to the decrease in outstanding Common Shares and the
then applicable Exercise Price shall be correspondingly increased.
3.03 Reorganization, Etc.
If after the date of this Agreement any capital reorganization or
reclassification of the Common Shares of the Company, or consolidation or merger
of the Company with another entity, or sale of all or substantially all of its
assets to another entity is effective, then, as a condition of the
reorganization, reclassification, consolidation, merger or sale, lawful and fair
provision shall be made whereby the Registered Holders after the transaction
shall have the right to purchase and receive, upon the basis and upon the terms
and conditions specified in the Warrants and in lieu of the Warrant Shares of
the Company purchasable and receivable immediately prior to the transaction upon
the exercise of the rights represented by the Warrants, the shares of stock,
securities or assets that may be issued or payable with respect to or in
exchange for a number of outstanding Common Shares equal to the number of
Warrant Shares purchasable and receivable immediately prior to the transaction
upon the exercise of the rights represented by the Warrants if the
reorganization, reclassification, consolidation, merger or sale had not taken
place. Appropriate provisions shall be made in connection with a reorganization,
reclassification, consolidation, merger or sale with respect to the rights and
interests of the Registered Holders to the end that the provision of this
Agreement (including, without limitation, provisions for adjustments of the
Exercise Price and of the number of Warrant Shares purchasable upon exercise of
the Warrants) shall immediately after the transaction be applicable as nearly as
possible to any shares of stock, securities or assets deliverable immediately
after the transaction upon the exercise of the Warrants. The Company shall not
effect any consolidation, merger or sale unless, prior to the consummation of
the transaction, the successor entity (if other than the Company) resulting from
the consolidation or merger, or the entity purchasing the assets, assumes by
written instrument executed and delivered to the Warrant Agent the obligation to
deliver to the Registered Holders the shares of stock, securities or assets in
accordance with the foregoing provisions that the Registered Holders may be
entitled to purchase.
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3.04 Notice of Change in
Warrant. Upon any adjustment of the Exercise Price or the number of
Warrant Shares issuable on exercise of a Warrant, then and in each case the
Company shall give written notice of the adjustment to the Warrant Agent. The
notice shall state the Exercise Price resulting from the adjustment and the
increase or decrease, if any, in the number of Warrant Shares purchasable at
that Exercise Price upon exercise of a Warrant, setting forth in reasonable
detail the method of calculation and the facts upon which the calculation is
based. The Company shall mail or cause to be mailed to each Registered Holder of
Warrants at the address registered with the Company, a notice setting forth such
change or adjustment. Failure to file a statement or to give notice, or any
defect in a statement or notice, shall not affect the legality or validity of
the changes or adjustments.
3.05 Other Notices. In
case at any time:
(a) the
Company pays any dividends payable in stock upon its Common Shares or makes any
distributions (other than regular cash dividends) to the holders of its Common
Shares;
(b) the
Company offers for subscription pro rata to the holders of its Common Shares any
additional shares of stock, securities convertible into Common Shares,
securities of any class, or any other rights;
(c) there
is a capital reorganization, a classification of the capital stock of the
Company or a consolidation or merger of the Company with, or a sale of all or
substantially all of its assets to, another entity;
(d) the
Company proposes to make a tender offer, redemption offer or exchange offer with
respect to the Common Shares; or
(e) there
is a voluntary or involuntary dissolution, liquidation or winding up of the
Company;
then, in
any one or more of these cases, the Company shall give written notice in the
manner set forth in Section 3.04 of this Agreement of the date on which
(i) the books of the Company close or a record is taken for the dividend,
distribution, subscription or offer rights, or (ii) the reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding up takes place. The notice also shall specify the date as of which the
holders of record of Common Shares shall participate in dividend, distribution,
subscription or offer rights, or shall be entitled to exchange their Common
Shares for securities or other property deliverable upon the reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding up. The notice shall be given and published at least twenty
(20) days prior to the transaction in question and not less than twenty
(20) days prior to the record date or the date on which the Company’s
transfer books are closed with respect to the transaction. Failure to give or
publish the notice, or any defect in the notice, shall not affect the legality
or validity of any transaction covered or to be covered in the
notice.
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3.06 No Fractional
Shares. Notwithstanding any provision contained in this
Warrant Agreement to the contrary, the Company shall not issue fractional shares
upon exercise of Warrants. If, by reason of any adjustment made pursuant to this
Article III, the Registered Holder of any Warrant would be entitled, upon the
exercise of such Warrant, to receive a fractional interest in a Warrant Share,
the Company shall, upon such exercise, round up or down to the nearest whole
number the number of Warrant Shares to be issued to the Registered
Holder.
3.07 Form of Warrant. The
form of Warrant need not be changed due to any change pursuant to this Article
III, and Warrants issued after a change may state the same Exercise Price and
the same number of shares as is stated in the Warrants initially issued pursuant
hereto. However, at any time in its sole discretion, the Company may make any
change in the form of Warrant that it may deem appropriate and that does not
affect the substance of the Warrants. Any Warrant subsequently issued and
countersigned, whether in exchange or substitution for an outstanding Warrant or
otherwise, may be in the form as so changed.
Article
IV
Other Provisions Relating to
Rights of Registered Holders of Warrants
4.01 No Rights as Shareholder
Conferred by Warrants. A Warrant does not entitle its Registered Holder
to any of the rights of a shareholder of the Company, including, without
limitation, the right to receive dividends, or other distributions, exercise any
preemptive rights to vote or to consent or to receive notice as shareholders in
respect of the meetings of shareholders or the election of directors of the
Company or any other matter.
4.02 Lost, Stolen, Mutilated or
Destroyed Warrants. If any Warrant is lost, stolen, mutilated, or
destroyed, the Company and the Warrant Agent may on such terms as to indemnity
or otherwise as they may in their discretion impose (which shall, in the case of
a mutilated Warrant, include the surrender thereof), issue a new Warrant of like
denomination, tenor, and date as the Warrant so lost, stolen, mutilated, or
destroyed. Any such new Warrant shall constitute a substitute contractual
obligation of the Company in place of the allegedly lost, stolen, mutilated, or
destroyed Warrant, whether or not anyone shall attempt to enforce the allegedly
lost, stolen, mutilated, or destroyed Warrant at any time.
4.03 Reservation of Common
Shares. The Company shall at all times reserve and keep available the
number of its authorized but unissued Common Shares which is sufficient to
permit the exercise in full of the Warrants pursuant to the terms hereof. If at
any time the number of authorized but unissued Common Shares is not sufficient
for these purposes, the Company shall take such corporate action as, in the
opinion of counsel, may be necessary to increase its authorized but unissued
shares to the number of Common Shares sufficient for these
purposes.
4.04 Registration under the
Securities Act. The Company agrees that prior to the commencement of the
Exercise Period, it shall use its best efforts to file with the Securities and
Exchange Commission (the “Commission”) an amendment or post-effective amendment,
as the case may be, to the registration statement on Form F-1, as amended and
initially filed with the Commission on January 27, 2009, providing for the
registration of the Warrant and the Warrant Shares under the Securities Act, and
it shall use its best efforts to take such action as is necessary to qualify the
same for sale in those states in which the Warrants were initially offered by
the Company. In either case, the Company will use its best efforts to cause the
registration statement to become effective and to maintain the effectiveness of
such registration statement until the expiration of the Warrants in accordance
with the provisions of this Agreement. The provisions of this Section 4.04
may not be modified, amended or deleted without the prior written consent of the
Company and the Warrant Agent.
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Article
V
Redemption
5.01 Redemption. The
Company reserves the right to redeem all, but not less than all, of the
unexercised Warrants at any time, provided that (i) the closing sale price of
the Common Shares on the principal trading market where the Common Shares are
approved for quotation or the principal national securities exchange where the
Common Shares are listed (the “Principal Market”) exceeds $0.75 per share on
each of the ten (10) consecutive trading days ending within 10 days prior to the
date on which notice of such redemption is given by the Company, and (ii) an
effective registration statement covering the Warrants and the Warrant Shares is
in place for the entire Redemption Period. The redemption price of
the Warrants shall be $.001 per share (the “Redemption Price”). Any
Warrant either not exercised or not tendered back to the Company by the end of
the Redemption Period shall be canceled on the books of the Company, and the
Company shall be deemed appointed at such time as the Registered Holder’s
attorney in fact for the purpose of canceling such Warrants, and such Warrants
shall have no further value except for the Redemption Price. Upon
redemption of the Warrants and payment by the Company of the Redemption Price,
the Registered Holder(s) will have no further rights with respect to the
Warrants
5.02 Date Fixed for, and Notice
of, Redemption. In the event the Company shall elect to redeem all, but
not less than all, of the unexercised Warrants, the Company shall fix a date for
the redemption. Notice of redemption shall be mailed by first class
mail, postage prepaid, by the Company not less than 30 days prior to the date
fixed for redemption (the “Redemption Period”) to the Registered Holders of the
Warrants to be redeemed at their last addresses as they shall appear on the
registration books. Any notice mailed in the manner herein provided shall be
conclusively presumed to have been duly given whether or not the Registered
Holder received such notice.
5.03 Exercise After Notice of
Redemption. Notwithstanding the foregoing, the Registered Holder may
exercise the Warrants at any time during the Redemption Period and prior to the
time and date fixed for redemption.
Article
VI
Registration, Ownership and
Transfer of Warrants
6.01 Warrant Register. The
Warrant Agent shall maintain books (“Warrant Register”), for the registration of
original issuance and the registration of transfer of the Warrants. Upon the
initial issuance of the Warrants, the Warrant Agent shall issue and register the
Warrants in the names of the respective Registered Holders thereof in such
denominations and otherwise in accordance with instructions delivered to the
Warrant Agent by the Company.
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6.02 Ownership of
Warrants. Warrants issued pursuant to this Agreement shall be treated as
owned only by the Registered Holder as determined by the Warrant
Agent. Prior to due presentment for registration of transfer of any
Warrant, the Company and the Warrant Agent may deem and treat the person in
whose name such Warrant shall be registered upon the Warrant Register, as the
Registered Holder of such Warrant and of each Warrant represented thereby
(notwithstanding any notation of ownership or other writing on the Warrant
Certificate made by anyone other than the Company or the Warrant Agent), for the
purpose of any exercise thereof, and for all other purposes, and neither the
Company nor the Warrant Agent shall be affected by any notice to the
contrary.
6.03 Transfer of
Warrants.
(a) Registration of
Transfer. The Warrant Agent shall register the transfer, from time to
time, of any outstanding Warrant upon the Warrant Register, upon surrender of
such Warrant for transfer with the Assignment form set forth in the Warrant duly
completed and executed with signatures properly guaranteed and accompanied by
appropriate instructions for transfer. Any such transfer shall be made pursuant
to a registration statement covering the Warrants in satisfaction of the
prospectus delivery requirements (or access pursuant to Rule 172), as
applicable. Upon any such transfer, a new Warrant representing an equal
aggregate number of Warrants shall be issued and the old Warrant shall be
cancelled by the Warrant Agent. The Warrants so cancelled shall be delivered by
the Warrant Agent to the Company from time to time upon request.
(b) Procedure for Surrender of
Warrants. Subject to Section 6.03(a), Warrants may be surrendered to the
Warrant Agent, together with a written request for exchange or with the
Assignment form set forth in the Warrant duly completed and executed for a
transfer, and thereupon the Warrant Agent shall issue in exchange therefor one
or more new Warrants as requested by the Registered Holder of the Warrants so
surrendered, representing an equal aggregate number of Warrants; provided,
however, that in the event that a Warrant surrendered for transfer bears a
restrictive legend, the Warrant Agent shall not cancel such Warrant and issue
new Warrants in exchange therefor until the Warrant Agent has received an
opinion of counsel for the Company stating that such transfer may be made and
indicating whether the new Warrants must also bear a restrictive
legend.
(c) Fractional Warrants.
The Warrant Agent shall not be required to effect any registration of transfer
or exchange which will result in the issuance of a Warrant for a fraction of a
Warrant.
(d) Service Charges. No
service charge shall be made for any exchange or registration of transfer of
Warrants.
(e) Warrant Execution and
Countersignature. The Warrant Agent is hereby authorized to countersign
and to deliver, in accordance with the terms of this Agreement, the Warrants
required to be issued pursuant to the provisions of this Article VI, and
the Company, whenever required by the Warrant Agent, will supply the Warrant
Agent with Warrants duly executed on behalf of the Company for such
purpose.
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Article
VII
Warrant
Agent
7.01 Resignation, Consolidation
or Merger of Warrant Agent.
(a) The
Warrant Agent, or any successor or assign to it hereafter appointed, may resign
its duties and be discharged from all further duties and liabilities hereunder
after giving sixty
(60) days notice in writing to the Company, except that shorter notice may
be given if the Company, in writing, accepts such shorter notice as
sufficient. If the office of Warrant Agent becomes vacant by
resignation or incapacity to act or otherwise, the Company shall appoint in
writing a successor Warrant Agent in place of the Warrant Agent.
(b) If
the Company fails to make an appointment within sixty (60) days after it has
been notified in writing of a resignation or an incapacity by the Warrant Agent
or by the Registered Holder of a Warrant (who must, with any notice, submit the
Warrant for inspection by the Company), then the Registered Holder of any
Warrant may apply to any court of competent jurisdiction for the appointment of
a successor Warrant Agent. Any successor Warrant Agent, whether appointed by the
Company or by a court, must be an entity organized, doing business and existing
under the laws of the State of New York and under the laws of the United States
of America, in good standing and having its principal office in New York, and be
authorized under such laws to exercise corporate trust powers, be subject to
supervision or examination by federal or state authorities, and have a combined
capital and surplus of not less than $5,000,000. The combined capital
and surplus of any successor Warrant Agent shall be deemed to be the combined
capital and surplus set forth in the most recent report of its condition
published prior to its appointment, provided that these reports are published at
least annually pursuant to law or to the requirements of a federal or state
supervision or examining authority.
(c) After
appointment, any successor Warrant Agent shall be vested with all the
authorities, powers, rights, immunities, duties and obligations of its
predecessor Warrant Agent with like effect as if originally named as Warrant
Agent under this Agreement without any further act or deed. However, if for any
reason it becomes necessary or appropriate, the predecessor Warrant Agent shall
execute and deliver, at the Company’s expense, an instrument transferring to a
successor Warrant Agent all the authority, powers, rights, immunities, duties
and obligations of a Warrant Agent hereunder. Not later than the
effective date of any appointment the Company shall give notice of the
appointment to the predecessor Warrant Agent, the transfer agent for the Common
Shares and to the Registered Holders of the Warrants. Failure to give
notice, or any defect in a notice, shall not affect the validity of the
appointment of a successor Warrant Agent.
(d) Any
entity into which the Warrant Agent may be merged or with which it may be
consolidated or any entity resulting from any merger or consolidation to which
the Warrant Agent is a party shall be the successor Warrant Agent under this
Agreement without any further act.
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7.02 Fees and Expenses of Warrant
Agent. The Company shall (a) pay the Warrant Agent reasonable
remuneration for its services as Warrant Agent hereunder and reimburse the
Warrant Agent upon demand for all expenditures that it may reasonably incur in
the execution of its duties hereunder; and (b) perform, execute,
acknowledge and deliver or cause to be performed, executed, acknowledged and
delivered all further and other acts, instruments and assurances that reasonably
may be required by the Warrant Agent to carry out or perform this
Agreement.
7.03 Liability of Warrant
Agent.
(a) The
Warrant Agent may consult with legal counsel (who may be legal counsel for the
Company) and the opinion of legal counsel shall be full and complete
authorization and protection to the Warrant Agent with respect to any action
taken or omitted by it in good faith and in accordance with the
opinion.
(b) Whenever
in the performance of its duties under this Warrant Agreement, the Warrant Agent
shall deem it necessary or desirable that any fact or matter be proved or
established by the Company prior to taking or suffering any action hereunder,
such fact or matter (unless other evidence in respect thereof be herein
specifically prescribed) may be deemed to be conclusively proved and established
by a statement signed by the President or Chief Executive Officer of the Company
and delivered to the Warrant Agent. The Warrant Agent may rely upon such
statement for any action taken or suffered in good faith by it pursuant to the
provisions of this Agreement.
(c) The
Warrant Agent shall be liable hereunder only for its own negligence, willful
misconduct or bad faith. The Company agrees to indemnify the Warrant Agent and
save it harmless against any and all liabilities, including judgments, costs and
reasonable counsel fees, for anything done or omitted by the Warrant Agent in
the execution of this Agreement except as a result of the Warrant Agent’s
negligence, willful misconduct, or bad faith. The Warrant Agent shall
indemnify and hold harmless the Company, its employees and agents from and
against any loss, damage, liability or claim suffered, incurred by, or asserted
against the Company, its employees and agents, including reasonable counsel
fees, arising out of, in connection with or based upon any act or omission by
the Warrant Agent relating in any way to this Agreement or its services
hereunder resulting from the Warrant Agent’s negligence, willful misconduct or
bad faith.
(d) The
Warrant Agent shall not be liable for or by reason of any of the statements of
fact or recital contained in this Agreement or in the Warrants (except its
countersignature of the Warrants) or be required to verify the statements or
recitals, and all of these statements and recitals are and shall be deemed to
have been made only by the Company.
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(e) The
Warrant Agent shall not be responsible for (i) the validity of this
Agreement, (ii) the execution and delivery of this Agreement or the
validity and execution of any Warrants (except its countersignature or execution
of the Warrants), (iii) any breach by the Company of any covenant or
condition contained herein or in any Warrant, (iv) the making of any such
adjustment required by Article III of this Agreement or (v) the manner,
method or amount of any such adjustment or the ascertaining of the existence of
facts that would require any adjustment. The Warrant Agent also, by any act
under or pursuant hereto, shall not be deemed to make any representation or
warranty as to the authorization or reservation of any Common Shares to be
issued pursuant hereto, as to any Warrant or as to whether, when issued, Warrant
Shares shall be duly and validly issued, fully paid and
nonassessable.
7.04 Acceptance of Agency.
The Warrant Agent hereby accepts the agency established by this Agreement and
agrees to perform this Agreement upon the terms and conditions set forth herein.
Among other things, the Warrant Agent shall account promptly to the Company with
respect to Warrants exercised and concurrently pay to the Company all moneys
received by it for the purchase of Warrant Shares through the exercise of
Warrants.
Article
VIII
Other
Matters
8.01 Amendments. This
Agreement may be amended by the parties hereto without the consent of any
Registered Holder for the purpose of curing any ambiguity, or of curing,
correcting or supplementing any defective provision contained herein or adding
or changing any other provisions with respect to matters or questions arising
under this Agreement as the parties may deem necessary or desirable and that the
parties deem shall not adversely affect the interest of the Registered Holders.
All other modifications or amendments, including any amendment to increase the
Exercise Price or shorten the Exercise Period, shall require the written consent
of the Registered Holders of a majority of the then outstanding Warrants.
Notwithstanding the foregoing, the Company may lower the Exercise Price or
extend the duration of the Exercise Period pursuant to Sections 2.01 and
2.02, respectively, without the consent of the Registered Holders.
8.02 Severability. This
Agreement shall be deemed severable, and the invalidity or unenforceability of
any term or provision hereof shall not affect the validity or enforceability of
this Agreement or of any other term or provision hereof. Furthermore, in lieu of
any such invalid or unenforceable term or provision, the parties hereto intend
that there shall be added as a part of this Agreement a provision as similar in
terms to such invalid or unenforceable provision as may be possible and be valid
and enforceable.
8.03 Successors. All the
covenants and provisions of this Agreement by or for the benefit of the Company
or the Warrant Agent shall bind and inure to the benefit of their respective
successors and assigns hereunder.
8.04 Notices and Demands to
Company and Warrant Agent. Any notice, statement or demand authorized by
this Warrant Agreement to be given or made by the Company, the Warrant Agent or
by the Registered Holder of any Warrant shall be sufficiently given when so
delivered if by hand or overnight delivery or if sent by certified mail or
private courier service within five days after deposit of such notice, postage
prepaid, addressed (until another address is filed in writing), as
follows:
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To the Company:
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000
Xxxxxxxx Xxxxx, XX
Xxxxxxx,
Xxxxxxx X0X 0X0, Xxxxxx
Fax: (000)
000-0000
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To the Warrant Agent:
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Register
And Transfer Company
00
Xxxxxxxx Xxxxx
Xxxxxxxx,
XX 00000
Fax: (000)
000-0000
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8.05 Applicable Law. The
validity, interpretation, and performance of this Agreement and of the Warrants
shall be governed in all respects by the laws of the State of New Jersey,
without giving effect to conflicts of law principles that would result in the
application of the substantive laws of another jurisdiction. The Company hereby
agrees that any action, proceeding or claim against it arising out of or
relating in any way to this Agreement shall be brought and enforced in the
federal or state courts in the State of New Jersey within Union County and
irrevocably submits to such personal and exclusive jurisdiction. The parties
hereby waive any objection to such exclusive jurisdiction and that such courts
represent an inconvenient forum. Any such process or summons to be served upon
the parties may be served by transmitting a copy thereof by registered or
certified mail, return receipt requested, postage prepaid, addressed to it at
the address set forth in Section 8.04 hereof. Such mailing shall be deemed
personal service and shall be legal and binding upon the Company in any action,
proceeding or claim.
8.06 Persons Having Rights Under
This Agreement. Nothing expressed in this Agreement and nothing that may
be implied from any of the provisions hereof is intended, or shall be construed,
to confer upon, or give to, any person or entity other than the parties to this
Agreement and the Registered Holders of the Warrants any right, remedy or claim
under or by reason of this Agreement or of any covenant, conditions,
stipulation, promise or agreement contained herein, and all covenants,
conditions, stipulations, promises and agreements contained herein shall be for
the sole and exclusive benefit of the parties hereto and their respective
successors and assigns and of the Registered Holders of the
Warrants.
8.07 Examination of
Agreement. A copy of this Agreement shall be available at all reasonable
times at the office of the Warrant Agent for inspection by the Registered Holder
of any Warrant. The Warrant Agent may require the Registered Holder seeking
inspection to submit the Warrant for inspection by it.
8.08 Effect of Headings.
The article and section headings in this Agreement are for convenience only and
are not part of this Agreement and shall not affect the interpretation
hereof.
8.09 Counterparts. This
Agreement may be executed in any number of original, facsimile or electronically
transmitted counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
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IN
WITNESS WHEREOF, this Warrant Agreement has been duly executed by the parties
hereto as of the day and year first above written.
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By:
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/s/ Xxxxxxxx Xxxxxx
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Name:
Xxxxxxxx Xxxxxx
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Title: CFO
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REGISTRAR
AND TRANSFER COMPANY
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By:
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/s/ Xxxxxxx Tatler
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Name: Xxxxxxx
Tatler
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Title: Vice
President
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