WARRANT FOR THE PURCHASE OF SHARES OF COMMON STOCK OF TRUE NORTH ENERGY CORPORATION (A Nevada corporation)
EXHIBIT
4.4
NEITHER
THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER
ANY STATE SECURITIES LAW. IN ADDITION, SUCH SECURITIES MAY NOT BE SOLD, PLEDGED
OR OTHERWISE TRANSFERRED UNLESS (i) THERE IS AN EFFECTIVE REGISTRATION STATEMENT
COVERING THE SECURITIES UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS,
(ii) THE COMPANY FIRST RECEIVES AN OPINION FROM AN ATTORNEY, REASONABLY
ACCEPTABLE TO THE COMPANY, STATING THAT THE PROPOSED TRANSFER IS EXEMPT FROM
REGISTRATION UNDER THE ACT AND UNDER ALL APPLICABLE STATE SECURITIES LAWS,
OR
(iii) THE TRANSFER IS MADE PURSUANT TO RULE 144 PROMULGATED UNDER THE
ACT.
298,330
shares of Common Stock
Dated:
August 30, 2007
WARRANT
FOR THE PURCHASE OF
SHARES
OF COMMON STOCK
OF
TRUE
NORTH ENERGY CORPORATION
(A
Nevada
corporation)
FOR
VALUE
RECEIVED, True North Energy Corporation ("Company"), hereby certifies that
EH&P Xxxxxxxxxxx XX, Xxxxxxxxxxxxxxxxxx 000, XX-0000, Xxxxxx, Xxxxxxxxxxx or
his, her or its registered assigns ("Holder"), is entitled, subject to the
terms
set forth below, to purchase from the Company, at any time or from time to
time
during the three-year period commencing on August 30, 2007 and expiring on
August 29, 2010, two hundred ninety-eight thousand three hundred thirty
(298,330) shares of Common Stock of the Company ("Common Stock"), at a purchase
price of $1.17 per share. The number of shares of Common Stock purchasable
upon
exercise of this Warrant, and the purchase price per share, each as adjusted
from time to time pursuant to the provisions of this Warrant, are hereinafter
referred to as the "Warrant Shares" and the "Exercise Price,"
respectively.
1. Exercise
1.1 Procedure
for Exercise.
This
Warrant may be exercised by the Holder, in whole or in part, by the surrender
of
this Warrant (with the Notice of Exercise Form attached hereto duly executed
by
such Holder) at the principal office of the Company, or at such other office
or
agency as the Company may designate, accompanied by payment in full, in lawful
money of the United States, of an amount equal to the then applicable Exercise
Price multiplied by the number of Warrant Shares then being purchased upon
such
exercise.
1.2 Date
of
Exercise.
Each
exercise of this Warrant shall be deemed to have been effected immediately
prior
to the close of business on the day on which this Warrant shall have been
surrendered to the Company. At such time, the person or persons in whose name
or
names any certificates for Warrant Shares shall be issuable upon such exercise
shall be deemed to have become the holder or holders of record of the Warrant
Shares represented by such certificates.
1.3 Issuance
of Certificate. As soon as practicable after the exercise of the purchase
right represented by this Warrant, the Company at its expense will use its
best
efforts to cause to be issued in the name of, and delivered to, the Holder,
or,
subject to the terms and conditions hereof, to such other individual or entity
as such Holder (upon payment by such Holder of any applicable transfer taxes)
may direct:
(i) a
certificate or certificates
for the number of full shares of Warrant Shares to which such Holder shall
be
entitled upon such exercise (subject to Section 3 hereof), and
(ii) in
case such exercise is in
part only, a new warrant or warrants (dated the date hereof) of like tenor,
stating on the face or faces thereof the number of shares currently stated
on
the face of this Warrant minus the number of such shares purchased by the Holder
upon such exercise as provided in subsection 1.1 above.
2. Adjustments.
2.1 Split,
Subdivision or Combination of Shares. If the outstanding shares of the
Company's Common Stock at any time while this Warrant remains outstanding and
unexpired shall be subdivided or split into a greater number of shares, or
a
dividend in Common Stock shall be paid in respect of Common Stock, the Exercise
Price in effect immediately prior to such subdivision or at the record date
of
such dividend shall, simultaneously with the effectiveness of such subdivision
or split or immediately after the record date of such dividend (as the case
may
be), shall be proportionately decreased. If the outstanding shares of Common
Stock shall be combined or reverse-split into a smaller number of shares, the
Exercise Price in effect immediately prior to such combination or reverse split
shall, simultaneously with the effectiveness of such combination or reverse
split, be proportionately increased. When any adjustment is required to be
made
in the Exercise Price, the number of shares of Warrant Shares purchasable upon
the exercise of this Warrant shall be changed to the number determined by
dividing (i) an amount equal to the number of shares issuable upon the exercise
of this Warrant immediately prior to such adjustment, multiplied by the Exercise
Price in effect immediately prior to such adjustment, by (ii) the Exercise
Price
in effect immediately after such adjustment.
2.2 Reclassification
Reorganization, Consolidation or Merger. In the case of any reclassification
of the Common Stock (other than a change in par value or a subdivision or
combination as provided for in subsection 2.1 above), or any reorganization,
consolidation or merger of the Company with or into another corporation (other
than a merger or reorganization with respect to which the Company is the
continuing corporation and which does not result in any reclassification of
the
Common Stock), or a transfer of all or substantially all of the assets of the
Company, or the payment of a liquidating distribution then, as part of any
such
reorganization, reclassification, consolidation, merger, sale or liquidating
distribution, lawful provision shall be made so that the Holder of this Warrant
shall have the right thereafter to receive upon the exercise hereof, the kind
and amount of shares of stock or other securities or property which such Holder
would have been entitled to receive if, immediately prior to any such
reorganization, reclassification, consolidation, merger, sale or liquidating
distribution, as the case may be, such Holder had held the number of shares
of
Common Stock which were then purchasable upon the exercise of this Warrant.
In
any such case, appropriate adjustment (as reasonably determined by the Board
of
Directors of the Company) shall be made in the application of the provisions
set
forth herein with respect to the rights and interests thereafter of the Holder
of this Warrant such that the provisions set forth in this Section 2 (including
provisions with respect to the Exercise Price) shall thereafter be applicable,
as nearly as is reasonably practicable, in relation to any shares of stock
or
other securities or property thereafter deliverable upon the exercise of this
Warrant.
2.3 Price
Adjustment. No adjustment in the per share Exercise Price shall be required
unless such adjustment would require an increase or decrease in the Exercise
Price of at least $0.01; provided, however, that any adjustments which by reason
of this paragraph are not required to be made shall be carried forward and
taken
into account in any subsequent adjustment. All calculations under this Section
2
shall be made to the nearest cent or to the nearest 1/100th of a share, as
the
case may be.
2.4 No
Impairment. The Company will not, by amendment of its Articles of
Incorporation or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms to
be
observed or performed hereunder by the Company but will at all times in good
faith assist in the carrying out of all the provisions of this Section 2 and
in
the taking of all such actions as may be necessary or appropriate in order
to
protect against impairment of the rights of the Holder of this Warrant to
adjustments in the Exercise Price.
2.5 Notice
of Adjustment. Upon any adjustment of the Exercise Price or extension of the
Warrant exercise period, the Company shall forthwith give written notice thereto
to the Holder of this Warrant describing the event requiring the adjustment,
stating the adjusted Exercise Price and the adjusted number of shares
purchasable upon the exercise hereof resulting from such event, and setting
forth in reasonable detail the method of calculation and the facts upon which
such calculation is based.
3. Fractional
Shares. The Company shall not be required to issue fractions of shares of
Common Stock upon exercise. If any fractions of a share would, but for this
Section 3, be issuable upon any exercise, in lieu of such fractional share
the
Company shall round up or down to the nearest whole number.
4. Limitation
on Sales. Each holder of this Warrant acknowledges that this Warrant and the
Warrant Shares, as of the date of original issuance of this Warrant, have not
been registered under the Securities Act of 1933, as amended ("Act"), and agrees
not to sell, pledge, distribute, offer for sale, transfer or otherwise dispose
of this Warrant or any Warrant Shares issued upon its exercise in the absence
of
(a) an effective registration statement under the Act as to this Warrant or
such
Warrant Shares or (b) an opinion of counsel, reasonably acceptable to the
Company, that such registration and qualification are not required. Absent
prior
registration, the Warrant Shares issued upon exercise thereof shall be imprinted
with a legend in substantially the following form:
THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY STATE SECURITIES LAWS, AND
MAY
NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED UNLESS (i) THERE IS AN EFFECTIVE
REGISTRATION STATEMENT COVERING THE SHARES UNDER THE ACT AND APPLICABLE STATE
SECURITIES LAWS, (ii) THE COMPANY FIRST RECEIVES AN OPINION FROM AN
ATTORNEY, REASONABLY ACCEPTABLE TO THE COMPANY, STATING THAT THE PROPOSED
TRANSFER IS EXEMPT FROM REGISTRATION UNDER THE ACT AND UNDER ALL APPLICABLE
STATE SECURITIES LAWS, OR (iii) THE TRANSFER IS MADE PURSUANT TO RULE 144
PROMULGATED UNDER THE ACT.
5. Notices
of Record Date. In case: (i) the Company shall take a record of the holders
of its Common Stock (or other stock or securities at the time deliverable upon
the exercise of this Warrant) for the purpose of entitling or enabling them
to
receive any dividend or other distribution, or to receive any right to subscribe
for or purchase any shares of any class or any other securities, or to receive
any other right, or (ii) of any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any consolidation or
merger of the Company with or into another corporation (other than a
consolidation or merger in which the Company is the surviving entity), or any
transfer of all or substantially all of the assets of the Company, or (iii)
of
the voluntary or involuntary dissolution, liquidation or winding-up of the
Company, then, and in each such case, the Company will mail or cause to be
mailed to the Holder of this Warrant a notice specifying, as the case may be,
(i) the date on which a record is to be taken for the purpose of such dividend,
distribution or right, and stating the amount and character of such dividend,
distribution or right, or (ii) the effective date on which such reorganization,
reclassification, consolidation, merger, transfer, dissolution, liquidation
or
winding-up is to take place, and the time, if any is to be fixed, as of which
the holders of record of Common Stock (or such other stock or securities at
the
time deliverable upon the exercise of this Warrant) shall be entitled to
exchange their shares of Common Stock (or such other stock or securities) for
securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, transfer, dissolution, liquidation
or
winding-up. Such notice shall be mailed at least ten (10) days prior to the
record date or effective date for the event specified in such notice, provided
that the failure to mail such notice shall not affect the legality or validity
of any such action.
6. Reservation
of Stock. The Company will at all times reserve and keep available, solely
for issuance and delivery upon the exercise of this Warrant, such shares of
Common Stock and other stock, securities and property, as from time to time
shall be issuable upon the exercise of this Warrant.
7. Replacement
of Warrants. Upon receipt of evidence reasonably satisfactory to the Company
of the loss, theft, destruction or mutilation of this Warrant and (in the case
of loss, theft or destruction) upon delivery of an indemnity agreement (with
surety if reasonably required) in an amount reasonably satisfactory to the
Company, or (in the case of mutilation) upon surrender and cancellation of
this
Warrant, the Company will issue, in lieu thereof, a new Warrant of like
tenor.
8. Transfers,
etc.
8.1 Warrant
Register. The Company will maintain a register containing the names and
addresses of the Holders of this Warrant. Any Holder may change its, his or
her
address as shown on the warrant register by written notice to the Company
requesting such change.
8.2 Holder.
Until any transfer of this Warrant is made in the warrant register, the Company
may treat the Holder of this Warrant as the absolute owner hereof for all
purposes; provided, however, that if and when this Warrant is properly assigned
in blank, the Company may (but shall not be obligated to) treat the bearer
hereof as the absolute owner hereof for all purposes, notwithstanding any notice
to the contrary.
9. No
Rights as Stockholder. Until the exercise of this Warrant, the Holder of
this Warrant shall not have or exercise any rights by virtue hereof as a
stockholder of the Company.
10. Successors.
The rights and obligations of the parties to this Warrant will inure to the
benefit of and be binding upon the parties hereto and their respective heirs,
successors, assigns, pledgees, transferees and purchasers.
11. Change
or Waiver. Any term of this Warrant may be changed or waived only by an
instrument in writing signed by the party against which enforcement of the
change or waiver is sought.
12. Headings.
The headings in this Warrant are for purposes of reference only and shall not
limit or otherwise affect the meaning of any provision of this
Warrant.
13. Governing
Law. This Warrant shall be governed by and construed in accordance with the
laws of the State of New York. Each party hereby expressly agrees to the
jurisdiction of the courts of the State of New York and hereby waives any claim
or defense of inconvenient forum.
14. Mailing
of Notices, etc. All notices and other communications under this Warrant
(except payment) shall be in writing and shall be sufficiently given if sent
to
the Holder or the Company, as the case may be, by hand delivery, private
overnight courier, with acknowledgment of receipt, or by registered or certified
mail, return receipt requested, as follows:
Holder:
|
To
Holder's address on page 1 of this Warrant
Attention:
Name of Holder
|
The
Company:
|
To
the Company's Principal Executive Offices
Attention:
President
|
or
to
such other address as any of them, by notice to the others may designate from
time to time. Time shall be counted to, or from, as the case may be, the
delivery in person or by overnight courier or five (5) business days after
mailing.
TRUE NORTH ENERGY CORPORATION | ||
By:
|
/s/ Xxxx Folnovic | |
Name: Xxxx Folnovic | ||
Title: President |
NOTICE
OF EXERCISE
TO: True
North
Energy Corporation
1.
The
undersigned hereby elects to purchase ________ shares of the True North Energy
Corporation, pursuant to terms of the attached Warrant, and tenders herewith
payment of the Exercise Price of such shares in full, together with all
applicable transfer taxes, if any.
2.
Please
issue a certificate or certificates representing said shares of the Common
Stock
in the name of the undersigned or in such other name as is specified
below:
3.
The
undersigned represents that it will sell the shares of Common Stock pursuant
to
an effective Registration Statement under the Securities Act of 1933, as
amended, or an exemption from registration thereunder.
(Name)
|
|
(Address)
|
|
(Taxpayer
Identification Number)
|
(Print Name of Holder) | ||
By: | ||
Title: | ||
Date: |