THIS WARRANT AND THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). THE
HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF THE
CORPORATION THAT SUCH SECURITIES MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED
ONLY (A) TO THE CORPORATION, (B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH
RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (C) PURSUANT TO THE EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER, IF
AVAILABLE, OR (D) IN COMPLIANCE WITH CERTAIN OTHER PROCEDURES SATISFACTORY TO
THE CORPORATION.
THIS WARRANT WILL BE VOID AND OF NO VALUE UNLESS EXERCISED WITHIN THE LIMITS
HEREIN PROVIDED.
THIS WARRANT IS NON-TRANSFERABLE
ASIA PACIFIC ENTERPRISES, INC.
(Incorporated under the laws of the State of Delaware)
Right to Purchase
307,693 Common shares
par value $0.0001 per share
WARRANT FOR THE PURCHASE OF COMMON SHARES
THIS IS TO CERTIFY THAT, for value received, Xxxx and Xxxxxx Bank,
(hereinafter called the "holder"), is entitled to subscribe for and purchase
307,693 fully paid and non-assessable common shares, par value $0.0001 per
share, in the capital stock of Asia Pacific Enterprises, Inc. (hereinafter
called the "Corporation") at any time prior to 4:30 p.m. (Pacific time) on May
25, 2000, at an exercise price of $3.25 per share, subject, however, to the
provisions and upon the terms and conditions hereinafter set forth.
The rights represented by this Warrant may be exercised by the holder
hereof, in whole or in part (but not as to a fractional share), by completing
the subscription form attached hereto as Schedule "A" and surrendering this
Warrant at the office of the Corporation, 1750 - 0000 Xxxx Xxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx X0X 0X0, together with a certified check
payable to or to the order of the Corporation in payment of the purchase price
for the number of shares subscribed for.
In the event of any exercise of the rights represented by this Warrant,
certificates for the shares so purchased shall be delivered to the holder hereof
within a reasonable time, not exceeding ten (10) days after the rights
represented by this Warrant shall have been so exercised, and, unless this
Warrant has expired, a new Warrant representing the number of shares, if any,
with respect to which this Warrant shall not then have been exercised shall also
be issued to the holder hereof within such time.
The Corporation covenants and agrees that all shares which may be issued
upon the exercise of the rights represented by this Warrant will, upon issuance,
be fully paid and non-assessable and free of all liens, charges and
encumbrances. The Corporation further covenants and agrees that, during the
period within which the rights represented by this Warrant may be exercised, the
Corporation will at all times have authorized and reserved a sufficient number
of Common shares to provide for the exercise of the rights represented by this
Warrant.
THE FOLLOWING ARE THE TERMS AND CONDITIONS REFERRED TO IN THIS WARRANT:
The rights evidenced by this Warrant are to purchase shares in the capital
stock of the Corporation as they were constituted on May 25, 1999. If there
shall, prior to the exercise of any of these rights evidenced hereby, be any
reorganization of the authorized capital of the Corporation by way of
consolidation, merger, sub-division, amalgamation or otherwise, or the payment
of any stock dividends, then there shall automatically be an adjustment in
either or both the number of shares of the Corporation which may be purchased
pursuant hereto or the price at which such shares may be purchased, by
corresponding amounts, so that the rights evidenced hereby shall thereafter be
as reasonably as possible equivalent to those originally granted hereby. The
Corporation shall have the sole and exclusive power to make adjustments as it
considers necessary and desirable.
This Warrant shall not entitle the holder hereof to any rights as a
shareholder of the Corporation, including, without limitation, voting rights.
Neither this Warrant nor the rights represented hereby are transferable in
whole or in part. The holder acknowledges that any shares or other securities
issued upon the exercise from time to time of the rights hereunder will be
subject to restrictions on disposition, and may not be transferred, except
pursuant to a statutory exemption and that a legend to that effect will be
endorsed on any certificates representing securities issued hereunder.
None of this Warrant, the rights represented hereby or any of the
securities issuable on the exercise hereof (collectively the "Securities") have
been registered under the United States Securities Act of 1993, as amended (the
"U.S. ACT") or any applicable securities laws of any state. Accordingly, this
Warrant does not constitute an offer to any person within the United States or
to any U.S. person (within the meaning of Regulation S under the U.S. Act) and
may not be exercised within the United States or by or on behalf of any U.S.
person (within the meaning of Regulation S under U.S. Act). The holder, by
acquiring this Warrant and the rights represented hereby or any Securities,
agrees with and for the benefit of the Corporation that it will not offer,
distribute, sell, pledge or otherwise transfer or dispose of the Securities
except to (i) the Corporation; (ii) a person who, in the opinion of counsel
satisfactory to the Corporation and its counsel, is a person to whom such
Securities may be legally transferred without registration and without the
delivery of a current prospectus under the U.S. Act with respect thereto; (iii)
in reliance upon Rule 904 of Regulation S under the U.S. Act and in compliance
with local laws and regulations, and then only upon execution and delivery of a
certificate in the form attached hereto as Annex A to the Corporation; (iv)
pursuant to an effective registration statement under the U.S. Act; (v) pursuant
to an exemption from registration under the U.S. Act provided by Rule 144
thereunder, if available; (vi) in a transaction that does not require
registration under the U.S. Act or any applicable United States state laws and
regulations governing the offer and sale of securities, and it has therefor
furnished to the Corporation an opinion of counsel of recognized standing
reasonably satisfactory to the Corporation. Each certificate representing the
Securities or any other securities issued in respect of the Securities upon any
stock split, stock dividend, recapitalization, merger, consolidation or similar
event, shall be stamped or otherwise imprinted with a legend substantially in
the following form (in addition to any legend required under applicable state
securities laws):
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1993, AS AMENDED (THE "SECURITIES ACT"). THE HOLDER
HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF THE CORPORATION
THAT SUCH SECURITIES MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO
THE CORPORATION (B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT, (C) PURSUANT TO THE EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER, IF
AVAILABLE, OR (D) IN COMPLIANCE WITH CERTAIN OTHER PROCEDURES SATISFACTORY TO
THE CORPORATION."
IN WITNESS WHEREOF Asia Pacific Enterprises, Inc. has caused this Warrant
to be signed by its duly authorized officers and this warrant to be dated May
25, 1999.
ASIA PACIFIC ENTERPRISES INC.
Per: /s/ Xxxxxx Rollke
Director
SCHEDULE "A"
SUBSCRIPTION FORM
TO: ASIA PACIFIC ENTERPRISES, INC. (the "Corporation")
Dear Sirs:
The undersigned hereby exercises the right to purchase and hereby subscribes for
__________________ Common shares in the capital stock of the Corporation
referred to in the attached Warrant according to the conditions thereof and
herewith makes payment by certified cheque of the subscription price in full for
the said shares.
The undersigned HEREBY CERTIFIES, with the intent that the Corporation rely on
such certification in issuing Common shares pursuant to the exercise of the
attached Warrant, that all of the representations and warranties and all of the
acknowledgements contained in the Subscription Agreement dated May 21, 1999
between the Corporation and Xxxx and Xxxxxx Bank and the letter from Xxxx and
Xxxxxx Bank to the Corporation dated May 28, 1999.
The undersigned HEREBY CERTIFIES that it is not a "U.S. Person", within the
meaning of Regulation S made under the U.S. Securities Act of 1993, as amended
(the "Securities Act") and is not exercising this Warrant on behalf of any U.S.
Person..
The undersigned represents that it has had access to such current public
information concerning the Corporation as it considers necessary in connection
with its investment decision and understands that the Common Shares have not
been and will not be registered under the Securities Act and agrees that it will
only resell the Common Shares issuable upon exercise hereof to the Corporation,
outside the United States in accordance with Rule 904 of Regulation S under the
Securities Act, pursuant to the exemption from registration under the Securities
Act provided by Rule 144 under the Securities Act, if available, or in
compliance with certain other procedures satisfactory to the Corporation. The
Common Shares issuable upon exercise hereof will bear a legend to the foregoing
effect.
Please issue a certificate in the name of the undersigned for the shares being
purchased, as follows:
NAME:_________________________________________________________________________
ADDRESS: _____________________________________________________________________
If applicable, please deliver to ________________________ a Warrant certificate
in respect of the balance of the Common shares referred to in the attached
Warrant but not presently subscribed for.
DATED this ________ day of _________, ________.
_______________________________
(signature)
Warrants may not be exercised within the United States or by or on behalf of any
"U.S. person", within the meaning of Regulation S under the Securities Act and
no Common Shares will be issued to any person who has set out an address in the
United Shares nor shall any certificates representing Common Shares be delivered
to any U.S. address.
