EXHIBIT 10.12a
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SUBSCRIPTION AGREEMENT
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SUBSCRIPTION AGREEMENT (this "Agreement") made as of the date set forth on
the signature page hereof among, EMPIRE MINERALS CORP. (formerly known as Xacord
nrp.)., a Delaware corporation, having a place of business 000 Xxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx XX 00000 (the "Company"), and the undersigned, as identified on
the `Signature Page' below (the "Subscriber" or "Investor").
WITNESSETH:
WHEREAS, the Company is offering up to an aggregate of 5,000,000 special
warrants (the "Special Warrants") at a subscription price of US$0.50 per Special
Warrant, with each Special Warrant being convertible upon satisfaction of the
Conversion Conditions (as hereinafter defined) into one share of common stock of
the Company (the "Share(s)") in the capital of the Company at a price of
US$0.50 and one half of one Common Share purchase warrant (each whole warrant, a
"Warrant"). Each Warrant will entitle the holder thereof to acquire one Share at
an exercise price of US$0.65 for a period of two years from the Closing Date.
The Company has reserved right to increase the number of Shares sold in this
"Offering" (as hereinafter defined) or sell additional Shares in one or more
similar offering at no less than the price per Share herein if offered within 90
days from the date of closing of this Offering (the "Closing )ate").
WHEREAS, the Special Warrants will be convertible into underlying Shares
and Warrants automatically upon the third day following: (i) the date on which a
receipt is issued by the securities regulatory authorities for a (final)
prospectus in relation to the filing of a (final) long form prospectus
qualifying the distribution of the Shares and Warrants in Canada; (ii) the
Toronto Stock Exchange issuing notice of the approval of the Shares and Shares
underlying the Warrants for trading thereon; (iii) a resale registration
statement being declared effective clearing the distribution of the Shares and
Warrants in the United States; and (iv) the Company confirming in writing to the
special warrant agent that the conditions in (i), (ii) and (iii) above have been
fulfilled and that all other regulatory or other approvals have been received
(the completion of the items set out at (i)-(iv) above being the "Conversion
Conditions").
WHEREAS, the Offering shall terminate at the Company's discretion without
notice to the Subscriber or on such date on which all of the offered Special
Warrants are sold. The Offering is not contingent upon the sale of any minimum
number of Special Warrants;
WHEREAS, the Company is offering (the "Offering") the Special Warrants to a
limited number of "accredited investors" (as that term is defined by Rule 501(a)
of Regulation D ("Regulation D") of the Securities Act of 1933, as amended (the
"Act"); and
WHEREAS, the Subscriber desires to purchase the number of Special
Warrants set forth on the Signature Page hereof on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the promises and the mutual
representations and covenants hereinafter set forth, the parties hereto do
hereby agree as follows:
ARTICLE I
SUBSCRIPTION FOR SPECIAL WARRANTS AND TERMS OF SUBSCRIPTION
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Subject to the terms and conditions hereinafter set forth, Subscriber
hereby subscribes for and agrees to purchase from the Company, and the Company
agrees to sell to Subscriber, the number of Special Warrants as is set forth
upon the Signature Page hereof against payment made by personal or business
check, or money order made payable to Empire Minerals Corp. in connection with
the Subscription.
1.1 The Subscriber hereby authorizes and directs the Company to deliver the
certificate for the Special Warrants to be issued to the Subscriber pursuant to
this Agreement to the address indicated on the Signature Page hereto.
1.2 The Company's agreement with each Subscriber is a separate agreement
and the sale of Special Warrants to each Subscriber is a separate sale.
1.3 The Subscriber understands, acknowledges and agrees with the Company
that this subscription may be rejected, in whole or in part, by the Company, in
the sole and absolute discretion of the Company, at any time subscribed for by
the Subscriber, notwithstanding prior receipt by the Subscriber of notice of
acceptance of the Subscriber's subscription. The Subscriber understands,
acknowledges and agrees with the Company that, except as otherwise set forth
herein, the subscription hereunder is irrevocable by the Subscriber, except as
required by law, and, as such, the Subscriber is not entitled to cancel,
terminate or revoke this Agreement or any agreements of the Subscriber
hereunder.
1.4 The Company may at any time: (i) increase the offering price for
subscriptions not executed; or (ii) terminate the Offering.
1.5 In the event that the Conversion Conditions are not met by December 31,
2007, the Company shall pay each subscriber following the failure to meet such
deadline 1% of the total subscription amount paid by each subscriber monthly in
arrears in US Dollars within ten days of the end of each month or part thereof
that the Conversion Conditions are not met.
ARTICLE II
REPRESENTATIONS BY SUBSCRIBER
-----------------------------
In addition to the representations and warranties set forth in Article V
and elsewhere in this Agreement, the Subscriber, represents, warrants and
acknowledges to the Company that:
2.1 The Subscriber recognizes that: (i) the purchase of the Special
Warrants involves a high degree of risk, is speculative and only investors who
can afford the loss of their entire investment should consider investing in the
Company and/or the Special Warrants; (ii) the subscriber may not be able to
liquidate its investment; (iii) transferability of the Shares is extremely
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limited; and, (iv) in the event of a disposition of the Special Warrants, the
Subscriber would sustain the loss of its entire investment.
2.2 The Subscriber represents that the Subscriber is an "accredited
investor", as indicated by the Subscriber's responses to the questions contained
in Article V.
2.3 The Subscriber hereby acknowledges that it has been furnished with, (i)
the Confidential Memorandum Supplement containing additional information
relating to the Company, including risk factors (the "Confidential Memorandum").
This Agreement and the Confidential Memorandum are collectively referred to
herein as the "Offering Documents." The Subscriber has carefully reviewed the
Offering Documents and is familiar with and understands the terms of the
Offering, including the rights to which the Subscriber is entitled under this
Agreement. The Subscriber specifically acknowledges and is familiar with the
Risk Factors set forth in the Confidential Memorandum.
2.4 The Subscriber further represents and warrants that the Subscriber has
been furnished by the Company during the course of this transaction with all
information regarding the Company which the Subscriber, as well as its
investment advisor, attorney and/or accountant, has requested or desired to
know, and has been afforded the opportunity to ask questions of and receive
answers from duly authorized officers or other representatives of the Company
concerning the terms and conditions of the Offering, and has received any
additional information which the Subscriber has requested concerning the terms
and conditions of the Offering and the Company.
2.5 The Subscriber has relied solely upon the Offering Documents provided
by the Company in making the Subscriber's decision to invest in the Special
Warrants and has not relied upon any other representation or other information
(whether oral or written) from the Company, or any agent, employee or affiliate
of the Company or any other third party other than as set forth in the Offering,
and the results of Subscriber's own independent investigation. The Subscriber
acknowledges and agrees that it shall not be entitled to seek any remedies with
respect to the offering from any party other than the Company.
2.6 The Subscriber represents that no Special Warrants were offered or sold
to it by means of any form of general solicitation or general advertising, and
in connection therewith the Subscriber did not: (A) receive or review any
advertisement, article, notice or other communication published in a newspaper
or magazine or similar media or broadcast over television or radio whether
closed circuit, or generally available; or (B) attend any seminar meeting or
industry investor conference whose attendees were invited by any general
solicitation or general advertising.
2.7 The Subscriber understands that the Special Warrants have not been
registered under the Act by reason of a claimed exemption under the provisions
of the Act which depends, in part, upon the Subscriber's investment intention.
In this connection, the Subscriber hereby represents that the Subscriber is
purchasing the Special Warrants for the Subscriber's own account for investment
purposes only and not with a view toward the resale or distribution to others
and has no contract, undertaking, agreement or other arrangement, in existence
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or contemplated, to sell, pledge, assign or otherwise transfer the Special
Warrants to any other Person.
2.8 The Subscriber consents to the placement of a legend on any certificate
or other document evidencing the Special Warrants, Shares and Warrants
substantially as set forth below, that such Special Warrants, Shares and
Warrants have not been registered under the Act or any state securities or "blue
sky" laws and setting forth or referring to the restrictions on transferability
and sale thereof contained in this Agreement. The Subscriber is aware that the
Company will make a notation in its appropriate records with respect to the
restrictions on the transferability of the Shares.
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE OR RESOLD
EXCEPT AS PERMITTED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS
PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. THE ISSUER OF THESE
SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE
SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR
RESALE 1S IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE SECURITIES
LAWS.
2.9 The Subscriber agrees to supply the Company, within five (5) days after
the Subscriber receives the request therefore from the Company, with such
additional information concerning the Subscriber as the Company deems necessary
or advisable.
2.10 The Subscriber understands, acknowledges and agrees with the Company
that the Offering is intended to be exempt from registration under the Act by
virtue of Section 4(2) of the Act and the provisions of Regulation D thereunder,
which is in part dependent upon the truth, completeness and accuracy of the
statements made by the Subscriber and Subscriber will hold the Company harmless
from all liability, damages, costs and expenses resulting from any breach
thereof.
2.11 The Subscriber acknowledges that the information contained in the
Offering Documents or otherwise made available to the Subscriber is confidential
and non-public and agrees that all such information shall be kept in confidence
by the Subscriber and neither be used by the Subscriber for the Subscriber's
personal benefit (other than in connection with this Subscription) nor disclosed
to any third party for any reason, notwithstanding that the Subscriber's
Subscription may not be accepted by the Company.
2.12 The Company is under no obligation to, and there can be no assurance
that, the Company will receive or accept subscriptions for the aggregate number
of Special Warrants that may be sold by the Company pursuant to the Offering.
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ARTICLE III
REPRESENTATIONS BY AND COVENANTS OF THE COMPANY
-----------------------------------------------
3.1 The Company hereby represents and warrants to the Subscriber that, (i)
the Company has the requisite corporate power and authority to enter into and
perform its obligations under this Agreement and to sell and issue the Special
Warrants and perform its obligations with respect to the Agreement in accordance
with the terms hereof and (ii) when executed and delivered by the Company, the
Agreement will be duly executed and delivered by the Company.
3.2 The Company hereby covenants with the Subscriber that it will use its
best efforts to cause the Conversion Conditions to be met on before December 31,
2007, and if applicable, thereafter.
ARTICLE IV
MISCELLANEOUS
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4.1 Any notice or other communication to the Company given hereunder shall
be 1 med sufficient if in writing and sent by registered or certified mail,
return receipt requested, delivered by hand against written receipt therefore.
Notices shall be deemed to have been given or delivered on the date of mailing,
except notices of change of address, which shall be deemed to have been given
or delivered when received. The address for such notices and communications
shall be as follows:
If to the Company: Empire Minerals Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx XX 00000
Attn.: President
If to a Subscriber: To the address set forth under such Subscriber's
name on the Signature Page hereto.
4.2 Except as otherwise provided herein this Agreement shall not be
changed, modified or amended except by a writing signed by the parties to be
charged, and this Agreement may not be discharged except by performance in
accordance with its terms or by a writing signed by the party to be charged.
4.3 This Agreement shall be binding upon and inure to the benefit of the
parties hereto and to their respective heirs, legal representatives, successors
and assigns. This agreement sets forth the entire agreement and understanding
between the parties as to the subject matter hereof and merges and supersedes
all prior discussions, agreements and understandings of any and every nature
among them. The Subscriber may not assign its rights and/or obligations under
this Agreement without the express written consent of Company.
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4.4 NOTWITHSTANDING THE PLACE WHERE THIS AGREEMENT MAY BE EXECUTED BY ANY
OF THE PARTIES HERETO, THE PARTIES EXPRESSLY AGREE THAT ALL THE TERMS AND
PROVISIONS HEREOF SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS
OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. IN
THE EVENT THAT A JUDICIAL PROCEEDING IS NECESSARY, THE EXCLUSIVE FORUMS FOR
RESOLVING DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT ARE EITHER THE
SUPREME COURT OF THE STATE OF NEW YORK IN AND FOR THE COUNTY OF NEW YORK OR THE
FEDERAL COURTS FOR SUCH STATE AND COUNTY. THE PARTIES HEREBY IRREVOCABLY CONSENT
TO THE JURISDICTION OF SUCH COURTS AND AGREE TO SAID VENUE.
4.5 The holding of any provision of this Agreement to be invalid or
unenforceable by a court of competent jurisdiction shall not affect any other
provision of this Agreement, which shall remain in full force and effect. If any
provision of this Agreement shall be declared by a court of competent
jurisdiction to be invalid, illegal or incapable of being enforced in whole or
in part, such provision shall be interpreted so as to remain enforceable to the
maximum extent permissible consistent with applicable law and the remaining
conditions and provisions or portions thereof shall nevertheless remain in full
force and effect and enforceable to the extent they are valid, legal and
enforceable, and no provisions shall be deemed dependent upon any other covenant
or provision unless so expressed herein.
4.6 It is agreed that a waiver by either party of a breach of any provision
of this Agreement shall not operate, or be construed, as a waiver of any
subsequent breach by that same party.
4.7 The parties agree to execute and deliver all such further documents,
agreements and instruments and take such other and further action as may be
necessary or appropriate to carry out the purposes and intent of this Agreement.
4.8 This Agreement may be executed in two or more counterparts each of
which shall be deemed an original, but all of which shall together constitute
one and the same instrument.
4.9 The Subscriber agrees not to issue any o public statement with respect
to the Subscriber's investment or proposed investment in the Company or the
terms of any agreement or covenant between them and the Company without the
Company's prior written consent, except such disclosures as may be required
under applicable law or under any applicable order, rule or regulation.
4.10 The Subscriber represents and warrants that it has not engaged,
consented to nor authorized any broker, finder or intermediary to act on its
behalf, directly or indirectly, as a broker, finder or intermediary in
connection with the transactions contemplated by this Agreement. The Subscriber
hereby agrees to indemnify and hold harmless the Company from and against all
fees, commissions or other amounts owing to or claimed by any such person or
firm acting on behalf of the Subscriber hereunder.
4.11 Nothing in this Agreement shall create or be deemed to create any
rights in any person or entity not a party to this Agreement.
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ARTICLE V
CONFIDENTIAL INVESTOR QUESTIONNAIRE
-----------------------------------
5.1 Each person who desires to invest in Company, purchasing Shares as
pursuant to this Agreement and the Offering, must carefully and accurately
complete this Article V. The purpose of this questionnaire is to allow the
Company to make a reasonable determination as to whether each prospective
investor is qualified under applicable securities laws to purchase shares and/or
invest monies. This questionnaire completion and/or receipt of this
questionnaire does not constitute an offer to sell or a solicitation of an offer
to buy a security.
5.2 ACCREDITED INVESTOR. The Subscriber represents and warrants that he,
she or it is an 'Accredited Investor' and comes within one category marked
below, and that for any category marked, Subscriber has truthfully set forth,
where applicable, the factual basis or reason the Subscriber comes within that
category. ALL INFORMATION IN RESPONSE TO THIS SECTION WILL BE KEPT STRICTLY
CONFIDENTIAL except as otherwise required by law. The undersigned agrees to
furnish any additional information which the Company deems necessary in order to
verify the answers set forth below.
Category A ____ The undersigned 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.
Category B ____ The undersigned is an individual (not a partnership,
corporation, etc.) who had an income in excess of
$200,000.00 in each of the two most recent years, or joint
income with his or her spouse in excess of $300,000.00 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
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any unrealized capital appreciation) and has a reasonable
expectation of reaching the same income level in the current
year.
Category C ____ The undersigned is a director or executive officer of the
Company which is issuing and selling the Shares.
Category D ____ The undersigned is a bank; a savings and loan association;
insurance company; registered investment company; registered
business development company; licensed small business
investment company ("SBIC"); or employee benefit plan within
the meaning of Title 1 of ERISA and (a) the investment
decision is made by a plan fiduciary which is either a bank,
savings and loan association, insurance company or
registered investment advisor, or (b) the plan has total
assets in excess of $5,000,000 or (c) is a self directed
plan with investment decisions made solely by persons that
are accredited investors. (describe entity)
____________________________________________________________
Category E ____ The undersigned is a private business development company as
defined in section 202(a) (22) of the Investment Advisors
Act of 1940. (describe entity) _____________________________
____________________________________________________________
Category F ____ The undersigned is either a corporation, partnership,
Massachusetts business trust, or non-profit organization
within the meaning of Section 501(c)(3) of the Internal
Revenue Code, in each case not formed for the specific
purpose of acquiring the Shares and with total assets in
excess of $5,000,000. (describe entity) ____________________
____________________________________________________________
Category G ___ The undersigned is a trust with total assets in excess of
$5,000,000, not formed for the specific purpose of acquiring
the Shares where the purchase is directed by a
"sophisticated investor" as defined in Regulation
506(b)(2)(ii) under the Act.
Category H ____ The undersigned is an entity (other than a trust) in which
all of the equity owners are "accredited investors" within
one or more of the above categories. If relying upon this
Category alone, each equity owner must complete a separate
copy ofthis Agreement. (describe entity)
____________________________________________________________
Category I ____ The undersigned is not within any of the categories above
and is therefore not an accredited investor.
The Subscriber agrees to notify the Company at any time on or prior to the
purchase and issuance of the Shares in the event that the representations and
warranties herein, and in this Agreement, shall cease to be true, accurate and
complete.
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5.3 MANNER IN WHICH TITLE IS TO BE HELD (circle one)
(a) Individual Ownership
(b) Community Property
(c) Joint Tenant witll Right of Survivorship (both parties must sign)
(d) *Partnership
(e) Tenants in Common
(f) *Company
(g) *Trust
(h) *Other
*If the Subscriber is an entity asterisked above, please complete the attached
Certificate of Signatory.
5.4 NASD AFFILIATION
Are you affiliated or associated with an NASD member firm (please check
one):
Yes ________ No _________
If Yes, please describe:
___________________________________________________________________________
___________________________________________________________________________
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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SIGNATURE PAGE
Acknowledges and agrees to the terms of the foregoing Subscription Agreement.
Dated: ________________,2007.
By:________________________________ By:_____________________________________
Signature Signature (if purchasing jointly)
___________________________________ ________________________________________
Name Typed or Printed Name Typed or Printed
___________________________________ ________________________________________
Entity Name
___________________________________ ________________________________________
Address Address
___________________________________ ________________________________________
City, State and Zip Code City, State and Zip Code
___________________________________ ________________________________________
Telephone Telephone
___________________________________ ________________________________________
Facsimile Facsimile
___________________________________ ________________________________________
EIN Tax ID # or Social Security # EIN Tax ID # or Social Security #
___________________________________ X $100,000 - US$0.50
Number of Units Subscribed Purchase Price
For by Subscriber
Name in which Shares should be issued/held:.____________________________________
If not Subscriber, Company must be notified in advance and approve the same.
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This Subscription Agreement is agreed to and accepted as ___________, 2007.
EMPIRE MINERALS CORP.
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Chairman & ChiefE Executive
Officer
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EXHIBIT 10.12b
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THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE ACT OR RESOLD EXCEPT AS
PERMITTED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS PURSUANT TO
REGISTRATION OR EXEMPTION THEREFROM. THE ISSUER OF THESE SECURITIES MAY REQUIRE
AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE
EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IN COMPLIANCE WITH THE ACT AND ANY
APPLICABLE STATE SECURITIES LAWS.
SPECIAL WARRANT CERTIFICATE
EMPIRE MINERALS CORP.
(Incorporated under the laws of the State of Delaware)
SPECIAL WARRANT
CERTIFICATE NO. SW-007 3,000 000 SPECIAL WARRANTS
THIS IS TO CERTIFY THAT, for value received, ITF St. Xxxxx Port Capital Ltd.
(the "Special Warrantholder, or "Holder") is the registered holder of the number
of special warrants (the "Special Warrants")stated above and is entitled to
receive for each Special Warrant evidenced by this certificate, in the manner
and subject to the restrictions and adjustments set forth herein, one unit (a
"Unit") of Empire Minerals Corp. (the "Corporation") for no further payment.
Each Unit shall consist, subject to adjustments, of one share of common stock of
the Corporation (a "Common Share"), par value US$0.50 per share and in relation
to each share issuable, after adjustment hereunder, one half of one share
purchase warrant (each whole warrant, a "Warrant") Each Warrant is exercisable
for one Common Share at an exercise price of US$0.65 for a period of two years
from the date hereof (the "Closing Date"). The Warrants shall be governed by
certificates substantially in the form and terms attached hereto as Schedule
"B". All capitalized terms used but not otherwise defined herein shall have the
meaning ascribed to such terms in the subscription agreement between the Special
Warrantholder and the Corporation dated the date hereof.
The Special Warrants evidenced by this certificate will be automatically
exercised (the "Automatic Exercise") into Units, without any action, including
additional payment, on the part of the Special Warrantholder, on the third
Business Day following: (i) the date on which a receipt is issued by the
securities regulatory authorities for a (final) prospectus in relation to the
filing of a (final) long form prospectus qualifying the distribution of the
Common Shares and Warrants in Canada; (ii) the Toronto Stock Exchange issuing
notice of the approval of the Common Shares and shares underlying the Warrants
for trading thereon; (iii) a resale registration statement being declared
effective clearing the distribution of the Common Shares and Warrants in the
United States, and (iv) the Corporation confirming in writing to the special
warrant agent that the conditions in (i), (ii) and (iii) above have been
fulfilled and that all other regulatory or other approvals have been received
(the f the items set out at (i) - (iv) above being the "Conversion Conditions").
The obligation to file a resale registration statement clearing the distribution
of the Common Shares and Warrants in the United States, shall continue
notwithstanding the fulfilment of or default in the fulfilment of the Conversion
Conditions set out in items (i), (ii) or (iv).
The right to acquire the Units may be exercised at the option of the Special
Warrantholder at any time from the Closing Date and prior to the Automatic
Exercise by:
(a) duly completing and executing the exercise form. (the "Exercise :Form")
attached hereto as Appendix "A"; and
2.
(b) surrendering this warrant certificate (the "Special Warrant Certificate"),
with the Exercise Form to the Corporation at its principal address at 000
Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000
The Special Warrants represented by this Special Warrant Certificate shall be
deemed to be surrendered only upon personal delivery hereof or, if sent by mail
or other means of transmission, upon actual receipt thereof by the Corporation
at the office referred to above, unless the Corporation accepts another form of
delivery.
Upon the exercise of Special Warrants, the person or persons in whose name or
names the Units issuable upon subscription of the Units are to be issued shall
be deemed for all purposes to be the Special Warrantholder or Special
Warrantholders of record of such Units and upon surrender of these Special
Warrants, the Corporation covenants that it will cause a certificate or
certificates representing such Units to be delivered or mailed to the person or
persons at the address or addresses specified in by such person or persons
within three Business Days.
The registered Special Warrantholder of these Special Warrants may acquire any
lesser number of Units than the number of Units which may be purchased for the
Special Warrants represented by this Special Warrant Certificate. In such event,
the Special Warrantholder shall be entitled to receive a new Special Warrant
Certificate for the balance of the Units which may be purchased. No fractional
Common Shares or Warrants will be issued and no cash consideration will be paid
in lieu of fractional Common Shares or Warrants.
In the event of certain alterations to the Common Shares, including any
subdivision, consolidation or reclassification, and in the event of certain
forms of reorganization of the Corporation, including any amalgamation, merger
or arrangement, the Special Warrantholders of Special Warrants shall, upon
subscription of the Special Warrants following the occurrence of any of those
events, be entitled to receive the same number and kind of securities that they
would have been entitled to receive had they subscribed for their Special
Warrants immediately prior to the occurrence of those events more fully
described below.
The certificates representing the Common Shares and Warrants, if issued prior to
a resale registration statement becoming effective, and all certificates issued
in substitution or conversion thereof, will bear a legend substantially in the
following form:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE OR RESOLD
EXCEPT AS PERMITTED UNDER THE ACT AND APPLICABLE STATE SECUREEIES LAWS
PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. THE ISSUER OF THESE
SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE
SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR
RESALE IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE SECURITIES
LAWS."
In addition, Warrants shall bear another legend substantially in the following
form:
"THIS WARRANT [AND IF TRE REGISTRATION STATEMENT HAS NOT BECOME EFFECTIVE
AT THE TIME OF ISSUANCE OF THE WARRANTS, ADD THE FOLLOWING: AND THE
SECURITIES ISSUABLE UPON EXERCISE HEREOF] HAS NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR THE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THIS WARRANT MAY NOT BE
EXERCISED BY OR ON BEHALF OF A U.S. PERSON OR PERSON IN THE UNITED STATES
UNLESS THIS WARRANT AND SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT
HAVE BEEN REGISTERED UNDER THE 1933 ACT AND THE APPLICABLE SECURITIES
3.
LEGISLATION OF ANY SUCH STATE OR AN EXEMPTION FROM SUCH REGISTRATION
REQUIREMENTS IS AVAILABLE. "UNITED STATES" AND "U.S. 1'FRSON" ARE AS
DEFINED BY REGULATIONS "UNDER TIIE1 933 ACT."
provided that, if at any time, in the opinion of counsel to the Corporation,
such legends are no longer necessary or advisable under any such securities
laws, or the holder of any such legended certificate, at the holder's expense
provides the Corporation with evidence satisfactory in form and substance to the
Corporation (which may include an opinion of counsel satisfactory to the
Corporation) to the effect that such legends are not required, such legended
certificate may thereafter he surrendered to the Corporation in exchange for a
certificate which does not bear such legend.
1.1 Adjustment of Number of Common Shares
(a) Adjustment: The rights of the holder of any Special Warrant, including the
number of Common shame, issuable upon the conversion of such Special
Warrant, shall be adjusted from time to time in the events and in the
manner provided in, and in accordance with the provisions oft this section
1.1. the Share Rate (as defined hereinafter) in effect on any date shall be
subject to adjustment from time le time as follows:
(i) If at any time fmm the date hereof to the date of Automatic Exercise
(the "Adjustment Period") the Corporation shall.
A. fix a record date for the issue of, or issue. common shares to
the holders of all or substantially, all of the outstanding
Common Shares by way of a stock dividend;
B. fix a record date for the distribution to, or make a distribution
to, the holders of all or substantially all of the outstanding
Common Shares payable in common shares or securities convertible
into common shares (other than a distribution which constitutes a
Rights Offering (as defined hereinafter) or a Special
Distribution (as defined hereinafter));
C. subdivide the outstanding common shares shares into a greater
number of common shares; or
D. consolidate the outstanding common shares into a smaller number
of common shares:
(any of the events in subclauses A, B, C and D above being herein
called a "Common Share Reorganization"), the Share Rate shall be
adjusted on the earlier of the record date on which holders of Common
Shares are determined for the purposes of the Common Share
Reorganization and the effective date of the Common Share
Reorganization to the number determined by multiplying the Share Rate
in effect immediately prior to such record date or effective date, as
the case may be, by a fraction:
A. the numerator of which shall be the number of common shares which
will be outstanding immediately after 'it ing effect to such
Common Mate Reorganization (including in the case of a dish
ihteion of securities exercisable or convertible into Common
Shares the number of Common Shares which would be outstanding had
such securities been exercised or converted into Common Shares on
such date); and
B. the denominator of which shall be the number of common shares
outstanding on such record date or effeetive date, as the case
may be, before giving effect to such Common Share Reorgination.
4.
To the extent that any adjustment in the Share Rate occurs pursuant to
this paragraph 1.1(a)(i) as a result of the fixing by the Corporation
of a record date for the issue or distribution of securities
exercisable or convertible into Common Shares. the Share Rate shall be
readjusted immediately after the expiry of any relevant exercise or
conversion right to the Share Rate which would then be in effect based
upon the number of Common Shares actually issued and remaining
issuable after such espiry and shall be further readjusted in such
manner upon the expiry of any further such right.
(ii) it at any time during the Adjustment Period the Corporation shall fix
a record date for the issue or distribution to the hoiders of all or
substantially all of the outstanding Common Shares of rights, options
or warrants pursuant to which the holders thereof are entitled, during
a period expiring not more than forty-five days after the record date
for such issue (such period being the "Rights Period"), to subscribe
for or purchase common shares or securities exercisable or convertible
into Common Shares at a price per share to the holder thereof (or in
the case of securities exercisable or convertible into common shares,
at an exercise or conversion price per share) which is less than 95%
of the Current Market Price (as defined hereinafter) at the Common
Shares at, of such record date (any of such events being called a
"Rights Offering"), the Share Rate shall be adjusted effective
immediately after the record date for such Rights Offering to the
number determined by multiplying the Share Rate in effect on such
record date by a fraction.
A. the numerator of which shall be the sum of the number of Common
Shares outstanding on such record date and the number of Common
Shares offered pursuant to the Rights Offering (including in the
case of the issue or distribution of securities exercisable or
convertible into Common Shares the number of Common Shares for or
into which such securities may he exercised or converted); and
B. the denominator of which shall be the aggregate of:
I. the number of Common Shares outstanding on the record date
for the Rights Offering, and
II. the quotient determined by dividing
(1) either (a) the product of the number of Common Shares
offered during the Rights Period pursuant to the Rights
Offering and the Price hIlirh such Common Shares are
offered, or, (h) the product of Me t el the or
conversion price of the securities so offered and the
numiier of Common Shares for or into which the
securities offered pursuant to the Rights Offering may
be exercised or converted, as the case may be, by
(2) the Current Market Price of the Common Shares as of the
record date the Rights Offering.
If by the terms of the rights, options, or warrants referred to in
this paragraph 1.1(i), there is more than one purchase, exercise or
conversion price per common share, the aggregate price of the total
number of addititid common shares offered for subscription or
purchase, or the aggregate exercise, or canversien price of the
exercisable or convertible securities so offered, shall be calculated
for purposes of the adjustment on the basis of the lowest purchase,
exercise or conversion price per Common Share, as the case may be. any
Common shares owned by or held for the account of the Corporation
shall be deemed not to be outstanding for the purpose of any such
calculation. To the extent that any adjustment in the Share Rate
5.
occurs pursuant to this paragraph 1.1(a)(ii) as a result of the fixing
by the Corporation of a record date for the issue or distribution of
rights, options or warrants referred to in this paragraph 1.1(a)(ii),
the Share Rate shall be readjusted immediately after the expiry of any
relevant exercise or conversion rihht to the Share Rate which would
then be in effect based upon the number of Common Shares actually
issued and remaining issuable after such expiry and shall be further
readjusted in such manner upon the expiry of any further such right.
(iii) If at any time during the Adjustment Period the Corporation shall fix
a record date for the issue or distribution to the holders of all or
substantially all of the outstanding Common Shares of:
A. shares of the Corporation of any class other than Common Shares;
B. rights, options or warrants to acquire Common Shares or
securities exercisable or convertible into Common Shares (other
than rights, options or warrants pursuant to which holders of
Common Shares are entitled, during a period expiring not more
than forty-five days after the record date for such issue, to
subscribe for or purchase Common Shares or securities exercisable
or convertible into Common Shares at a price per share (or in the
case of securities exercisable or convertible into Common Shares
at an exercise or conversioe price per share) which is at least
95% of the Current Market Price of the Common Shares as of such
record date);
C. evidences of indebtedness of the Corporation; or
D. any property or assets of the Corporation;
and if such issue or distribution does not constitute a Common Share
Reorganization or a Rights Offering (any of such non-excluded events
being herein called a "Special Distribution"), the Share Rate shall be
adjusted effective immediately after the record date for the Special
Distribution to the number determined by multiplying the Share Rate in
effect on the record date for the Special Distribution by a fraction.
I. the numerator of which shall be the product obtained by
multiplying the number of Common Shares outstanding on such
record date by the Current Market Price of the Common Shares
as of such record date; and
II. the denominator of which shall be the difference between
(1) the product of the number of Common Shares outstanding
on such record date and the Current Market Price of the
Common Shares of as such record date, and
(2) the value, as determined by the directors of the
Corporation, to the holders of Common Shares of the
shares, rights, options, warrants, evidences of
indebtedness or property or assets to be issued or
distributed in the Special Distribution.
Any Common Shares owned by or held for the account of the Corporation
shall be deemed not to be outstanding for the purposes of such
calculation. To the extent that any adjustment in the Share Rate
occurs pursuant to this paragraph 1.1(a)(iii) as a result of the
fixing by the Corporation of a record date for the issue or
distribution of rights,. options or warrants to acquire Common Shares
or securities exercisable or convertible into Common Shares referred
to in this paragraph 1.1(b)(iii), the Share Rate shall he readjusted
6.
immediately after the expiry of any relevant exercise or conversion
right to the amount which would then be in effect based upon the
number of Common Shares issued and remaining issuable after such
expiry and shall be further readjusted in such manner upon the expiry
of any further such right.
iv) If at any time during the Adjustment Period there shall occur:
A. a reclassification or redesigailtion of the Common Shares, any
change of the Common Shares into outher shares or securities or
any other capital reorganization involving the Common Shares
other than a Common Share Reorganization;
B. a consolidation, amalgamation or merger of the Corporation with
or into another body corporate which results in a
reclassification or redesignation of the Common Shares or a
change of the Common Shares into other shares or securities;
or
C. the transfer of the undertaking or assets of the Corporation as
an entirety or substantially as an entirety to another
corporation or entity;
(any of such events being called a "Capital Reorganization"), after
the effective date of the Capital Reorganization the Holder shall be
entitled to receive, and shall accept, upon conversion of the Special
Warrants in lieu of the number of Common Shares to which the Holder
was theretofor entitled upon the conversion of the Special Warrants,
the kind and aggregate number of shares and other securities or
property resulting from the Capital Reorganization which the Holder
would have been entitled to receive as a result of the Capital
Reorganization if, on the effective date thereof, the Holder had been
the registered holder of the number of Common Shares which the holder
was theretfore entitled to purchase or receive upon the conversion of
the Special Warrants. If necessary, as a result of any such Capital
Reorganization, appropriate adjustments shall be made in the
application of the provisions of this Special Waraants with respect to
the rights and interests thereafter of the Holder to the end that the
provisions hereof shall thereafter correspondingly be made applicable
as nearly as reasonably possible in relation to any shares or other
securities or property thereafter deliverable upon the conversion of
the Special Warrants.
(b) Deferral of Adjustment: In any case in which this section 1.1 shall require
that an adjustment shall become effective immediately after a record date,
or an effective date of, an event referred to in this section the
Corporation may defer, until the occurrence and consummation of such event,
issuing to the Special. Warrantholder converted after such record date or
effective date and before the occurrence and consummation of such event the
additional Common Shares or other shares or securities or property issuable
upon such conversion by reason of the adjustment required by such event,
provided, however, that, subject to subsection 1.1(c) hereof, the
Corporation shall deliver to the Special Warrantholder an appropriate
instrument evidencing the right of the Special Warrantholder to receive
such additional Common Shares or other shares or securities or property
upon the occurrence and consummation of such event and the right to receive
any dividend or other distribution in respect of such additional Common
Shares or other shares securities or property declared in favour of the
holders of record of Common Shares or of such other shares or ssecurities
or property on or after the date on which the Special Warrants are
converted or for Common Shares or such later date as the Special
Warrantholder would, but for the provisions of this subsection, have become
the holder of record of such additional Common Shares or of such other
shares or securities or property pursuant to subsection 1.1(a) hereof.
(c) Adjustments Cumulative: The adjustments provided for in this section 1.1
are cumulative, shall, in the case of any adjustment to the Share Rate, be
computed to the nearest one one-hundredth of a Common Share and shall apply
(without duplication) to successive subdivisions, consolidations,
distributions, issues or other events in any adjustment under the
7.
provisions of this section 1.1, provided than notwithstanding any other
provision of this section 1.1, no adjustment to the Share Rate will be
required (i) unless such adjustment would require an increase or decrease
of at least one per cent in the Share Rate then in effect (provided,
however, that any adjustment which by reason of this subsection 1.1(c) is
not required to be made will be carried forward and taken into account in
any subsequent adjustment), (ii) if, in respect of any event described in
this section 1.1 the holders of Special Warrants are entitled to
participate in such event on the same terms, with the necessary changes, as
if the Special Warrants had been converted prior to or on the effective
date of or record date for such event, (iii) in respect of Common Shares
issuable or issued pursuant to any share incentive plan in force from time
to time for directors, officers or employees of the Corporation or of
subsidiaries of the Corporation or (iv) in respectt of any Common Shares
issuable or issued upon the conversion of the Special Warrants.
Notwithstanding any other provision of this section 1.1, no adjustment of
the Share Rate shall be made which would result in a decrease in the number
of Common Shares issuable upon the conversion of the Special Warrants,
except in Respect of a consolidation of the outstanding Common Shares or an
event mreferred to in paragraph 1.1(a)(iv) hereof.
(d) Resolution of Questions: If any question arises with respect to the
adjustments provided in this section 1.1, such question shall be
conclusively determined by the auditors of the Corporation or, if they are
unable or unwilling to act, by such firm of chartered accountants as is
appointed by the Corporation and is acceptable to the holder. Such
accountants shall have access to all necessary records of the Corporation
and such determination shall he binding upon the Corporation and the
Holder.
(e) Other Actions: If and whenever at any time during the Adjustment Period,
the Corporation shall take any action affecting or relating to the Common
Shares other than any described in this section 1.1, which in the opinion
of the directors of the the Corporation would prejudicially affect the
rights of the Special Warrantholder, the Share Rate will be adjusted by the
directors or the Corporation in such manner, if any, and at such time, as
the directors of the Corporation may reasonably determine to be equitable
in the circumstances to such holder. Failure of the taking of action by the
directors so as to provide for an adjustment prior to the record date or
effective date of any action by the Corporation affecting the Share Rate
shall he deamed to be conclusive evidence that the directors of the
Corporation have determined that it is equitable to make no adjustment in
the circumstances.
(f) Additional Actions: As a condition precedent to the taking of any action
which would require an adjustment in any of the rights of the Special
Wiarranthoider under the Special Warrants, including the Share Rate, the
Corporation will take any action may, in .the opinion of counsel to the
Corporation, be necesary in order that the Corporation, or any successor to
the Corporation or successor to the undertaking and assets of the
Corporation, will be obligated to and may validly and legally issue all of
the Common Shares or other securities or property which the Holder would be
entitled to receive thereafter on the conversion thereof in accordiince
with the provisions hereof.
(g) Notic: At least 10 days before the earlier of the record date or or
effective date for any event referred in this section 1.1 that requires or
might require an adjustment in any of the rights of the Special
Warrantholder under the Special Warrants, the Share Rate, the Corporation
will give notice to the Holder at the address set out in the Special
Warrant resister maintained by the Corporation of the particulars of such
event, and, to the extent determinable, any adjustment required, in
accordance with the provisions of this Special Warrant Certificate. Such
notice need only set forth such particulars as have been determined at the
date such notice is given. lf any adjustment for which such notice is given
is not then determinable, promptly after such adjustment is determinable
the Corporation will give notice to the Special Warrantholder of such
adjustment.
(h) Definitions: In this section unless there is something in the subject
matter or context inconsistent therewith:
8.
(i) "Current Market Price" of a Common Share at any date means the price
per share equal to the weighted average price at which Common Shares
have traded a recognized stock exchange for any 20 consecutive Trading
Days selected by the directors of the Corporation commencing not more
than 30 Trading Days before such date and ending no less than five
Trading Days prior to such date, or if the Common Shares are not then
listed on any stock exchange, then on the over-the-counter market with
the weighted average price per Common Share being determined by
dividing the aggregate sale price of all Common Shares sold on the
said exchange or market, as the case may be, during the said 2O
consecutive Trading Days by the aggregate number of Common Share it
sold or, if the Common Shares are not then traded on any recognized
market or or exchange, as determined by the directors of the
Corporation, acting reasonably.
(ii) "Share Rate" means the number of Common Shares which are issuable upon
the conversion of each Special Warrant in accordance herewith, subject
to adjustment as provided herein, and which on the date hereof is one
Common Share; and
(iii) "Trading Day" with respect to a stock exchange means a day on which
such stock exchange is open for business and with respect to the
over-the-counter market means a day on which the over-the-counter
market is open for business.
1.2 Entitlement to Shares on Exercise of Special Warrant
All shares of any class, other securities or property which a Special
Warrantholder is at the time in question entitled to receive on the exercise of
its Special Warrant, whether or not as a result of adjustments made pursuant to
this section, shall, for the purposes of the interpretation of this Special
Warrant Certificate, be deem to be shares or securities which such Special
Warrantholder is entitled to acquire pursuant to such Special Warrant.
The Corporation may deem and treat the registered owner of any Special Warrant
Certificate as the absolute owner of the Special Warrant represented tehreby for
all purposes, and the Corporation shall not be affected by any notice or
knowledge to the contrary except where the Corporation is required to take
notice by statute or by order of a court of competent jurisdiction. A Special
Warrantholder shall be entitled to the rights evidenced by its Special Warrant
Certificate free from all equities or rights of set off or counterclaim between
the Corporation and the original or any intermediate Special Warrantholder
thereof and all Persons may act accordingly and the receipt of any such Special
Warrantholder of the Units which may be acquired pursuant thereto shall be a
good discharge to the Corporation for the same and the Corporation shall not be
bound to inquire into title of any such Special Warrantholder except where the
Corporation is required to take notice by statute or by order of a court of
competent jurisdiction.
1.3 Liquidity Incentive
If the Corporation does not fulfil the Conversion Conditions prior to December
31, 2007 (the "Penalty Date"), the Corporation shall thereafter pay each
Warrantholder 1% of the total cost of subscription for these Special Warrants
per month (the "Penalty Rights"), payable in U.S. dollars monthly in arrears
within ten (10) days of the end of each month or part thereof that the
Converstion Conditions are unsatisfied. In any event, the Penalty Rights of each
9.
Special Warrantholder shall terminate on the day after the second anniversary of
the Penalty Date.
1.4 Miscellaneous
The holding of the Special Warrant evidenced by this Special Warrant Certificate
shall not constitute the Special Warrantholder hereof a shareholder of the
Corporation or entitle the Special Warrantholder to any right or interest in
respect thereof except as expressly provided in this Special Warrant
Certificate.
Certificates representing Common Shares or other shares, securities or property
issued upon conversion of the Special Warrants will bear such legends as counsel
to the Corporation considers necessary and appropriate.
The Special Warrants evidenced by this Special Warrant Certificate may not be
transferred except with the written consent of the Corporation.
Compliance with securities legislation applicable to the Special Warrantholders
is the responsibility of the Special Warrantholder or its transferee.
NOTWITHSTANDING THE PLACE WHERE THIS AGREEMENT MAY BE EXECUTED BY ANY OF THE
PARTIES HERETO, THE PARTIES EXPRESSLY AGREE THAT ALL THE TERMS AND PROVISIONS
HEREOF SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. IN THE EVENT
THAT A JUDICIAL PROCEEDING IS NECESSARY, THE EXCLUSIVE FORUMS FOR RESOLVING
DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT ARE EITHER THE SUPREME
COURT OF THE STATE OF NEW YORK OR THE FEDERAL COURTS FOR SUCH STATE AND COUNTY.
THE PARTIES HEREBY IRREVOCABLY CONSENT TO THE JURISDICTION OF SUCH COURTS AND
AGREE TO SAID VENUE.
Neither the Special Warrants represented by this Special Warrant Certificate nor
the Common Shares or Warrants issuable upon exercise of such Special Warrants
have been registered under the United States Securities Act of 1933, as amended,
(the "Act") and, therefore, neither may be offered, sold or otherwise
transferred with the United States or to, or for the account or benefit of
United States Persons. Therms used in this paragraph have the meanings given
them by Regulation S under the Act.
-Remainder of Page Intentionally Left Blank-
10.
IN WITNESS WHEREOF the Corporation has caused this Special Warrant Certificate
to be signed by its duly authorized officer as of the 15th of August, 2007.
EMPIRE MINERALS CORP.
By: /s/ Diego X. Xxxx
-------------------------------------
Name: Diego X. Xxxx
Title: Executive Vice President &
Chief Financial Officer
I have authority to bind the Corporation
11.
APPENDIX "A" TO SPECIAL WARRANT
NOTICE OF EXERCISE FORM
----------------------
TO: EMPIRE MINERALS CORP.
The undersigned registered Special Warrantholder represented by this
Special Warrant Certificate hereby exercises the right of such holder to be
issued, and hereby subscribes for, the Common Shares and Warrants which are
issuable pursuant to the conversion of such Special Warrants on the terms
specified in the Special Warrant Certificate.
The undersigned hereby irrevocably subscribes for the number of Common
Shares and Warrants of Empire Minerals Corp. (the "Corporation") be issued,
registered and delivered as follows:
Name(s) in Full and Social Number of Common
Insurance Number(s) Address(es) Shares
___________________________ _____________________________ __________________
___________________________ _____________________________ __________________
Taxpayer Identification. Number, if applicable: ________________________________
The undersigned represents, warrants and certifies as follows (one (only) of the
following, must be checked):
[ ] A. The undersigned holder (i) at the time of exercise of the Special
Warrant is not in the United States; (ii) is not a "U.S. person"
as defined in Regulation S under the United States Securities Act
of 1933, as amended (the "U.S. Securities Act"), and is not
exercising the Special Warrant on behalf of a "U.S. person"; and
(iii) did not execute or deliver this exercise form in the United
States.
[ ] B. The undersigned holder (i) purchased the Special Warrants
directly from the Corporation pursuant to a written subscription
agreement for the purchase of Special Warrants, (ii) is
exercising the Special Warrant solely for its own account and not
on behalf of any other Person; and (iii) was an "accredited
investor", as that term is defined in Regulation D under the U.S.
Securities Act, both on the date the Special Warrants were
acquired from the Corporation and on the date of exercise of the
Special Warrant.
[ ] C. The undersigned holder has delivered to the Corporation an
opinion of counsel (which will not be sufficient unless it is
from counsel of recognized standing and in form and substance
satisfactory to the Corporation) to the effect than an exemption
from the registration requirements of the U.S. Securities Act and
applicable state securities laws is available.
Certificates will not be registered or delivered to an address in the United
States unless Box "C" above is checked. If Box "C" above is checked, holders
are encouraged to consult with the Corproation in advance to determine that the
legal opinion tendered in connection with the exercise will be satisfactory in
form and substance to the Corporation.
12.
DATED this ____ day of ______________________, 200__.
______________________________________ ______________________________________
Signature Guarantee Signature
(Signature of Special Warrantholder
must correspond with the name that
appears on the face of the Special
Warrant certificate)
______________________________________
(Name in Full-Please print)
(Address)_____________________________
______________________________________
______________________________________
(Telephone Number)
______________________________________
Notes:
1. Instructions for exercising Special Warrants are on the face page of the
Special Warrant Certificate.
2. If the Exercise Form indicates that the Common Shares are to be issued to a
person or persons other than the registered Special Warrantholder of the
Special Warrant Certificate, the signature of such Special Warrantholder on
the Exercise Form must be guaranteed by an authorized officer of a
chartered bank, trust company or an eligible guarantor institution with
membership in an approved signature guarantee medallion program.
3. If the Exercise Form is signed by a trustee, executor, administrator,
curator, guardian, attorney, officer of a corporation or any person acting
in a judiciary or representative capacity, the certificate must be
accompanied by evidence of authority to sign satisfactory to the
Corporation.
13.
SCHEDULE "B"
FORM OF WARRANT CERTIFICATE
---------------------------
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE ACT OR RESOLD EXCEPT AS
PERMITTED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS PURSUANT TO
REGISTRATION OR EXEMPTION THEREFROM. THE ISSUER OF THESE SECURITIES MAY REQUIRE
AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE
EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IN COMPLIANCE WITH THE ACT AND ANY
APPLICABLE STATE SECURITIES LAWS.
WARRANTS TO PURCHASE
COMMON SHARES OF EMPIRE MINERALS CORP.
WARRANT
CERTIFICATE NO. WC-007 1,500,000 WARRANTS
THIS IS TO CERTIFY for value received ITF St. Xxxxx Port Capital Ltd. (the
"Warrantholder" or "Holder") has the right to subscribe for and purchase, from
Empire Minerals Corp., a corporation incorporated under the laws of the State of
Delaware (the "Corporation") 1,500,000 shares ("Warrant Shares) of common stock
of the Corporation ("Common Shares"), at a purchase price (the purchase price in
effect from time to time being called the "Exercise Price") of US$0.65 per
Common Share, subject to adjustment as provided herein, for a period of two
years from the date hereof (the "Closing date") ("Expiry Time"). All capitalized
terms used but not otherwise defined herein shall have the meaning ascribed to
such terms in the subscription agreement between the Corporation and the
Warrantholders dated the date hereof.
The Corporation agrees that the Warrant Shares purchased pursuant to the
exercise of the Warrants shall be deemed to be issued to the Warrantholder as of
the close of business on the date on which this Warrant Certificate shall have
been surrendered and payment made for such Warrant Shares as provided in this
Warrant Certificate.
Nothing contained herein shall confer any right upon the Warrantholder to
subscribe for or purchase any Warrant Shares at any time after the Expiry Time
and from and after the Expiry Time of the Warrant Shares and all rights under
this Warrant Certificate shall be void and of no value.
The above provisions are subject to the following:
1.1 Exercise Warrant
(a) Exercise: Exercise of the purchase rights represented by this Warrant
Certificate may be made, in whole or in part, at any time or times on or
before the Expiry Time by delivery to the Corporation of a duly executed
facsimile copy of the Notice of Exercise Form annexed hereto; and, within
three Business Days of the date said Notice of Exercise is delivered to the
Corporation, the Corporation shall have received payment of the aggregate
Exercise Price of the Warrant Shares thereby purchased by wire transfer or
cashier's check drawn on a United States or Canadian bank. Notwithstanding
anything herein to the contrary, the Warrantholder shall not be required to
physically surrender this Warrant Certificate to the Corporation until the
Warrantholder has purchased all of the Warrant Shares available hereunder
and the Warrant Certificate has been exercised in full, in which case, the
14.
Warrantholder shall surrender this Warrant Certificate to the Corporation
for cancellation within three Business Days of the date the final Notice of
Exercise is delivered to the Corporation.
(b) Partial Exercise: Partial exercises of this Warrant Certificate resulting
in purchases of a portion of the total number of Warrant Shares available
hereunder shall have the effect of lowering the outstanding number of
Warrant Share purchasable hereunder in an amount equal to the applicable
number of Warrant Shares purchased. The Warrantholder and the Corporation
shall maintain records showing the number of Warrant Shares purchased and
the date of such purchases. The Corporation shall deliver any objection to
any Notice of Exercise Form within one Business Day of receipt of such
notice. In the event of any dispute or discrepancy, the records of the
Corporation shall be controlling and determinative in the absence of
manifest error. The Warrantholder and any assignee, by acceptance of this
Warrant Certificate, acknowledge and agree that, by reason of the
provisions of this paragraph, following the purchase of a portion of the
Warrant Shares hereunder, the number of Warrant Shares available for
purchase hereunder at any given time may be less than the amount stated on
the face hereof.
1.2 Not a Shareholder: The holding of the Warrant Shares shall not constitute
the Warrantholder a shareholder of the Corporation nor entitle the
Warrantholder to any right or interest in respect thereof except as
expressly provided in this Warrant Certificate.
1.3 Covenants and Representations: The Corporation hereby represents and
warrants that it is authorized to create and issue the Warrant Shares and
hereby covenants and agrees that it will cause the Warrant Shares from time
to time subscribed for and purchased in the manner provided in this Warrant
Certificate and the certificate representing such Warrant Shares to be
issued and that, at all times prior to the Expiry Time, it will reserve and
there will remain unissued a sufficient number of Warrant Shares to satisfy
the right of purchase provided for in this Warrant Certificate. The
Corporation hereby further covenants and agrees that it will at its expense
expeditiously use its best efforts to obtain the listing of such Warrant
Shares (subject to issue or notice of issue) on each stock exchange or
over-the-counter market on which the Common Shares may be listed from time
to time. All Warrant Shares which are issued upon the exercise of the right
of purchase provided in this Warrant Certificate, upon payment therefore of
the amount at which such Warrant Shares may be pursuant to the provisions
of this Warrant Certificate, shall be deemed to be fully paid and
non-assessable shares and free from all taxes, liens and charges with
respect to the issue thereof. The Corporation hereby represents and
warrants that this Warrant Certificate is a valid and enforceable
obligation of the Corporation, enforceable in accordance with the
provisions of this Warrant Certificate.
1.4 Anti-Dilution Protection:
1.4.1 Definitions: For the purpose of this section 1.4, unless there is
something in the subject matter or context inconsistent therewith, the
words and terms defined below shall have the respective meanings
specified therefor in this subsection:
(a) "Adjustment Period" means the period commencing on the date of
issue of the Warrants and ending at the Expiry Time;
(b) "Current Market Price" of a Common Share at any date means the
price per share equal to the weighted average price at which
Common Shares have traded a recognized stock exchange for any 20
consecutive Trading Days selected by the directors of the
Corporation commencing not more than 30 Trading Days before such
date and ending no less than five Trading Days prior to such
date, or if the Common Shares are not then listed on any stock
exchange, then on the over-the-counter market with the weighted
15.
average price per Common Share being determined by dividing the
aggregate sale price of all Common Shares sold on the said
exchange or market, as the case may be, during the said 2O
consecutive Trading Days by the aggregate number of Common Share
it sold or, if the Common Shares are not then traded on any
recognized market or or exchange, as determined by the directors
of the Corporation, acting reasonably.
(c) "Director" means a director of the Corporation for the time being
and, unless otherwise specified herein, a reference to action "by
the directors" means action by the directors of the Corporation
as a board or, wheever empowered, action by the executive
committee of such board; and
(d) "Trading Day" with respect to a stock exchange or
over-the-counter means a day on which such stock exchange or
market is open for business.
1.4.2 Adjustments: The Exercise Price and the Common Shares issuable to the
Warrantholder shall be subject to adjustment from time to time in the
events and in the manner r]provided as follows:
(a) If at any time during the Adjustment Period the Corporation
shall:
(i) fix a record date for the issue of, or issue, Common Shares
to the holders of all or substantially all of the
outstanding Common Shares by way of a stock dividend;
(ii) fix a record date for the distribution to, the holders of
all or substantially all of the outstanding Common Shares
payable in Common Shares or securities exercisable or
convertible into Common Shares (other than a distribution
which constitutes a Rights Offering (as hereinafter defined)
or a Special Distribution (as hereinafter defined));
(iii) subdivide the outstanding Common Shares into a greater
number of Common Shares; or
(iv) consolidate the outstanding Common Shares into a smaller
number of Common Shares;
(any of such events in subclause (i), (ii), (iii) and (iv) above
being herein called a "Common Share Reorganization"), the
Exercise Price shall be adjusted on the earlier of the record
date on which holders of Common Shares are determined for the
purpose of the Common Share Reorganization and the effective date
of the Common Share Reorganization to the amount determined by
multiplying the Exercise Price in effect immediately prior to
such record date or effective date, as the case may be, by a
fraction:
(A) the numerator of which shall be the number of Common
Shares outstanding on such record date or effective
date, as the case may be, before giving effect to such
Common Share Reorganization; and
(B) the denominator of which shall be the number of Common
Shares which will be outstanding immediately after
giving effect to such Common Share Reorganization
(including in the case of a distribution of securities
exercisable or convertible into Common Shares the
number of Common Shares that would have been
16.
outstanding had such securities been exercised or
exchanged for or converted into Common Shares on such
date).
To the extent that any adjustment in the Exercise Price
occurs pursuant to this clause 1.4.2(a) as a result of the
fixing by the Corporation of a record date for the
distribution of securities exercisable or convertible into
Common Shares, the Exercise Price shall be readjusted
immediately after the expiry of any relevant exercise or
conversion right to the Exercise Price which would then be
in effect based on the number of Common Shares actually
issued and remaining issuable after such expiry and shall be
further readjusted in such manner upon the expiry of any
further such right.
(b) If at any time during the Adjustment Period the Corporation shall
fix a record date for the issue or distribution to the holders of
all or substantially all of the outstanding Common Shares or
rights, options or warrants pursuant to which such holders are
entitled, during a period expiring no more than forty-five days
after the record date for such issue (such period being the
"Rights Period"), to subscribe for or purchase Common Shares or
securities exercisable or convertible into Common Shares at a
price per share to the holder (or in the case of securities
exercisable or convertible into Common Shares, at an exercise or
conversion price per share) of less than 95% of the Current
Market Price of the Common Shares as of such record date (any of
such events being called a "Rights Offering"), the Exercise Price
shall be adjusted effective immediately after the record date for
such Rights Offering to the amount determined by multiplying the
Exercise Price in effect on such record date by a fraction:
(i) the numerator of which shall be the aggregate of
(A) the number of Common Shares outstanding on the record
date for the Rights Offering; and
(B) the quotient determined by dividing
(1) either (a) the produce of the number of Common
Shares offered during the Rights Period pursuant
to the Rights Offering and the price at which such
Common Shares are offered, or, (b) the product of
the exercise or conversion price of the securities
so offered and the number of Common Shares for or
into which the securities offered pursuant to the
Rights Offering may be exercised or converted, as
the case may be, by
(2) the Current Market Price of the Common Shares as
of the record date for the Rights Offering; and
(ii) the denominator of which shall be the aggregate of the
number of Common Shares outstanding on such record date and
the number of Common Shares offered pursuant to the Rights
Offering (including in the case of the issue or distribution
of securities exercisable or convertible into Common Shares
the number of Common Shares for or into which such
securities may be exercised or converted).
17.
If by the terms of the rights, options, or warrants referred to
in this paragraph 1.4.2(b)(ii), there is more than one exercise
or conversion price per Common Share, the aggregate price of the
total number of additional Warrant Shares offered for
subscription or purchase, or the aggregate exercise or conversion
price of the exercisable or convertible securities so offered,
shall be calculated for purposes of the adjustment on the basis
of the lowest exercise or conversion price per Common Share, as
the case may be. Any Common Share owned by or held for the
account of the Corporation shall be deemed not to be outstanding
for the purpose of any such calculation. To the extent that any
adjustment in the Exercise Price Occurs pursuant to this
paragraph 1.4.2(b)(ii) as a result of the fixing by the
Corporation of a record date for the issue or distribution of
rights or warrants referred to in this paragraph 1.4.2(b)(ii),
the Exercise Price shall be readjusted immediately after the
expiry of any relevant exercise or conversion right to the
Exercise Price which would then be in effect based upon the
number of Common Shares actually issued and remaining issuable
after such expiry and shall be further readjusted in such manner
upon the expiry of any further such right.
(c) If at any time during the Adjustment Period the Corporation shall
fix a record date for the issuance or distribution to the holders
of all or substantially all of the outstanding Common Shares of:
(i) shares of the Corporation of any class other than Common
Shares;
(ii) rights, options or warrants to acquire Common Shares or
securities exercisable or convertible into Common Shares
(other than rights, options or warrants pursuant to which
holder of Common Shares are entitled, during a period
expiring not more than forty-five days after the record date
for such issue, to subscribe for or purchase Common Shares
or securities exercisable or convertible into Common Shares
at a price per share (or in the case of securities
convertible into Common Shares at a conversion price per
share) at the date of issue of such securities to the holder
of at least 95% of the Current Market Price of the Common
Shares on such record date);
(iii) evidences of indebtedness of the Corporation; or
(iv) any property or assets of the Corporation;
and if such issue or distribution does not constitute a Common
Share Reorganization or a Rights Offering (any of such
non-excluded events being herein called a "Special
Distribution"), the Exercise Price shall be adjusted effective
immediately after the record date for the Special Distribution to
the amount determined by multiplying the Exercise Price in effect
on the record date for the Special Distribution by a fraction:
(A) the numerator of which shall be the difference between
(1) the product of the number of Common Shares
outstanding on such record date and the Current
Market Price of the Common Shares on such record
date, and
(2) the fair value as determined by the directors of
the Corporation, to the holders of Common Shares
of the shares, rights, options, warrants,
18.
evidences of indebtedness or property or assets to
be issued or distributed in the Special
Distribution, and
(B) the denominator of which shall be the product obtained
by multiplying the number of Common Shares outstanding
on such record date by the Current Market Price of the
Common Shares of such record date.
Any Common Shares owned by or held for the account of the
Corporation shall be deemed not to be outstanding for the purpose
of such calculation. To the extent that any adjustment in the
Exercise Price occurs pursuant to this clause 1.4.2(iv)(B) as a
result of the fixing by the Corporation of a record date for the
issue or distribution of rights, options or warrants to acquire
Warrant Shares or securities exercisable or convertible into
Common Shares referred to in this clause 1.4.2(iv)(B), the
Exercise Price shall be readjusted immediately after the expiry
of any relevant exercise or conversion right to the amount which
would then be in effect based upon the number of Common Shares
issued and remaining issuable after such expiry and shall be
further readjusted in such manner upon the expiry of any further
such right.
(d) If at any time during the Adjustment Period there shall occur:
(i) a reclassification or redesignation of the Common Shares,
any change of the Common Shares into other shares or
securities or any other capital reorganization involving the
Common Shares other than a Common Share Reorganization;
(ii) a consolidation, amalgamation or merger of the Corporation
with or into another body corporate which results in a
reclassification or redesignation of the Common Shares or a
change of the Common Shares into other shares or securities;
(iii) the transfer of the undertaking or assets of the
Corporation as an entirety or substantially as an entirety
to another corporation or entity;
(any of such events being called a "Capital Reorganization"),
after the effective date of the Capital Reorganization the
Warrantholder shall be entitled to receive, and shall accept, for
the same aggregate consideration, upon exercise of the Warrant
Shares, in lieu of the number of Common Shares to which the
Warrantholder was theretofor entitled upon the exercise of the
Common Shares, the kind and aggregate number of shares and other
securities or property resulting from the Capital Reorganization
which the Warrantholder would have been entitled to receive as a
result of the Capital Reorganization if, on the effective date
thereof, the Warrantholder had been the registered holder of the
number of Common Shares which the Warrantholders was theretofore
entitled to purchase or receive upon the exercise of the Warrant
Shares. If necessary, as a result of any such Capital
Reorganization, appropriate adjustment shall be made in the
application of the provisions of this Warrant Certificate with
respect to the rights and interests thereafter of the
Warrantholder to the end that the provisions shall thereafter
correspondingly be made applicable as nearly as may reasonably be
possible in relation to any shares or other securities or
property thereafter deliverable upon the exercise of the Warrant
Shares.
19.
(e) If at any time during the Adjustment Period any adjustment or
readjustment in the Exercise Price shall occur pursuant to the
provisions of paragraphs 1.4.2(b)(i), (ii) or (iii) of this
Warrant Certificate, then the number of Common Shares purchasable
upon the subsequent exercise of the Warrant Shares shall be
simultaneously adjusted or readjusted, as the case may be, by
multiplying the number of Common Shares purchasable upon the
exercise of the Warrant Shares immediately prior to such
adjustment or readjustment by a fraction which shall be the
reciprocal of the fraction used in the adjustment or readjustment
of the Exercise Price.
1.4.3 Rules: The following rules and procedures shall be applicable to
adjustment made pursuant 1.4.2 of this Warrant Certificate:
(a) Subject to the following paragraphs of this paragraph 1.4.3, any
adjustments made pursuant to paragraph 1.4.2 of this Warrant
Certificate shall be made successively whenever an event referred
to therein shall occur.
(b) No adjustment in the Exercise Price shall be required unless such
adjustment would result in a change of at least one per cent in
the then Exercise Price and no adjustment shall be made in the
number of Common Shares purchasable or issuable on the exercise
of the Warrant Shares unless it would result in a change of at
least one one-hundredth of a Common Share; provided, however,
that any adjustments which except of the provision of this
paragraph 1.4.3(b) would otherwise have been required to be made
shall be carried forward and taken into account in any subsequent
adjustment. Notwithstanding any other provision of paragraph
1.4.3 of this Warrant Certificate, no adjustment of the Exercise
Price shall be made which would result in an increase in the
Exercise Price or a decrease in the number of Common Shares
issuable upon the exercise of the Warrant Shares (except in
respect of a consolidation of the outstanding Common Shares or an
event referred to in paragraph 1.4.2(iv) hereof).
(c) If at any time during the adjustment Period the Corporation shall
take any action affecting the Common Shares, other than an action
or event described in paragraph 1.4.2 of this Warrant
Certificate, which in the opinion of the directors would have a
material adverse effect upon the rights of the Warrantholder, the
Exercise Price and/or the number of Common Shares purchasable
under the Warrant Shares shall be adjusted in such manner and at
such time as the directors may determine to be equitable in the
circumstances. Failure of the taking of action by the directors
so as to provide for an adjustment prior to the effective date of
any action by the Corporation affecting the Common Shares shall
be deemed to be conclusive evidence that the directors have
determined that it is equitable to make no adjustment in the
circumstances.
(d) If the Corporation sets a record date to determine holders of
Common Shares for the purpose of entitling such holders to
receive any dividend or distribution or any subscription or
purchase rights and shall thereafter and before the distribution
to such holders of any dividend, distribution or subscription or
purchase rights legally abandon its plan to pay or deliver such
dividend, distribution or subscription or purchase rights, then
no adjustment in the Exercise Price or the number of Common
Shares purchasable under the Warrant Shares shall be required by
reason of the setting of such record date.
(e) No adjustment in the Exercise Price or in the number or kind of
securities purchasable on the exercise of the Warrant Shares
20.
shall be made in respect of any event described in paragraph 1.4
of this Warrant Certificate if the Warrantholder is entitled to
participate in such event on the same terms mutatis mutandis as
if the Warrantholder had exercised the Warrant Shares prior to or
on the record date or effective date, as the case may be, of such
event.
(f) In any case in which this Warrant Certificate shall require that
an adjustment shall become effective immediately after a record
date for an event referred to in paragraph 1.4.2 hereof, the
Corporation may defer, until the occurrene of such event:
(i) issuing to the Warrantholder, to the extent that the Warrant
Shares are exercised after such record date and before the
occurrence of such event, the additional Common Shares
issuable upon such exercise by reason of the adjustment
required by such event; and
(ii) delivering to the Warrantholder any distribution declared
with respect to such additional Common Shares after such
record date and before such event;
provided, however, that the Corporation shall deliver to the
Warrantholder an appropriate instrument evidencing the right of
the Warrantholder upon the occurrence of the event requiring the
adjustment, to an adjustment in the Exercise Price or the number
of Common Shares purchasable upon the exercise of the Warrant
Shares and to such distribution declared with respect to any such
additional Common Shares issuable on the exercise of the Warrant
Shares.
(g) If a dispute shall at any time arise with respect to any
adjustment of the Exercise Price or the number of Common Shares
purchasable pursuant to the Warrant Shares, such dispute shall be
conclusively determined by the auditors of the Corporation or if
they are unable or unwillingly to act by such other firm of
independent chartered accountants as may be selected by the
directors.
1.4.4 Taking of Actions: As a condition precedent to the taking of any
action which would require an adjustment pursuant to paragraph 1.4.2
of this certificate the Corporation shall take any action which may,
in the opinion of counsel, be necessary in order that the Corporation
may validly and legally issue as fully paid and non-assessable shares
of the Common Shares which the Warrantholder is entitled to receive in
accordance with the provisions of this certificate.
1.4.5 Notice: At least 21 days prior to the earlier of the record date or
effective date of any event which requires or might require an
adjustment in any of the rights of the Warrantholder under this
certificate, including the Exercise Price or the number of Common
Shares which may be purchased under this certificate, the Corporation
shall deliver to the Warrantholder a certificate of the Corporation
specifying the particulars of such event and, if determinable, the
required adjustment and the calculation of such adjustment. In case
any adjustment for which a notice in this paragraph has been given is
not then determinable, the Corporation shall promptly after such
adjustment is determinable deliver to the Warrantholder a certificate
providing the calculation of such adjustment. The Corporation hereby
covenants and agrees that the register and transfers and share
transfer books for the Common Shares will be open, and that the
Corporation will not take any action which might deprive the
Warrantholder of the opportunity of exercising the rights of
subscription contained in this Warrant Certificate, during such 21 day
period.
21.
1.5 Further Assurances: The Corporation hereby covenants and agrees that it
will do, execute, acknowledge and deliver, or cause to be done, executed,
acknowledged and delivered, all and every such other act, and assurance as
the Warrantholder shall reasonably require for the better accomplishing and
effectuating of the intentions and provisions of this Warrant Certificate.
1.6 Time of Essence: Time shall be of the essence of this Warrant Certificate.
1.7 Governing Law:
NOTWITHSTANDING THE PLACE WHERE THIS AGREEMENT MAY BE EXECUTED BY ANY OF
THE PARTIES HERETO, THE PARTIES EXPRESSLY AGREE THAT ALL THE TERMS AND
PROVISIONS HEREOF SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAW. IN THE EVENT THAT A JUDICIAL PROCEEDING IS NECESSARY, THE EXCLUSIVE
FORUMS FOR RESOLVING DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT
ARE EITHER THE SUPREME COURT OF THE STATE OF NEW YORK OR THE FEDERAL COURTS
FOR SUCH STATE AND COUNTY. THE PARTIES HEREBY IRREVOCABLY CONSENT TO THE
JURISDICTION OF SUCH COURTS AND AGREE TO SAID VENUE.
1.8 Notices: All notices or other communications to be given under this Warrant
Certificate shall be delivered by hand or by telecopier, and if delivered
by hand, shall be deemed to have been given on the delivery date and, if
sent by telecopier, on the date of transmission if sent before 5:00 p.m. on
a Business Day or, if such day is not a Business Day, on the first Business
Day following the date of transmission.
1.8.1 Notices to the Corporation shall be addressed to:
Empire Minerals Corp.
00xx Xxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxx
Telecopier: (000) 000-0000
1.8.2 Notices to the Warrantholder shall be addressed to the Warrantholder
set out on the face page of this Warrant Certificate.
The Corporation and the Warrantholder may change its address for service by
notice in writing to the other of them specifying its new address for service
under this Warrant Certificate.
1.9 Legends on Common Shares: Certificates representing Common Shares or other
shares, securities or property issued upon the conversion of the Warrant
Shares represented by this Warrant Certificate will bear such legends as
counsel to the Corporation considers necessary or appropriate.
1.10 Lost Certificate: If this Warrant Certificate or any replacement hereof
becomes stolen, lost, mutilated or destroyed, the Corporation shall, on
such terms as it may in its discretion impose, acting reasonably, issue and
deliver a new certificate, in form identical hereto but with appropriate
changes, representing any unexercised portion of the subscription rights
represented hereby to replace the certificate so stolen, lost, mutilated or
destroyed.
22.
1.11 Transfer: The Warrant Shares may not be transferred except with the written
consent of the Corporation.
1.12 Restrictions on Exercise: Notwithstanding anything contained herein to the
contrary, the rights represented by this Warrant Certificate shall not be
exercisable by the Warrantholder, in whole or in part, and the Corporation
shall not give effect to any such exercise, if, after giving effect to such
exercise, the Warrant, together with any person or company acting jointly
or in concert with the Warrantholder (the "Joint Actors") would in the
aggregate beneficially own, or exercise control or direction over that
number of voting securities of the Corporation which is twenty percent
(20%) or greater of the total issued and outstanding voting securities of
the Corporation, immediately after giving effect to such exercise. For
greater certainty, the rights represented by this Warrant Certificate shall
not be exercisable by the Warrantholder, in whole or in part, and the
Corporation shall not give effect to any such exercise, if, after giving
effect to such exercise, the Warrantholder, together with its Joint Actors,
would be deemed to hold a number of voting securities sufficient to
materially affect the control of the Corporation. Prior to exercising the
rights represented by this Warrant Certificate, the Warrantholder shall
provide the Corporation with an officer's certificate stating that the
number of voting securities of the Corporation held by the Warrantholder
and its Joint Actors as of the date provided for in the exercise notice
(the "Warrantholder Certificate") and the Corporation shall be entitled to
rely on the Warrantholder Certificate in making any determinations
regarding the total issued and outstanding voting securities of the
Corporation to be held by the Warrantholder and its Joint Actors after
giving effect to the exercise.
1.13 U.S. Restrictions: The Warrants and the Common Shares issuable upon the
exercise of the Warrant Shares have not been registered under the United
States Securities Act of 1933 (the "U.S. Securities Act") or any state
securities laws. The Warrants may not be exercised in the United States (as
defined in Regulation S under the U.S. Securities Act) unless these Warrant
Shares and the Common Shares issuable upon exercise hereof have been
registered under the U.S. Securities Act and any applicable state
securities laws or unless an exemption from such registration is available.
IN WITNESS WHEREOF the Corporation has caused this Warrant Certificate to be
signed by its duly authorized officer as of the ___ day of August 1007.
EMPIRE MINERALS CORP.
By:
-------------------------------------
Name:
Title:
I have authority to bind the Corporation
23.
APPENDIX "A" TO WARRANT CERTIFICATE
NOTICE OF EXERCISE FORM
----------------------
TO: EMPIRE MINERALS CORP.
The undersigned registered Warrantholder represented by this Warrant
Certificate hereby exercises the right of such holder to be issued, and hereby
subscribes for, the Warrant Shares which are issuable pursuant to the conversion
of such Warrants Shares on the terms specified in the Warrant Certificate.
The undersigned hereby irrevocably subscribes for the number of Warrant
Shares of Empire Minerals Corp. (the "Corporation") be issued, registered and
delivered as follows:
Name(s) in Full and Social Number of Warrant
Insurance Number(s) Address(es) Shares
___________________________ _____________________________ __________________
___________________________ _____________________________ __________________
Taxpayer Identification. Number, if applicable: ________________________________
The undersigned represents, warrants and certifies as follows (one (only) of the
following, must be checked):
[ ] A. The undersigned holder (i) at the time of exercise of the Warrant
Shares is not in the United States; (ii) is not a "U.S. person"
as defined in Regulation S under the United States Securities Act
of 1933, as amended (the "U.S. Securities Act"), and is not
exercising the Warrant Shares on behalf of a "U.S. person"; and
(iii) did not execute or deliver this exercise form in the United
States.
[ ] B. The undersigned holder (i) purchased the Warrant Shares
directly from the Corporation pursuant to a written subscription
agreement for the purchase of Warrant Shares, (ii) is
exercising the Warrant Shares solely for its own account and not
on behalf of any other Person; and (iii) was an "accredited
investor", as that term is defined in Regulation D under the U.S.
Securities Act, both on the date the Warrant Shares were
acquired from the Corporation and on the date of exercise of the
Warrant Shares.
[ ] C. The undersigned holder has delivered to the Corporation an
opinion of counsel (which will not be sufficient unless it is
from counsel of recognized standing and in form and substance
satisfactory to the Corporation) to the effect than an exemption
from the registration requirements of the U.S. Securities Act and
applicable state securities laws is available.
Certificates will not be registered or delivered to an address in the United
States unless Box "C" above is checked. If Box "C" above is checked, holders
are encouraged to consult with the Corproation in advance to determine that the
legal opinion tendered in connection with the exercise will be satisfactory in
form and substance to the Corporation.
24.
DATED this ____ day of ______________________, 200__.
______________________________________ ______________________________________
Signature Guarantee Signature
(Signature of Warrantholder must
correspond with the name that appears
on the face of the Warrant
Certificate)
______________________________________
(Name in Full-Please print)
(Address)_____________________________
______________________________________
______________________________________
(Telephone Number)
______________________________________
Notes:
1. Instructions for exercising Warrant Shares are on the face page of the
Warrant Certificate.
2. If the Exercise Form indicates that the Warrant Shares are to be issued to
a person or persons other than the registered Warrantholder of the Warrant
Certificate, the signature of such Warrantholder on the Exercise Form must
be guaranteed by an authorized officer of a chartered bank, trust company
or an eligible guarantor institution with membership in an approved
signature guarantee medallion program.
3. If the Exercise Form is signed by a trustee, executor, administrator,
curator, guardian, attorney, officer of a corporation or any person acting
in a judiciary or representative capacity, the certificate must be
accompanied by evidence of authority to sign satisfactory to the
Corporation.
