EXHIBIT 4.7
AGENCY AGREEMENT BETWEEN THE COMPANY AND
CANACCORD CAPITAL CORPORATION DATED JULY 31, 2003
AGENCY OFFERING AGREEMENT
THIS AGREEMENT dated for reference July 31, 2003 is made
BETWEEN
AMERA RESOURCES CORPORATION, 000-000 Xxxx Xxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
(the "Issuer");
AND
CANACCORD CAPITAL CORPORATION, 0000-000 Xxxxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
(the "Agent").
WHEREAS:
A. The Issuer wishes to raise money for the purposes set forth in its
Prospectus, which is to be filed by the Issuer with the Commissions and the
Exchange, by offering for sale certain of its securities;
B. The Issuer wishes to appoint the Agent to distribute those securities
and the Agent is willing to accept the appointment on the terms and conditions
of this Agreement;
THE PARTIES to this Agreement therefore agree:
1. DEFINITIONS
In this Agreement:
(a) "Agent's Warrants" means the common share purchase warrants of
the Issuer issued to the Agent as part of the Agent's
compensation;
(b) "Agent's Warrant Shares" means any common shares in the capital
of the Issuer that may be issued on exercise of the Agent's
Warrants;
(c) "Applicable Legislation" means the Securities Act or comparable
legislation in each of the Selling Jurisdictions, the regulations
and rules made under that legislation, and all administrative
policy statements, blanket orders, notices, directions,
instruments and rulings issued by the Commissions;
(d) "Closing" means the completion of the purchase and sale of all of
the Units comprised in the Offering;
(e) "Closing Day" means the day on which the Closing takes place as
determined by the Agent acting, reasonably;
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(f) "Commissions" means the securities commissions in each of the
Selling Jurisdictions;
(g) "Corporate Finance Shares" means the common shares in the capital
of the Issuer to be issued to the Agent by the Issuer in
consideration of corporate finance and structuring services
provided by the Agent;
(h) "Distribution" means the distribution or sale of the Securities
pursuant to this Agreement;
(i) "Effective Date" means the date on which the final receipt for
the Prospectus is issued by the Commissions;
(j) "Exchange" means the TSX Venture Exchange;
(k) "Material Change" has the meaning defined in the Applicable
Legislation;
(l) "Material Fact" has the meaning defined in the Applicable
Legislation;
(m) "Misrepresentation" has the meaning defined in the Applicable
Legislation;
(n) "Offering" means the offering of the Units under the Prospectus;
(o) "Offering Day" means the day chosen by the Agent to contract the
purchases of Units by its clients;
(p) "Offering Price" means $0.45 per Unit;
(q) "Prospectus" means the preliminary prospectus and the final
prospectus filed or intended to be filed by the Issuer with the
Regulatory Authorities in connection with the Offering and any
amendments to the preliminary prospectus and final prospectus
which may be filed with the Regulatory Authorities;
(r) "Regulatory Authorities" means the Commissions and the Exchange;
(s) "Selling Jurisdictions" means the provinces of British Columbia
and Alberta;
(t) "Securities" means the Units, the Shares and Warrants of the
Issuer forming part of the Units, the Agent's Warrants and any
common shares in the capital of the Issuer issued on the exercise
of the Warrants and Agent's Warrants and issued pursuant to the
Greenshoe Option and any other common shares of the Issuer which
may be qualified for distribution under the Prospectus;
(u) "Share" means a previously unissued common share in the capital
of the Issuer, as presently constituted, which will be issued as
part of a Unit;
(v) "Units" means the 1,500,000 units comprised of one Share and one
Warrant to be distributed under the Prospectus;
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(w) "Warrants" means the non-transferable share purchase warrants of
the Issuer which will be issued as part of the Units and which
have the terms provided in this Agreement and the certificates
representing such share purchase warrants; and
(x) "Warrant Shares" means the previously unissued common shares in
the capital of the Issuer, as presently constituted, which will
be issued upon the exercise of the Warrants.
2. APPOINTMENT OF AGENT
2.1 The Issuer appoints the Agent as its exclusive agent and the Agent
accepts the appointment and will act as the exclusive agent of the Issuer to
offer the Units for sale to persons who represent themselves as being resident
in one of the Selling Jurisdictions or such other jurisdictions where the Units
may lawfully be offered for sale under the Prospectus at the Offering Price.
3. CONDUCT OF THE OFFERING
3.1 Prior to the Effective Date, the Issuer will apply to the Exchange for
a conditional listing of its common shares.
3.2 The Offering Day will be on or before the earlier of the day which is:
(a) 90 days after the Effective Date; and
(b) 12 months after the date of the issue by the Commissions of the
preliminary receipt for the Prospectus.
3.3 The Offering will be made in accordance with the rules and policies of
the Exchange and in compliance with the Applicable Legislation.
3.4 After the Offering has been completed, the Issuer and the Agent will
file any documents required by the Exchange in order to list and commence
trading of the common shares of the Issuer on the Exchange.
3.5 The Agent will advise the Issuer and its counsel in writing when the
Distribution under the Prospectus is complete.
3.6 The Agent may solicit and accept subscriptions for additional units up
to a maximum of 15% of the Offering (the "Greenshoe Option").
3.7 The number of additional units subject to the Greenshoe Option will be
the lesser of 15% of the Offering or the actual number of additional units for
which subscriptions have been received.
3.8 The Agent will advise the Issuer of the number of additional units
subject to the Greenshoe Option within five business days after the Offering
Day.
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3.9 On receipt of notice in writing from the Agent given within 60 calendar
days from the Closing Day, the Issuer will issue and deliver to the Agent
forthwith, at the Offering Price, the number of units subject to the Greenshoe
Option.
3.10 Nothing in this Agreement will prevent the Agent from purchasing
additional shares on the Exchange in order to fill subscriptions for additional
units.
4. OPINIONS AND CERTIFICATES
4.1 On the Effective Date, the Issuer will deliver the following documents
to the Agent and its counsel in a form acceptable to them:
(a) a comfort letter from the auditor of the Issuer, dated as of the
date of the Prospectus and addressed to the Agent and its
counsel, relating to the accuracy of the financial statements
forming part of the Prospectus and the accuracy of the financial,
numerical and certain other information disclosed in the
Prospectus;
(b) an opinion of counsel for the Issuer, dated as of the Effective
Date and addressed to the Agent and its counsel, relating to any
legal matter in connection with the creation, issuance and sale
of the Securities for which the Agent may reasonably request an
opinion (the "Legal Opinion");
(c) a certificate of the Issuer, dated as of the Effective Date and
signed by the president of the Issuer or by another officer
approved by the Agent, certifying certain facts relating to the
Issuer and its affairs (the "Officer's Certificate"); and
(d) any other certificates, comfort letters or opinions in connection
with any matter related to the Prospectus which are reasonably
requested by the Agent or its counsel.
4.2 On the Closing Day, the Issuer will provide the Agent and its counsel
with evidence of the necessary approval of the Regulatory Authorities for the
Offering, the Legal Opinion and the Officer's Certificate updated to the Closing
Day.
5. AGENT'S COMPENSATION
In consideration of the services performed by the Agent under this Agreement,
the Issuer agrees to:
(a) pay the Agent a commission of 8% of the Offering Price per Unit
sold including previously unissued units sold pursuant to the
Greenshoe Option whether purchased by the Agent for its own
account or for its clients or purchased by other members of the
Exchange for their own accounts or for their clients, payable in
lawful Canadian currency (the "Agent's Commission"); and
(b) issue Agent's Warrants to the Agent or to members of its selling
group as directed by the Agent entitling the Agent to purchase
Agent's Warrant Shares in an amount equal to 15% of the Units
sold.
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5.2 In consideration of the Agent's services in connection with the
coordination and review of the Offering and the Prospectus, the Issuer will pay
the Agent, on the Closing Day or cancellation of the Offering, a fee (the
"Administration Fee") of $7,500.
5.3 In connection with the Offering, the Issuer agrees to issue 100,000
Corporate Finance Shares to the Agent on Closing.
5.4 The Agent's Warrants will be represented by certificates and will be
non-transferable except as permitted by the Applicable Legislation and any order
granted by the Commissions.
5.5 One Agent's Warrant will entitle the holder to purchase one Agent's
Warrant Share at a price of $0.45 per Agent's Warrant Share.
5.6 The right to purchase Agent's Warrant Shares under the Agent's Warrants
may be exercised at any time up to the close of business nine months from
Closing Day.
5.7 The terms governing the Agent's Warrants will include, among other
things, provisions for the appropriate adjustment in the class, number and price
of the Agent's Warrant Shares upon the occurrence of certain events, including
any subdivision, consolidation or reclassification of the shares, the payment of
stock dividends or the amalgamation of the Issuer.
5.8 The issue of the Agent's Warrants will not restrict or prevent the
Issuer from obtaining any other financing, or from issuing additional securities
or rights during the period within which the Agent's Warrants are exercisable.
6. WARRANTS
6.1 The Warrants will be non-transferable and in registered form.
6.2 One Warrant will be issued and delivered for each Unit of the Issuer
offered and purchased under the Prospectus.
6.3 The Warrants may be exercised at any time up to the close of business
nine months from the Closing Day.
6.4 Two Warrants will entitle the holder to purchase one additional
previously unissued common share of the Issuer at $0.50 per Warrant Share.
6.5 The terms governing the Warrants will include, among other things,
provisions for the appropriate adjustment in the class, number and price of the
common shares of the Issuer issuable under the Warrants upon the occurrence of
certain events, including any subdivision, consolidation or reclassification of
the common shares of the Issuer, the payment of stock dividends or the
amalgamation of the Issuer.
6.6 The issue of the Warrants will not restrict or prevent the Issuer from
obtaining any other financing, nor from issuing additional securities or rights
during the period within which the Warrants are exercisable.
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7. MINIMUM SUBSCRIPTION
7.1 The Offering is subject to a minimum subscription of 1,500,000 units.
7.2 All funds received by the Agent for subscription will be held in trust
by the Agent or placed in trust with the Issuer's registrar and transfer agent
until the minimum subscription has been obtained.
7.3 Notwithstanding any other term of this Agreement, all subscription
funds received by the Agent will be returned to the subscribers if the minimum
subscription is not obtained by the close of the market on the Offering Day.
7.4 Notwithstanding any other term of this Agreement, the Agent's
Commission will not be paid to the Agent if the minimum subscription is not
obtained by the close of the market on the Offering Day.
8. CLOSING
8.1 In this Section:
(a) "Certificates" means the certificates representing the Shares and
Warrants forming part of the Units in the names and denominations
reasonably requested by the Agent and the certificates
representing the Agent's Warrants;
(b) "Proceeds" means the gross proceeds of the Offering, less:
(i) that portion of the Agent's Commission payable in cash;
(ii) the Administration Fee;
(iii) the expenses of the Agent in connection with the Offering
which have not been repaid by the Issuer; and
(iv) any amount already received by the Issuer from the sale of
Units under the Offering.
8.2 The Issuer will on the Closing Day, issue and deliver the Certificates
to the Agent against payment of the Proceeds.
8.3 If the Issuer has satisfied all of its material obligations under this
Agreement, the Agent will on the Closing Day, pay the Proceeds to the Issuer
against delivery of the Certificates.
8.4 The obligations of the Agent on the Closing Day, including the
obligation to pay the Proceeds, shall be subject to the following conditions
precedent, any of which may be waived by the Agent:
(a) the Issuer shall have performed or complied with each covenant
and obligation herein provided on its part to be performed or
complied with;
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(b) each of the representations and warranties of the Issuer herein
shall be true, and the Officer's Certificate shall contain
certification to that effect;
(c) the Issuer shall have made, within the time limit provided, each
of the deliveries of opinion and certificates as provided in this
Agreement; and
(d) the Issuer shall have, to the satisfaction of the Agent's
counsel, taken or caused to be taken all steps and proceedings
which may be requisite under the Applicable Legislation to
qualify the Distribution of the Shares and Warrants comprised in
the Units to the public in the Selling Jurisdictions through
registrants who have complied with the provisions of the
Applicable Legislation, including the filing and the obtaining of
receipts for the Prospectus.
9. MATERIAL CHANGES
9.1 If, after the Prospectus is filed with the Regulatory Authorities but
before the conclusion of the Distribution, a Material Change or change in a
Material Fact occurs in the affairs of the Issuer, the Issuer will:
(a) promptly notify the Agent immediately, in writing, with full
particulars of the change; and
(b) file with the Regulatory Authorities as soon as practicable, and
in any event no later than 10 days after the change occurs, an
amendment to the Prospectus in a form acceptable to the Agent
disclosing the material change; and
(c) provide as many copies of that amendment to the Agent as the
Agent may reasonably request.
9.2 The Issuer shall in good faith discuss with the Agent any fact or
change in circumstances (actual and anticipated, contemplated or threatened,
whether financial or otherwise) which is of such a nature that there is
reasonable doubt as to whether notice in writing need be given to the Agent
pursuant to the previous Subsection.
10. TERMINATION
10.1 The Agent may terminate its obligations under this Agreement by notice
in writing to the Issuer at any time before the day the common shares of the
Issuer are listed and commence trading on the Exchange if:
(a) there is an event, accident, governmental law or regulation or
other occurrence of any nature which, in the opinion of the
Agent, seriously affects or will seriously affect the financial
markets or the business of the Issuer or any subsidiary of the
Issuer or the ability of the Agent to perform its obligations
under this Agreement or an investor's decision to purchase Units;
(b) an adverse Material Change or change in a Material Fact relating
to any of the Securities occurs or is announced by the Issuer;
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(c) following a consideration of the history, business, products,
property or affairs of the Issuer or its principals and
promoters, or the state of the financial markets in general, or
the state of the market for the Issuer's securities in
particular, the Agent determines, in its discretion, that it is
not in the interest of investors to complete the Offering;
(d) the Securities cannot, in the opinion of the Agent, be marketed
due to the state of the financial markets, or the market for the
Units in particular; or
(e) an enquiry or investigation (whether formal or informal) in
relation to the Issuer, or the Issuer's directors, officers or
promoters, is commenced or threatened by an officer or official
of any competent authority.
10.2 The Agent may terminate its obligations under this Agreement at any
time if:
(a) any order to cease trading (including communicating with persons
in order to obtain expressions of interest) in the securities of
the Issuer is made by a competent regulatory authority and that
order is still in effect;
(b) the Issuer is in breach of any term of this Agreement;
(c) the Agent determines that any of the representations or
warranties made by the Issuer in this Agreement is false or has
become false.
10.3 If the Agent exercises its right to terminate this Agreement, then the
Issuer will immediately issue a press release setting out particulars of the
termination.
10.4 The Agent may terminate this Agreement, at its sole discretion, if a
final receipt for the Prospectus is not issued by the Commissions within 120
days of the reference date of this Agreement.
11. WARRANTIES AND REPRESENTATIONS
11.1 The Issuer warrants and represents to the Agent that:
(a) the Issuer and its subsidiaries, if any, are valid and subsisting
corporations duly incorporated and in good standing under the
laws of the jurisdictions in which they are incorporated,
continued or amalgamated;
(b) the Issuer and its subsidiaries, if any, are duly registered and
licenced to carry on business or own property in the
jurisdictions in which they carry on business or own property
where so required by the laws of that jurisdiction;
(c) the authorized and issued capital of the Issuer is as disclosed
in the Prospectus and the issued and outstanding common shares of
the Issuer are fully paid and non-assessable;
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(d) the Issuer will reserve or set aside sufficient common shares in
its treasury to issue the Shares forming part of the Units, and
all Warrant Shares which may be issued on the exercise of the
Warrants and the Agent's Warrants or issued pursuant to the
Greenshoe Option;
(e) except as qualified by the Prospectus, the Issuer is the
beneficial owner of the properties, business and assets or the
interests in the properties, business or assets referred to in
the Prospectus; all agreements by which the Issuer holds an
interest in a property, business or asset are in good standing
according to their terms, and the properties are in good standing
under the applicable laws of the jurisdictions in which they are
situated;
(f) the Prospectus will contain full, true and plain disclosure of
all Material Facts in relation to the Issuer, its subsidiaries
(if any), its business and its securities, will contain no
Misrepresentations, will be accurate in all material respects and
will omit no fact, the omission of which will make such
representations misleading or incorrect;
(g) the financial statements of the Issuer which form part of the
Prospectus have been prepared in accordance with Canadian
generally accepted accounting principles, accurately reflect the
financial position and all material liabilities (accrued,
absolute, contingent or otherwise) of the Issuer and its
subsidiaries, if any, as at the date of the financial statements
and there have been no adverse material changes in the financial
position of the Issuer since that date, except as fully and
plainly disclosed in the Prospectus;
(h) the Issuer has complied and will comply fully with the
requirements of all applicable corporate and securities laws and
administrative policies and directions, including, without
limitation, the Applicable Legislation and its regulations and
the COMPANY ACT (British Columbia) in relation to the issue and
trading of its securities and in all matters relating to the
Offering and the Distribution;
(i) the issue and sale of the Securities and the undertaking of the
Distribution by the Issuer does not and will not conflict with,
and does not and will not result in a breach of, any of the terms
of its incorporating documents or any agreement or instrument to
which the Issuer is a party;
(j) except as disclosed in the Prospectus, neither the Issuer or its
subsidiaries, if any, is a party to any actions, suits or
proceedings which could materially affect its business or
financial condition, and no such actions, suits or proceedings
are contemplated or have been threatened;
(k) there are no judgments against the Issuer or any of its
subsidiaries, if any, which are unsatisfied, nor are there any
consent decrees or injunctions to which the Issuer or any of its
subsidiaries, if any, is subject;
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(l) this Agreement has been duly authorized by all necessary
corporate action on the part of the Issuer and the Issuer has
full corporate power and authority to undertake the Offering,
qualify the Prospectus and undertake the Distribution;
(m) there is not presently, and will not be until the conclusion of
the Distribution, any Material Change or change in any Material
Fact relating to the Issuer which has not been or will not be
fully disclosed in the Prospectus;
(n) no order ceasing, halting or suspending trading in securities of
the Issuer or prohibiting the sale of such securities has been
issued to and is outstanding against the Issuer or its directors,
officers or promoters or against any other companies that have
common directors, officers or promoters and no investigations or
proceedings for such purposes are pending or threatened;
(o) except as disclosed in the Prospectus, no person has any right,
agreement or option, present or future, contingent or absolute,
or any right capable of becoming such a right, agreement or
option, for the issue or allotment of any unissued shares in the
capital of the Issuer or its subsidiaries, if any, or any other
security convertible into or exchangeable for any such shares, or
to require the Issuer or its subsidiaries, if any, to purchase,
redeem or otherwise acquire any of the issued and outstanding
shares in its capital;
(p) the Issuer and its subsidiaries, if any, have filed all federal,
provincial, local and foreign tax returns which are required to
be filed, or have requested extensions thereof, and have paid all
taxes required to be paid by them and any other assessment, fine
or penalty levied against them, to the extent that any of the
foregoing is due and payable, except for such assessments, fines
and penalties which are currently being contested in good faith;
(q) the Issuer and its subsidiaries, if any, have established on
their books and records reserves which are adequate for the
payment of all taxes not yet due and payable and there are no
liens for taxes on the assets of the Issuer or its subsidiaries,
if any, except for taxes not yet due, and there are no audits of
any of the tax returns of the Issuer or its subsidiaries, if any,
which are known by the Issuer's management to be pending, and
there are no claims which have been or may be asserted relating
to any such tax returns which, if determined adversely, would
result in the assertion by any governmental agency of any
deficiency which would have a material adverse effect on the
properties, business or assets of the Issuer or its subsidiaries,
if any;
(r) other than the Agent, no person, firm or corporation acting or
purporting to act at the request of the Issuer is entitled to any
brokerage, agency or finder's fee in connection with the
transactions described herein; and
(s) the warranties and representations in this Subsection are true
and correct and will remain so as of the conclusion of the
distribution under the Prospectus.
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11.2 The Agent warrants and represents to the Issuer that:
(a) it is a valid and subsisting corporation under the laws of the
jurisdiction in which it was incorporated, continued or
amalgamated;
(b) it is a member in good standing of the Exchange; and
(c) it has complied with and will fully comply with the requirements
of all applicable securities laws, including, without limitation,
the Applicable Legislation, its rules and regulations and the
by-laws and rules of the Exchange, in relation to trading in the
Securities and all matters relating to the Offering.
12. EXPENSES OF AGENT
12.1 The Issuer will pay all of the expenses of the Offering and the
Distribution and all the expenses reasonably incurred by the Agent in connection
with the Offering and the Distribution including, without limitation, the fees
and expenses of the solicitors for the Agent.
12.2 The Issuer will pay the expenses referred to in the previous Subsection
even if the Prospectus and this Agreement are not accepted by the Regulatory
Authorities or the transactions contemplated by this Agreement are not completed
or this Agreement is terminated, unless the failure of acceptance or completion
or the termination is the result of a breach of this Agreement by the Agent.
12.3 The Agent may, from time to time, render accounts to the Issuer for its
expenses for payment on the dates set out in the accounts.
12.4 The Issuer authorizes the Agent to deduct its reasonable expenses in
connection with the Offering and the Distribution from the proceeds of the
Offering, including expenses for which an account has not yet been rendered to
the Issuer.
13. FILING OF PROSPECTUS
13.1 The Issuer will cause the Prospectus to be filed with the Regulatory
Authorities, will deliver all necessary copies of the Prospectus to the
Regulatory Authorities and will use its best efforts to have the Prospectus
accepted by the Regulatory Authorities.
13.2 The Issuer will provide the Agent with as many copies of the Prospectus
as the Agent reasonably requests.
13.3 Delivery of the Prospectus and any amendment thereto shall constitute a
representation and warranty by the Issuer to the Agent that all information and
statements (except information and statements relating solely to the Agent)
contained in the Prospectus and any amendment thereto are true and correct in
all material respects at the time of delivery thereof and contain no
Misrepresentations and constitute full, true and plain disclosure of all
Material Facts relating to the Issuer and the Securities and that no Material
Fact or material information has been omitted therefrom (except facts of
information relating solely to the Agent) which is required to be stated therein
or is necessary to make statements of information contained therein not
misleading in
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light of the circumstances under which they were made. Such delivery shall
also constitute the Issuer's consent to the Agent's use of the Prospectus, any
amendment thereto and any other documents supplied to the Agent by the Issuer
for the purpose of the sale of Units in Selling Jurisdictions in compliance
herewith and with the Applicable Legislation.
14. INDEMNITY
14.1 The Issuer will indemnify the Agent and each of its agents, directors,
officers and employees (individually, an "Indemnified Party" and collectively,
the "Indemnified Parties") and save them harmless against all losses, claims,
damages or liabilities:
(a) existing (or alleged to exist) by reason of untrue statements
contained in the Prospectus or other written or oral
representation made by the Issuer to an investor in connection
with the Offering or the Distribution or by reason of the
omission to state in the Prospectus any fact necessary to make
such statements or representations not misleading (except for
information and statements referring solely to the Agent);
(b) arising directly or indirectly out of any order made by any
regulatory authority based upon an allegation that any such
untrue statement or representation or omission exists (except for
information and statements referring solely to the Agent)
including, without limitation, an order that the Distribution or
trading in or distribution of the Securities is to cease;
(c) resulting from the failure by the Issuer to file an amendment to
the Prospectus as required by this Agreement;
(d) resulting from the breach by the Issuer of any of the terms of
this Agreement;
(e) resulting from any representation or warranty made by the Issuer
herein not being true or ceasing to be true;
(f) if the Issuer fails to issue and deliver the Certificates
representing the Securities in the form and denominations
satisfactory to the Agent at the time and place required by the
Agent with the result that any completion of a sale of the
Securities does not take place; or
(g) if, following the completion of a sale of any of the Securities,
a determination is made by any competent authority setting aside
the sale unless that determination arises out of an act or
omission by the Agent.
14.2 If any action or claim is brought against an Indemnified Party in
respect of which indemnity may be sought from the Issuer pursuant to this
Agreement, the Indemnified Party will promptly notify the Issuer in writing.
14.3 The Issuer will assume the defence of the action or claim, including
the employment of counsel and the payment of all expenses.
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14.4 The Indemnified Party will have the right to employ separate counsel,
and the Issuer will pay the reasonable fees and expenses of such counsel.
14.5 The indemnity provided for in this Section will not be limited or
otherwise affected by any other indemnity obtained by the Indemnified Party from
any other person in respect of any matters specified in this Agreement and will
continue in full force and effect until all possible liability of the
Indemnified Party arising out of the transactions contemplated by this Agreement
has been extinguished by the operation of law.
14.6 If indemnification under this Agreement is found in a final judgment
(not subject to further appeal) by a court of competent jurisdiction not to be
available for reason of public policy, the Issuer and the Indemnified Parties
will contribute to the losses, claims, damages, liabilities or expenses (or
actions in respect thereof) for which such indemnification is held unavailable
in such proportion as is appropriate to reflect the relative benefits to and
fault of the Issuer, on the one hand, and the Indemnified Parties on the other
hand, in connection with the matter giving rise to such losses, claims, damages,
liabilities or expenses (or actions in respect thereof). No person found liable
for a fraudulent Misrepresentation will be entitled to contribution from any
person who is not found liable for such fraudulent Misrepresentation.
14.7 The Issuer will make no claim for, and waives irrevocably any right
by statute or common law to contribution against any Indemnified Party in the
event an action is brought against the Issuer as a result of any of the events
described in Subsection 14.1 hereof.
14.8 To the extent that any Indemnified Party is not a party to this
Agreement, the Agent will obtain and hold the right and benefit of this Section
in trust for and on behalf of such Indemnified Party.
15. RIGHT OF FIRST REFUSAL
15.1 The Issuer will notify the Agent of the terms of any further brokered
debt or equity financings that it requires or proposes to obtain during the nine
months from Closing Day and the Agent will have the right of first refusal to
provide any such financing.
15.2 The right of first refusal must be exercised by the Agent within 15
days following the receipt of the notice by notifying the Issuer that they will
provide such financing on the terms set out in the notice.
15.3 If the Agent fails to give notice within the 15 days that it will
provide such financing upon the terms set out in the notice, the Issuer will
then be free to make other arrangements to obtain financing from another source
on the same terms or on terms no less favourable to the Issuer, subject to
obtaining the acceptance of the Regulatory Authorities.
15.4 The right of first refusal will not terminate if, on receipt of any
notice from the Issuer under this Section, the Agent fails to exercise the
right.
15.5 The right of first refusal granted under this Section will terminate if
the Offering is not made by the Agent within the period provided in this
Agreement.
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16. ASSIGNMENT AND SELLING GROUP PARTICIPATION
16.1 The Agent will not assign this Agreement or any of its rights under
this Agreement or, with respect to the Securities, enter into any agreement in
the nature of an option or a sub-option unless and until, for each intended
transaction, the Agent has obtained the consent of the Issuer and notice has
been given to and accepted by the Regulatory Authorities.
16.2 The Agent may offer selling group participation in the normal course of
the brokerage business to selling groups of other licensed dealers, brokers and
investments dealers, who may or who may not be offered part of the Agent's
Commissions or Agent's Warrants to be received by the Agent pursuant to this
Agreement.
17. NOTICE
17.1 Any notice under this Agreement will be given in writing and must be
delivered, sent by facsimile transmission or mailed by prepaid post and
addressed to the party to which notice is to be given at the address indicated
above, or at another address designated by such party in writing.
17.2 If notice is sent by facsimile transmission or is delivered, it will be
deemed to have been given at the time of transmission or delivery.
17.3 If notice is mailed, it will be deemed to have been received 48 hours
following the date of mailing of the notice.
17.4 If there is an interruption in normal mail service due to strike,
labour unrest or other cause at or prior to the time a notice is mailed the
notice will be sent by facsimile transmission or will be delivered.
18. TIME
Time is of the essence of this Agreement and will be calculated in accordance
with the provisions of the INTERPRETATION ACT (British Columbia).
19. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The representations, warranties, covenants and indemnities of the parties
contained in this Agreement will survive the closing of the purchase and sale of
the Securities.
20. LANGUAGE
Wherever a singular or masculine expression is used in this Agreement, that
expression is deemed to include the plural, feminine or the body corporate where
required by the context.
21. ENUREMENT
This Agreement enures to the benefit of and is binding on the parties to this
Agreement and their successors and permitted assigns.
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22. HEADINGS
The headings in this Agreement are for convenience of reference only and do not
affect the interpretation of this Agreement.
23. COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of which will
be deemed to be an original and all of which will constitute one agreement,
effective as of the reference date given above.
24. LAW
This Agreement is governed by the law of British Columbia and shall be treated
in all respects as a British Columbia contract, and the parties hereto
irrevocably attorn and submit to the jurisdiction of the courts of British
Columbia with respect to any dispute related to this Agreement.
This document was executed and delivered as of the date given above.
AMERA RESOURCES CORPORATION
Per: /s/ Xxxxxxxx Xxxxx
--------------------------------------
Name: Xxxxxxxx Xxxxx
Title: President, Chief Executive
Officer and Director
Per: /s/ Xxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Secretary and Director
I/We have the authority to bind the
corporation
CANACCORD CAPITAL CORPORATION
Per: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
Per: /s/ Xxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
and Director
I/We have the authority to bind the
corporation
