Exhibit 10.55
THIS SECOND SUPPLEMENTAL INDENTURE is dated as of FEBRUARY 11, 2003.
BETWEEN:
STAR RESOURCES CORP. having an address at 2000 South Dairy Ashford
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Xxxxx 000, Xxxxxxx, Xxxxx, XXX, 00000
(the "CORPORATION")
AND:
COMPUTERSHARE TRUST COMPANY OF CANADA, a trust company incorporated pursuant to
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the laws of British Columbia, having an office at 4th Floor - 000 Xxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
(the "TRUSTEE")
WHEREAS:
A. Pursuant to a trust indenture dated as of February 16, 2001 between the
Corporation and Montreal Trust Corporation of Canada ("MONTREAL TRUST") as
amended by supplemental indenture dated as of April 10, 2001 (together, the
"TRUST INDENTURE"), the Corporation issued 10% Convertible Debentures in
the aggregate principal amount of CAD$1,278,595;
B. Pursuant to an Assignment Agreement dated effective July, 2002, the rights
powers and duties of Montreal Trust under the Trust Indenture were assigned
and transferred to and assumed by the Trustee;
C. By extraordinary resolutions passed effective February 11, 2003 (the
"EXTRAORDINARY RESOLUTIONS"), the Debentureholders approved, consented to
and agreed to certain amendments set forth below (the "AMENDMENTS") to the
Trust Indenture and authorized and directed the Trustee to execute a
supplemental indenture (this "SECOND SUPPLEMENTAL INDENTURE");
D. The Corporation and the Trustee wish to amend the Trust Indenture on the
terms specified in this Second Supplemental Indenture.
NOW THEREFORE in consideration of the premises and the covenants of the
parties, it is agreed and declared as follows:
ARTICLE ONE
INTERPRETATION
1.01 Definitions
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In this Supplemental Indenture, unless there is something in the subject
matter or context inconsistent therewith, those terms having a meaning
defined by the Trust Indenture shall have the same meaning when used in
this Supplemental Indenture.
ARTICLE TWO
AMENDMENTS
2.01 The following definitions are added, in alphabetical order, to
section 1.01 "Definitions" of the Trust Indenture:
"AUTOMATIC CONVERSION DATE" means, in respect of any particular
Debenture, the date which is the seventh (7th) day following the day
which is the tenth (10th) of the Premium Trading Days.
"PREMIUM TRADING DAYS" shall mean any ten (10) consecutive Trading
Days during which the closing price of the Common Shares is CAD$0.375
or more; 2.02 The following definitions in Section 1.01 of the Trust
Indenture are deleted in their entirety and the following substituted
therefor:
"CONVERSION PRICE" means CDN$0.30 per Unit or such other dollar amount
for which Units may be issued from time to time upon the conversion of
the Debentures in accordance with the provisions of Article Five;
"DEBENTURES" means the 10% convertible redeemable secured debentures
of the Corporation issued and certified under this Trust Indenture as
such may be amended by the terms of any supplemental indenture entered
into pursuant to the terms of Article 10 of this Trust Indenture;
"MATURITY" means February 16, 2004, provided that in the event such
date is not a Business Day, then on the next succeeding day that is a
Business Day;
"TRADING DAY" means any day on which the Common Shares are listed and
posted for trading on the TSX Venture Exchange or, if not listed and
posted for trading on such exchange, on a Recognized Stock Exchange,
and on which no cease trading or similar order is in effect with
respect to Common Shares;
"WARRANTS" means the up to 4,261,983 non-transferable common share
purchase warrants of the Corporation which may be issued on conversion
of Debentures to Debentureholders who were arm's length to the
Corporation at the time of issuance of the Debentures, each Warrant
exercisable into one Common Share at a price of CDN$0.30 per share in
substantially the form attached as Schedule "A";
"WEIGHTED AVERAGE PRICE" means the price calculated by dividing that
number which represents the aggregate trading prices of all board lot
sales of the Common Shares on the TSX Venture Exchange or, if not
listed and posted for trading on such exchange, on a Recognized Stock
Exchange, during the 20 Trading Days ending 5 Trading Days immediately
prior to Maturity, the date on which notice of redemption of a
Debenture is given or deemed to be given under the terms of this
Indenture, the Date of Conversion, the Automatic Conversion Date or
the date which is the record date of any event referred to in Section
5.07(as renumbered), as the case may be, by the number which
represents the aggregate number of Common Shares sold in such board
lot sales during such period; provided that for the purposes of this
definition, no Trading Day shall be included if on such Trading Date
the Corporation or any insider of the Corporation (within the meaning
of the Securities Act (British Columbia)) effects a trade in Common
Shares and the foregoing reference to 20 Trading Days shall be to 20
Trading Days in which there is no such Corporation or insider trade;
2.03 Section 2.02 of the Trust Indenture is deleted in its entirety
and the following substituted therefor:
"SECTION 2.02 - DATE, MATURITY AND INTEREST Each Debenture shall (a)
be dated as of February 16, 2001, (b) mature on February 16, 2004, at
which time subject to earlier conversion or redemption pursuant to the
terms hereof, the Corporation shall pay to the holders of Debentures
then outstanding an amount equal to 100% of the then outstanding
principal amount of such Debentures plus all accrued but unpaid
interest on such Debentures, and (c) bear interest on the principal
amount of Debentures from but excluding February 16, 2001, to and
including the date of Maturity (subject to earlier redemption or
conversion pursuant to the terms hereof, in which case interest shall
cease to accrue on the date of redemption or conversion, as
applicable) at the rate of 10% per annum both before and after
maturity and default (including, in case of default, interest at the
same rate on all amounts overdue) calculated and payable on the date
of Maturity."
2.04 The title of Article 5 of the Trust Indenture be amended to read
"CONVERSION OF DEBENTURES", and the following Section be added to
Article 5 as Section 5.02:
"SECTION 5.02 - AUTOMATIC CONVERSION OF DEBENTURES
(1) The entire principal amount of the Debentures shall and shall
be deemed to be automatically converted into Units at the
Conversion Price on the Automatic Conversion Date and on that
date the holders of all Debentures, regardless of their
respective dates of issue shall be deemed to have surrendered and
converted 100% of the principal amount of such Debentures without
any further action on their part and the Common Shares and
Warrants issuable in respect thereof shall be deemed to be issued
at such time.
(2) At the Close of Business on the Automatic Conversion Date,
all rights under the Debentures will wholly cease and terminate
and the certificates for the Debentures therefor will be void and
of no effect and be deemed to have been surrendered and cancelled
at that time except for the right of the holders of Debentures to
receive the Common Shares and Warrants comprising the Units to
which they are entitled hereunder and accrued interest payable
pursuant to Section 5.04 (renumbered) hereof.
(3) The Corporation shall notify the Trustee of the occurrence of
the Automatic Conversion Date, in the manner provided in Section
13.01." 2.05 Sections 5.02 through Section 5.13 of Article 5 are
renumbered as Section 5.03 through 5.14, consecutively, and all
cross-references to Sections 5.02 through 5.13 elsewhere in the
Trust Indenture be deemed to be renumbered accordingly.
2.06 Subsection (2) of former Section 5.02 (now renumbered 5.03) is deleted
in its entirety and replaced with the following:
"(2) As promptly as possible after the Date of Conversion the
Corporation shall issue or cause to be issued and deliver or
cause to be delivered to the holder whose Debenture is so
surrendered, or upon his written order, certificates in the name
or names of the person or persons specified in the "Election of
Conversion Privilege" portion of the Debenture evidencing the
number of Common Shares and the number of Warrants deliverable
upon the conversion of such Debenture, or the specified portion
thereof, as the case may be, and any cash which may be payable in
accordance with Sections 5.04 and 5.06 hereof. In the event of an
automatic conversion of the Debentures pursuant to Section 5.02,
as promptly as possible after the Automatic Conversion Date the
Corporation shall issue or cause to be issued and deliver or
cause to be delivered to the holders of record of Debentures on
the Automatic Conversion Date as recorded on the register of
Debentureholders maintained by the Trustee the number of Common
Shares and the number of Warrants deliverable upon the conversion
of such Debenture and any cash which may be payable in accordance
with Sections 5.04 and 5.06 hereof. Such conversion shall be
deemed to have been effected immediately prior to the Close of
Business on the Date of Conversion or Automatic Conversion Date,
as applicable, and at such time the rights of the holder of such
Debentures as such holder shall cease to the extent of the
portion of the principal amount of the Debenture so converted
(which shall be the entire principal amount in the case of an
automatic conversion) and the person or persons in whose name or
names any certificates for Common Shares and Warrants shall be
deliverable upon such conversion shall be deemed to have become
on such date the holder or holders of record of the Common Shares
and Warrants represented thereby; provided, however, that no such
surrender on any date when the share transfer registers for
Common Shares and Warrants of the Corporation shall be closed
shall be effective to constitute the person or persons entitled
to receive Common Shares and Warrants upon such conversion as the
holder or holders of record of such Common Shares and Warrants on
such date, but such surrender shall be effective to constitute
the person or persons entitled to receive such Common Shares and
Warrants as the holder or holders of record thereof for all
purposes at the Close of Business on the next succeeding day on
which such share transfer registers are open and such conversion
shall be at the Conversion Price in effect on the Date of
Conversion."
2.07 References elsewhere to "DATE OF CONVERSION" in the Trust Indenture
shall be deemed amended to read "DATE OF CONVERSION OR AUTOMATIC
CONVERSION DATE, AS APPLICABLE".
2.08 The form of certificate evidencing the Debentures set forth in Section
12.01 - "Form of Debenture" and as issued to the holders of Debentures
(the "CERTIFICATES") be and they are deemed to be amended to accord
with the amendments to the Trust Indenture made by this Second
Supplemental Indenture and all such amendments be and they are hereby
deemed incorporated in the Certificates.
2.09 The form of certificate evidencing the Warrants set forth as Schedule
"A" of the Trust Indenture is deleted in its entirety and replaced
with the form of certificate attached as Schedule "A" to this Second
Supplemental Indenture.
ARTICLE THREE
GENERAL
3.01 Effect of Amendments
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The parties confirm that the Trust Indenture, as amended by this Second
Supplemental Indenture, remains in full force and effect. From the date
hereof, the Trust Indenture and this Second Supplemental Indenture shall be
read together to the extent reasonably possible as though all of the terms
of both documents were contained in one instrument.
3.02 Counterparts and Formal Date
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This Second Supplemental Indenture may be executed in several counterparts,
each of which when so executed shall be deemed to be an original and the
counterparts together shall constitute one and the same instrument and,
notwithstanding the date of their execution, shall be deemed to be the date
first above written. IN WITNESS WHEREOF the parties have hereto executed
these presents under the hands of their proper officers in that behalf.
STAR RESOURCES CORP.
Per: --------------------------------
Authorized Signatory
COMPUTERSHARE TRUST COMPANY OF CANADA
Per: -------------------------------
Authorized Signatory
Per: --------------------------------
Authorized Signatory
SCHEDULE "A"
WARRANT NO.: ______________________
WARRANT TO PURCHASE COMMON SHARES
OF
STAR RESOURCES CORP.
(Incorporated under the laws of
the Province of British Columbia)
THIS IS TO CERTIFY THAT, for value received,
_________________________________________, the Holder of this Warrant, is
entitled to purchase:
________________________________ (______________________________________)
non-assessable common shares of Star Resources Corp. (hereinafter called the
"CORPORATION") as such shares were constituted on January 16, 2003 at any time
up to 4:30 p.m. local time at the City of Vancouver, Province of British
Columbia, on the earlier of (the "EXPIRY DATE"):
a) February 16, 2004, and
b) the day which is the 36th day following the tenth of the Premium Trading
Days (as hereinafter defined),
at and for a price of $0.30 per share of lawful money of Canada, upon and
subject to the terms and conditions attached hereto.
This Warrant may not be transferred by the holder. This Warrant and the common
shares to be issued upon its exercise have not been registered under the United
States Securities Act of 1933, as amended ("the Act") or the securities laws of
any state of the United States. This Warrant may not be exercised by or on
behalf of any U.S. person, directly or indirectly, or in the United States,
unless (i) the common shares are registered under the Act and the applicable
laws of any such state, or, (ii) an exemption from such registration
requirements is available. "United States" and "U.S. person" are as defined by
Rule 901 of Regulation S under the Act.
This Warrant may be exercised only at the offices of the Corporation, 0000 Xxxxx
Xxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx, 00000.
STAR RESOURCES CORP.
Per: -------------------------
Director
DATE: -------------------------
NOTE: Any share certificates issued upon exercise of this warrant bearing
the legend set forth in Section 5.13 of the Trust Indenture dated February 16,
2001 will be printed with a legend as follows:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "U.S. SECURITIES
ACT"), AND ARE NON-TRANSFERABLE. ANY OTHER REFERENCE TO THE U.S. SECURITIES
ACT APPEARING ON THIS CERTIFICATE, AND THE REQUIREMENT ON THE SUBSCRIPTION
FORM TO CHECK ONE OF THE BOXES CERTIFYING AS TO WHETHER THE HOLDER IS
WITHIN THE UNITED STATES, DO NOT APPLY TO THE HOLDER OF A CERTIFICATE
BEARING THIS LEGEND."
TERMS, CONDITIONS AND INSTRUCTIONS
1. For the purposes of this Warrant "PREMIUM TRADING DAYS" shall mean any ten
(10) consecutive trading days during which the closing price of the Common
Shares of the Corporation on the TSX Venture Exchange or any other
recognized exchange, is CAD$0.375 or more;
2. The holder of this warrant may subscribe for the number of shares of the
Corporation indicated on the face hereof.
3. For each share purchased pursuant to this warrant on or before the Expiry
Date, payment must be made in the amount of $0.30 per share. All payments
must be made in Canadian Funds, in cash or by certified cheque, bank draft
or money order payable, at par, in Vancouver, British Columbia. If payment
is made by way of an uncertified cheque, the Corporation reserves the right
to deem that the payment has not been received until the cheque has cleared
the account upon which it has been drawn.
4. To exercise the rights evidenced by this warrant, this warrant with the
following Subscription Form completed, must be delivered or mailed to the
Corporation 0000 Xxxxx Xxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx, 00000 and
received by the Corporation.
5. The rights evidenced by this warrant expire at 4:30 p.m. local time in
Vancouver, British Columbia, on the Expiry Date.
6. The rights evidenced by this warrant may not be transferred.
7. If this warrant or the purchase price are forwarded by mail it is suggested
that registered mail be used as the Corporation will not be responsible for
any losses which occur through the use of mails.
8. The rights evidenced by this warrant are to purchase common shares in the
capital stock of the Corporation as they were constituted on January 16,
2003. If there shall, prior to the exercise of any of the rights evidenced
hereby, be any reorganization of the authorized capital of the Corporation
by way of consolidation, merger, sub-division, amalgamation or otherwise,
or the payment of any stock dividends, then there shall automatically be an
adjustment in either or both the number of shares of the Corporation which
may be purchased pursuant hereto or the price at which such shares may be
purchased, by corresponding amounts, so that the right evidenced hereby
shall thereafter be as reasonably as possible equivalent to those
originally granted hereby. The Corporation shall have the sole and
exclusive power to make adjustments as it considers necessary and
desirable.
SUBSCRIPTION FORM
The Undersigned, holder of the within warrant, hereby subscribes for
_______________________ common shares of Star Resources Corp. If the number of
shares purchased hereby does not exercise all of the rights evidenced by this
warrant, the holder requests issuance and delivery to it at the following
address of a new warrant evidencing the unused rights. The Undersigned directs
that the shares hereby subscribed for be issued and delivered to it as follows:
NAME ADDRESS NO. OF SHARES
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DATED this ____ day of _______________________________, 200__.
____________________________
Signature
____________________________
Name (Please print)
____________________________
Address
