EXHIBIT 4.11
ENGAGEMENT AGREEMENT BETWEEN THE COMPANY AND
CANACCORD CAPITAL CORPORATION DATED MARCH 8, 2004
AGENCY AGREEMENT -- UNIT PRIVATE PLACEMENT
THIS AGREEMENT dated for reference March 8, 2004, is made
BETWEEN
AMERA RESOURCES CORPORATION, 000 - 000 Xxxx
Xxxxxxxx Xxxxxx, Xxxxxxxxx, X.X. X0X 0X0
(the "Issuer");
AND
CANACCORD CAPITAL CORPORATION, 0000 - 000
Xxxxxxxxx Xxxxxx, Xxxxxxxxx, X.X. X0X 0X0
(the "Agent").
WHEREAS:
A. The Issuer wishes to privately place with purchasers up to 1,250,000 Units
at a price of $0.80 per Unit;
B. The Issuer wishes to appoint the Agent to distribute the Units, and the
Agent is willing to accept such appointment on the terms and conditions of this
Agreement; THE PARTIES to this Agreement therefore agree:
1. DEFINITIONS
In this Agreement and the Recitals hereto:
(a) "Administration Fee" means the fee to be paid to the Agent by the
Issuer in consideration of the Agent's services in connection with
the coordination and review of the Private Placement;
(b) "Agent's Fee" means the fee which is set out in this Agreement and
which is payable by the Issuer to the Agent in consideration of the
services performed by the Agent under this Agreement;
(c) "Agent's Units" means the units of the Issuer, with the same terms
as the Units, which may be issued to the Agent, at its election, in
lieu of up to half of the Agent's cash commission;
(d) "Agent's Warrants" means the share purchase warrants of the Issuer
which will be issued as part of the Agent's Fee and which have the
terms provided in this Agreement and the certificates representing
such share purchase warrants;
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(e) "Agent's 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 Agent's Warrants;
(f) "Applicable Legislation" means the securities act in the Selling
Provinces, together with all the regulations and rules made and
promulgated thereunder and all administrative policy statements,
instruments, blanket order and rulings, notices and administrative
directions issued by the Commissions;
(g) "Closing" means a day or days Units are issued to the Purchasers;
(h) "Commissions" means the securities commission or equivalent
regulatory authority in the Selling Provinces;
(i) Corporate Finance Shares" means the previously unissued common
shares of the Issuer which will be issued as part of the Corporate
Finance Units;
(j) "Corporate Finance Units" means the units of the Issuer to be issued
to the Agent by the Issuer in consideration of the corporate finance
and related services provided by the Agent;
(k) "Corporate Finance Warrants" means the share purchase warrants of
the Issuer which will be issued as part of the Corporate Finance
Units and which have the terms provided in this Agreement and the
certificates representing such share purchase warrants;
(1) "Corporate Finance 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 Corporate
Finance Warrants;
(m) "Current AIF" has the meaning defined in the Multilateral
Instrument;
(n) "Exemptions" means the exemptions from the prospectus requirements
of the Applicable Legislation;
(o) "Exchange" means the TSX Venture Exchange;
(p) "Exchange Policies" means the rules and policies of the Exchange;
(q) "Final Closing" means the final closing under the Private Placement;
(r) "First Closing" means the first closing under the Private Placement;
(s) "Material Change" has the meaning defined in the Applicable
Legislation;
(t) "Material Fact" has the meaning defined in the Applicable
Legislation;
(u) "Multilateral Instrument" means Multilateral Instrument 45-102 or
any successor instrument promulgated by the Commissions;
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(v) "Multilateral Instrument Certificate" means Form 45- 102F2;
(w) "Private Placement" means the offering of the Units on the terms and
conditions of this Agreement;
(x) "Purchasers" means the purchasers of Units pursuant to the Private
Placement;
(y) "Qualifying Issuer" has the meaning defined in the Multilateral
Instrument;
(z) "Regulation S" means Regulation S promulgated under the SECURITIES
ACT OF 1933 (United States), as amended;
(aa) "Regulatory Authorities" means the Commissions and the Exchange;
(bb) "Securities" means the Units, the Shares, the Warrants and the
Warrant Shares, the Agent's Warrants, the Agent's Warrant Shares and
the Corporate Finance Shares;
(cc) "Selling Provinces" means British Columbia, Alberta and Ontario;
(dd) "Shares" means the previously unissued common shares in the capital
of the Issuer, as presently constituted, which will be issued as
part of the Units and the Agent's Units;
(ee) "Units" means the units of the Issuer to be offered by the Issuer
pursuant to this Agreement having the terms provided in this
Agreement;
(ff) "Warrants" means the non-transferable share purchase warrants of the
Issuer which will be issued as part of the Units and Agent's Units
and which have the terms provided in this Agreement and the
certificates representing such share purchase warrants; and
(gg) "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
The Issuer appoints the Agent as its exclusive agent and the Agent accepts the
appointment and agrees to act as the exclusive agent of the Issuer to use its
commercially reasonable efforts to find and introduce to the Issuer potential
purchasers to purchase up to 1,250,000 Units, at a price of $0.80 per Unit, by
way of private placement under the Exemptions.
3. THE UNITS
Each Unit will consist of one Share and one Warrant and the Shares and Warrants
will be issued and registered in the names of the Purchasers or their nominees.
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4. WARRANTS
4.1 The right to purchase a Warrant Share under a Warrant may be exercised at
any time until the close of business on the day which is 24 months from the date
of issue of the Unit under which such Warrant was issued to the holder.
4.2 One Warrant will entitle the holder, on exercise, to purchase one Warrant
Share at a price of $1.00 per Warrant Share during the initial 12 months of the
24 month exercise period of the Warrant and at a price of $1.20 per Warrant
Share during the remaining 12 months of such exercise period.
4.3 The certificates representing the Warrants will, among other things,
include provisions for the appropriate adjustment in the class, number and price
of the Warrant Shares issued upon exercise of the Warrants upon the occurrence
of certain events, including any subdivision, consolidation or reclassification
of the Issuer's common shares, the payment of stock dividends and the
amalgamation of the Issuer.
4.4 The issue of the 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 Warrants may be exercised.
5. AGENT'S FEE
5.1 In consideration of the services performed by the Agent under this
Agreement, the Issuer agrees to pay to the Agent on each Closing an Agent's Fee
consisting of:
(a) a commission equal to 8% of the gross proceeds received by the
Issuer from the sale of the Units on such Closing; and
(b) that number of Agent's Warrants which is equal to 12% of the number
of Units sold on such Closing.
5.2 The Agent, at its sole discretion, may elect to be paid up to half of the
cash commission set forth in paragraph 5.1(a) in Agent's Units which will have
a deemed value of $0.80 per Agent's Unit.
5.3 The right to purchase an Agent's Warrant Share under an Agent's Warrant
may be exercised at any time until the close of business on the day which is 24
months from the date such Agent's Warrant was issued to the holder.
5.4 One Agent's Warrant will entitle the holder, on exercise, to purchase one
Agent's Warrant Share at a price of $0.90 per Agent's Warrant Share.
5.5 The Issuer will also pay the Agent, on First Closing of the Private
Placement or termination of this Agreement, the Administration Fee in the
amount of $ 7,500.
5.6 The Issuer agrees to pay a Corporate Finance Fee to the Agent by the
issuance of 40,000 Corporate Finance Units on the First Closing.
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5.7 The Corporate Finance Unit is comprised of one Corporate Finance Share and
one Corporate Finance Warrant.
5.8 The Corporate Finance Warrants will be represented by certificates, and
will be non-transferable except as permitted by Applicable Legislation and any
order granted by the Commissions.
5.9 One Corporate Finance Warrant will entitle the holder to purchase one
common share of the Issuer. The right to purchase Corporate Finance Warrant
Shares may be exercised at any time up to the close of business 24 months from
the day the Corporate Finance Warrant was issued to the holder, at a price of
$1.00 per Corporate Finance Warrant Share during the initial 12 months of the 24
month exercise period of the Corporate Finance Warrant and at a price of $1.20
per Corporate Finance Warrant Share during the remaining 12 months of such
exercise period.
5.10 The Agent's Warrants and Corporate Finance Warrants will be
non-transferable except as permitted by the Applicable Legislation and any order
granted by the Commissions.
5.11 The certificates representing the Agent's Warrants and Corporate Finance
Warrants will, among other things, include provisions for the appropriate
adjustment in the class, number and price of the Agent's Warrant Shares and
Corporate Finance Warrant Shares issued upon exercise of the Agent's Warrants or
Corporate Finance Warrants upon the occurrence of certain events, including any
subdivision, consolidation or reclassification of the Issuer's common shares,
the payment of stock dividends and the amalgamation of the Issuer.
5.12 The issue of the Agent's Warrants and Corporate Finance 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 or Corporate Finance Warrants may be exercised.
5.13 The Issuer agrees not to place a U.S. securities law restrictive legend on
the certificates representing the securities issued to the Agent as part of its
compensation.
5.14 In the event that the Agent is willing to proceed with the financing,
but the Issuer precludes the Agent from completing the financing, the
Administration Fee and the Corporate Finance Units shall be paid and issued to
the Agent.
6. OFFERING RESTRICTIONS
6.1 The Agent will only sell the Units to persons who represent themselves as
being:
(a) persons purchasing as principal;
(b) qualified to purchase the Units, the Shares and the Warrants under
the Exemptions; and
(c) persons who are not U.S. Persons, or in the United States (which
terms herein shall have the meanings defined in Regulation S).
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6.2 The Agent agrees that at the time any buy order for the Units is placed by
clients of the Agent, the buyer will be outside the United States, or the Agent
and all persons acting on their behalf will reasonably believe that the buyer is
outside the United States, and neither the Agent nor any person acting on their
behalf will have knowledge that such transaction has been pre-arranged with a
buyer in the United States.
6.3 Neither the Issuer, the Agent, nor any of their respective affiliates, nor
any person acting on behalf of any of the foregoing, will offer or sell any of
the Securities to U.S. Persons or in the United States, or undertake any
activity for the purpose of, or that could reasonably be expected to have the
effect of, conditioning the market for the Securities in the United States.
6.4 The Private Placement has not been and will not be advertised in any way.
6.5 No selling or promotional expenses will be paid or incurred in connection
with the Private Placement, except for professional services or for services
performed by a registered dealer.
7. SUBSCRIPTIONS
The Agent will use its best efforts to obtain from each Purchaser introduced by
the Agent, and deliver to the Issuer, on or before each Closing duly completed
and signed subscriptions in the form consented to by the Issuer and the Agent
and executed by the Purchaser.
8. FILINGS WITH THE REGULATORY AUTHORITIES
8.1 The Issuer will forthwith give to the Exchange written notice of the terms
of this Agreement and the proposed Private Placement and all other information
required by the Exchange Policies (the "Notice").
8.2 The Issuer will forthwith provide the Agent and its solicitor with a copy
of the Notice, and, forthwith on receipt, a copy of the preliminary and final
letters of acceptance of the Notice from the Exchange.
8.3 The Issuer will file all required documents, pay all required filing fees
and undertake any other actions required by the Exchange Policies in order to
obtain the approval of the Exchange to the Private Placement.
8.4 Within 10 days of each Closing of the Private Placement, the Issuer will:
(a) file with the Commissions any report required to be filed by the
Applicable Legislation in connection with the Private Placement, in
the required form; and
(b) provide the Agent's solicitor with copies of the report or reports.
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9. CLOSINGS
9.1 In this Section:
(a) "Certificates" means the certificates representing the Shares and
the Warrants (sold to Purchasers or issuable to the Agent); the
Agent's Warrants; the Corporate Finance Shares; and the Corporate
Finance Warrants to be issued, on a Closing in the names and
denominations reasonably requested by the Agent or the Purchasers,
as the case may be; and
(b) "Proceeds" means the gross proceeds of the sale of Units on a
Closing, less:
(i) any portion of the Agent's Fee which is payable in cash;
(ii) at the First Closing, the Administration Fee;
(iii) the reasonable expenses of the Agent in connection with the
Private Placement which have not been paid by the Issuer; and
(iv) any amount paid directly to the Issuer by purchasers in
connection with the Private Placement.
9.2 The Issuer and the Agent will cause the Closing to take place in one or
more closings, however, the Final Closing will not occur more than 60 days from
the date of the price reservation filed with the Exchange or such other date as
may be acceptable to the Exchange.
9.3 The Issuer will, on each Closing, issue and deliver the Certificates to
the Agent, or at the Agent's request, to the Purchasers, against payment of the
Proceeds.
9.4 If the Issuer has satisfied all of its material obligations under this
Agreement, the Agent will, on each Closing, pay the Proceeds to the Issuer
against delivery of the Certificates.
9.5 The Issuer will endorse the Certificates, and the certificates
representing the Warrant Shares, the Agent's Warrant Shares and Corporate
Finance Warrant Shares with such legends as required by the Applicable
Legislation and the Exchange.
10. CONDITIONS OF CLOSINGS
10.1 The obligations of the Agent on each Closing will be conditional upon the
following:
(a) on each Closing, the Issuer will have delivered to the Agent and its
solicitor a favourable opinion of the Issuer's solicitor dated as of
the date of such Closing, in a form acceptable to the Agent and its
solicitor as to all legal matters reasonably requested by the Agent
relating to the business of the Issuer and the creation, issuance
and sale of the Securities;
(b) on each Closing, the Issuer will have delivered to the Agent and its
solicitor such certificates of its officers and experts, comfort
letters or opinions of its auditors,
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and other documents relating to the Private Placement or the affairs
of the Issuer as the Agent or its solicitor may reasonably request;
(c) each representation and warranty of the Issuer which is contained in
this Agreement continues to be true, and the Issuer has performed or
complied with all of its covenants, agreements and obligations under
this Agreement; and
(d) no Commission has advised the Issuer in writing that its securities
are not eligible for the four month hold period provided for in the
Multilateral Instrument.
10.2 Each Closing and the obligations of the Issuer and the Agent to complete
the issue and sale of the Securities are subject to:
(a) receipt of all required regulatory approval for or acceptance of the
Private Placement;
(b) the removal or partial revocation of any cease trading order or
trading suspension made by any competent authority to the extent
necessary to complete the Private Placement; and
(c) the Issuer being a Qualifying Issuer at the time of such Closing.
11. MATERIAL CHANGES
The Issuer agrees that if, between the date of this Agreement and the Final
Closing a Material Change, or a change in a Material Fact occurs, the Issuer
will:
(a) as soon as practicable notify the Agent in writing, setting forth
the particulars of such change;
(b) as soon as practicable, issue and file with the Regulatory
Authorities a press release that is authorized by a senior officer
disclosing the nature and substance of the change;
(c) as soon as practicable file with the Commissions the report required
by the applicable securities legislation and in any event no later
than 10 days after the date on which the change occurs; and
(d) provide copies of that press release, when issued, and that report,
when filed, to the Agent and its solicitor.
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12. QUALIFYING ISSUER
12.1 The Issuer is a Qualifying Issuer and the Shares, Warrants, Warrant
Shares, Agent's Warrants, Agent's Warrant Shares, Corporate Finance Shares,
Corporate Finance Warrants, and Corporate Finance Warrant Shares will be subject
to a four month hold period from Closing.
12.2 The Issuer will provide the Agent with a copy of the Multilateral
Instrument Certificate filed with Commissions within 10 days of each Closing.
13. TERMINATION
13.1 The Agent may terminate its obligations under this Agreement by notice in
writing to the Issuer at any time before the Final Closing if:
(a) an adverse Material Change, or an adverse change in a Material Fact
relating to any of the Securities, occurs or is announced by the
Issuer;
(b) 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 its subsidiaries, if any, or the
ability of the Agent to perform its obligations under this
Agreement, or a Purchaser's decision to purchase the Units;
(c) following a consideration of the history, business, products,
property or affairs of the Issuer or its principals and promoters,
or of 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 sole discretion, that it is not in the interest
of the Purchasers to complete the purchase and sale of the Units;
(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;
(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;
(f) any order to cease, halt or suspend trading (including an order
prohibiting communications with persons in order to obtain
expressions of interest) in the securities of the Issuer prohibiting
or restricting the Private Placement is made by a competent
regulatory authority and that order is still in effect;
(g) the Issuer is in breach of any material term of this Agreement; or
(h) the Agent determines that any of the representations or warranties
made by the Issuer in this Agreement is false or has become false.
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13.2 The Agent's obligations hereunder will terminate if the Exchange does not
issue its final letter of acceptance, subject only to usual post-Closing filings
with the Exchange, of the Private Placement within 90 days of the reference date
of this Agreement, unless otherwise agreed in writing by the Agent.
14. WARRANTIES, REPRESENTATIONS AND COVENANTS
14.1 The Issuer warrants and represents to and covenants with 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 jurisdiction 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 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 are as disclosed to
the Exchange and the outstanding shares of the Issuer are fully paid
and non-assessable;
(d) the Issuer will reserve or set aside sufficient shares in its
treasury to issue the Shares, the Warrant Shares, the Agent's
Warrant Shares, the Corporate Finance Shares, the Corporate Finance
Warrant Shares and all such shares will be duly and validly issued
as fully paid and non-assessable;
(e) except as qualified by the disclosure in all prospectuses, filing
statements, annual information forms, including the Issuer's Current
AIF and press releases filed with the Commissions or the Exchange,
(the "Disclosure Record") 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 Disclosure Record, all
agreements by which the Issuer holds an interest in a property,
business or assets 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 subscription form and all other written or oral representations
made by the Issuer to a Purchaser or potential Purchaser in
connection with the Private Placement 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 filed with the Commissions or supplied by
the Issuer to the Agent in connection with the Private Placement
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 of the
date thereof, and no adverse material changes in the financial
position of the Issuer have taken place since the date thereof, save
in the ordinary course of the Issuer's business;
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(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 in relation to the issue and trading of its
securities and in all matters relating to the Private Placement;
(i) there is not presently, and will not be until the Final Closing, any
Material Change or change in any Material Fact relating to the
Issuer which has not been or will not be fully disclosed to the
Agent;
(j) the issue and sale of the Securities by the Issuer and the Agent
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;
(k) neither the Issuer nor any of its subsidiaries is a party to any
actions, suits or proceedings which could materially affect its
business or financial condition, and to the best of the Issuer's
knowledge no such actions, suits or proceedings are contemplated or
have been threatened which are not disclosed in the Disclosure
Record;
(1) 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;
(m) this Agreement has been or will be by the First Closing, 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 Private Placement;
(n) the Issuer is a "reporting issuer" in the provinces of British
Columbia and Alberta and is not in default of any of the
requirements of the Applicable Legislation of those provinces or any
of the administrative policies or notices of the Regulatory
Authorities of those provinces;
(o) no order ceasing, halting or suspending trading in securities of the
Issuer nor 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;
(p) except as disclosed in the Disclosure Record or otherwise to the
Regulatory Authorities, 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;
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(q) 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;
(r) 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;
(s) neither the execution or delivery of this Agreement nor the carrying
on of the business of the Issuer by the employees of the Issuer, nor
the conduct of the business of the Issuer will conflict with or
result in a breach of the terms, conditions, or provisions of or
constitute a default under, any contract, covenant or instrument
under which any of such employees is now obligated;
(t) 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;
(u) the Issuer has and will have filed all documents that are required
to be filed under the continuous disclosure provisions of the
Applicable Legislation, including annual and interim financial
information and annual reports, press releases disclosing material
changes and material change reports; and
(v) the warranties and representations in this Section are true and
correct and will remain so as of the Final Closing.
14.2 The Agent warrants and represents to the Issuer that:
(a) it is a valid and subsisting corporation under the law of the
jurisdiction in which it was incorporated;
(b) it is a broker registered under the Applicable Legislation;
(c) it is a member in good standing of the Exchange; and
(d) it will sell the Units in compliance with the Applicable
Legislation.
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15. EXPENSES OF AGENT
15.1 The Issuer will pay all of the expenses of the Private Placement and all
the expenses reasonably incurred by the Agent in connection with the Private
Placement including, without limitation, the reasonable fees and expenses of the
solicitor for the Agent which will not exceed $11,000 without the consent of the
Issuer, such consent not to be unreasonably withheld.
15.2 The Issuer will pay the expenses referred to in the previous Subsection
even if 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.
15.3 The Agent may, from time to time, render accounts for its expenses in
connection with the Private Placement to the Issuer for payment on or before the
dates set out in the accounts.
15.4 The Issuer authorizes the Agent to deduct its reasonable expenses in
connection with Private Placement from the proceeds of the Private Placement and
any advance payments made by the Issuer, including expenses for which an account
has not yet been rendered.
16. INDEMNITY
16.1 The Issuer will indemnify the Agent and each of the Agent's 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 by reason of an untrue statement contained in the
Disclosure Record, subscription agreement or other written or oral
representation made by the Issuer to a Purchaser or potential
Purchaser in connection with the Private Placement, or by reason of
the omission to state any fact necessary to make such statements or
representations not misleading (except for information and
statements supplied by and relating 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 information
and statements supplied by and relating solely to the Agent), that
trading in or distribution of any of the Securities is to cease;
(c) resulting from the failure by the Issuer to obtain the requisite
regulatory approval to the Private Placement unless the failure to
obtain such approval is the result of a breach of this Agreement by
the Agent;
(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
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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.
16.2 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.
16.3 The Issuer will assume the defence of the action or claim, including the
employment of counsel and the payment of all expenses.
16.4 The Indemnified Party will have the right to employ separate counsel, and
the Issuer will pay the reasonable fees and expenses of such counsel.
16.5 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 Parties
arising out of the transactions contemplated by this Agreement has been
extinguished by the operation of law.
16.6 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 (within the meaning of applicable securities
laws) will be entitled to contribution from any person who is not found liable
for such fraudulent misrepresentation.
16.7 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.
17. ASSIGNMENT AND SELLING GROUP PARTICIPATION
17.1 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 any required
notice has been given to and accepted by the Regulatory Authorities.
17.2 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 Fee.
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18. NOTICE
18.1 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 the party in writing.
18.2 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.
18.3 If notice is mailed, it will be deemed to have been received 48 hours
following the date of mailing of the notice.
18.4 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.
19. RIGHT OF FIRST REFUSAL
19.1 The Issuer will notify the Agent of the terms of any further brokered
equity financing that it requires or proposes to obtain during the 12 months
following the Final Closing and the Agent will have the right of first refusal
to provide any such financing.
19.2 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.
19.3 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.
19.4 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.
20. TIME
Time is of the essence of this Agreement and will be calculated in accordance
with the provisions of the INTERPRETATION ACT (British Columbia).
21. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The representations, warranties, covenants and indemnities of the Issuer and
the Agent contained in this Agreement will survive the Final Closing.
22. LANGUAGE
This Agreement is to be read with all changes in gender or number as required
by the context.
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23. ENUREMENT
This Agreement enures to the benefit of and is binding on the parties to this
Agreement and their successors and permitted assigns.
24. HEADINGS
The headings in this Agreement are for convenience of reference only and do not
affect the interpretation of this Agreement.
25. COUNTERPARTS
This Agreement may be executed in two or more counterparts and may be delivered
by facsimile transmission, 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.
26. LAW
This Agreement is governed by the law of British Columbia, 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
--------------------------------
Authorized Signatory
Per: /s/ Xxxxxx Xxxxxx
--------------------------------
Authorized Signatory
) CANACCORD CAPITAL
) CORPORATION
)
) Per: /s/ Xxxxxx Xxxxxxx
) --------------------------------
) Authorized Signatory
c/s )
) Per: /s/ Xxxxx Xxxxxx
) --------------------------------
) Authorized Signatory
)
) I/We have the authority to bind the
) corporation
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