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As filed with the Securities and Exchange Commission on August 12, 2005

Registration No. 333-            


UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549


FORM S-1

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933


GASTAR EXPLORATION LTD.

(Exact Name of Registrant as Specified in Its Charter)

 


 

Alberta, Canada   1311   38-3324634

(State or Other Jurisdiction of

Incorporation or Organization)

 

(Primary Standard Industrial

Classification Code Number)

 

(I.R.S. Employer

Identification Number)

1331 Lamar Street

Suite 1080

Houston, Texas 77010

(713) 739-1800

(Address, Including Zip Code, and Telephone Number, including Area Code, of Registrant’s Principal Executive Offices)


J. Russell Porter, Chief Executive Officer and President

Gastar Exploration Ltd.

1331 Lamar Street, Suite 1080

Houston, Texas 77010

(713) 739-1800

(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)


Copies to:

T. Mark Kelly

Vinson & Elkins L.L.P.

1001 Fannin, Suite 2300

Houston, Texas 77002

(713) 758-2222


Approximate date of commencement of proposed sale to the public: As soon as practicable after this Registration Statement becomes effective.

If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box.   x

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.   ¨

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.   ¨

If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.   ¨

If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box.   ¨


CALCULATION OF REGISTRATION FEE


Title of Each Class of Securities to be Registered    Amount to be
Registered (1)
  

Proposed Maximum
Offering Price

per Share (2)

  

Proposed Maximum
Aggregate

Offering Price (1) (2)

   Amount of
Registration
Fee

Common shares, without par value

   24,022,444 shares    $2.60    $62,458,354    $7,400.00

(1) Includes (i) 4,997,288 common shares issuable upon exercise of warrants at various exercise prices; (ii) 6,849,315 common shares to be issued upon conversion of the registrant’s outstanding convertible debentures; (iii) up to 4,340,836 additional common shares to be issued at various dates for no additional consideration pursuant to the terms of the original sale of the registrant’s senior secured notes (number of shares determined based upon a recent trading price of CND$3.11 per share); and (iv) 7,835,005 outstanding common shares.
(2) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) under the Securities Act of 1933 based on the average of the high and low prices of the Registrant’s common shares, as reported on The Toronto Stock Exchange on August 10, 2005, and translated into U.S. dollars at the exchange rate of $1.00 = CND$0.8256, which was the exchange rate in effect on August 10, 2005.

The Registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment that specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Securities and Exchange Commission acting pursuant to said Section 8(a), may determine.



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The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.

 

Subject to Completion, dated August 12, 2005

 

PROSPECTUS

 

[Logo]

 

24,022,444 Shares

 

Gastar Exploration Ltd.

 

Common Shares

 


 

This prospectus relates to the offer and sale, from time to time, of up to 24,022,444 common shares of Gastar Exploration Ltd., an Alberta corporation, held by or issuable to the selling shareholders listed on page 62 of this prospectus. The common shares being offered by the selling shareholders are outstanding, issuable upon conversion of the convertible debentures, issuable pursuant to outstanding subscription receipts and upon exercise of warrants. See “Selling Shareholders”. Gastar will not receive any proceeds from the sale of the shares by the selling shareholders. All the proceeds from the sale of shares will be for the respective account of each selling shareholder.

 

For a description of the plan of distribution of the shares, please see page 66 of this prospectus.

 

Our common shares are listed on the Toronto Stock Exchange under the symbol “YGA” (in the U.S., “YGA.TO”) and may also trade in the United States over-the-counter market under the symbol “GSREF.PK”. On August 5, 2005, the last reported sale prices for our common shares on The Toronto Stock Exchange and in the U.S. on the OTC Bulletin Board were CDN$3.11 and $2.56, respectively.

 

Investing in our common shares involves risks. Please read “ Risk Factors ” beginning on page 6.

 

This prospectus has not been filed in respect of, and will not qualify, any distribution of the common shares in any province or territory of Canada.

 

Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.

 


 

                        , 2005


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Index to Financial Statements

TABLE OF CONTENTS

 

Prospectus Summary

   1

The Offering

   4

Summary Consolidated Financial Data

   5

Risk Factors

   6

Cautionary Statements Regarding Forward-Looking Statements

   17

Use of Proceeds

   18

Price Range of Common Shares

   18

Dividend History

   19

Selected Historical Financial and Operational Information

   20

Management’s Discussion and Analysis of Financial Condition and Results of Operations

   21

Business

   33

Management

   56

Security Ownership of Certain Beneficial Owners and Management

   62

Description of Capital Stock

   64

Description of Indebtedness

   69

Selling Shareholders

   71

Plan of Distribution

   75

Certain Relationships and Related Party Transactions

   78

Material Income Tax Consequences

   80

Legal Matters

   84

Experts

   84

Where You Can Find More Information

   85

Index to Financial Statements

   F-1

Appendix A – Glossary of Natural Gas and Oil Terms

   A-1

 


 

You should rely only on the information contained in this prospectus. We have not authorized any other person to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. We are not making an offer to sell these securities in any jurisdiction where an offer or sale is not permitted. You should assume that the information appearing in this prospectus is accurate as of the date on the front cover of this prospectus only. Our business, financial condition, results of operations and prospects may have changed since that date.

 


 

Unless otherwise specified or the context otherwise requires, all dollar amounts in this prospectus are expressed in U.S. dollars. Canadian dollars, when used, are expressed with the symbol “CDN$”. Unless otherwise specified, where dollars are shown on a converted basis, the conversion is based upon an exchange ratio of $1.00 = CDN$0.8205, the exchange rate in effect on August 5, 2005, except for dollars set forth in or derived from the financial statements, where the exchange rate is derived as of the date of the financial statements.

 

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PROSPECTUS SUMMARY

 

This summary highlights information contained elsewhere in this prospectus. You should read the entire prospectus carefully, including the detailed information contained under the heading “Risk Factors”, consolidated financial statements and the accompanying notes to those financial statements included elsewhere in this prospectus. Unless otherwise indicated or required by the context, (i) “we”, “us”, and “our” refer to Gastar Exploration Ltd. and its subsidiaries and predecessors, (ii) “Geostar acquisition” refers to our June 2005 acquisition from Geostar Corporation (“Geostar”) of additional reserves and working interests in the Powder River Basin and in East Texas, (iii) “convertible debentures” refers to our $30.0 million principal amount of 9.75% convertible senior unsecured debentures, (iv) “warrants” refers to the warrants to purchase common shares issued to investors in connection with certain financing transactions or to our placement agents in connection with the offering of convertible debentures and certain other subordinated notes as partial compensation for their services, (v) “senior secured notes” refers to our $63.0 million principal amount of senior secured notes issued in June 2005, (vi) all dollar amounts appearing in this prospectus are stated in U.S. dollars unless specifically noted in Canadian dollars (“CDN$”), and (vii) all financial data included in this prospectus has been prepared in accordance with generally accepted accounting principles in the United States. We have provided definitions for some of the natural gas and oil industry terms used in this prospectus in the “Glossary of Natural Gas and Oil Terms” on page A-1 of this prospectus.

 

Gastar Exploration Ltd.

 

Our Business

 

We are an independent energy company engaged in the exploration, development and production of natural gas and oil in the United States and Australia. Our principal business activities include the identification, acquisition, and subsequent exploration and development of natural gas and oil properties. Our emphasis is on prospective deep structures identified through seismic and other analytical techniques as well as unconventional natural gas reserves, such as coal bed methane. Our current areas for natural gas or oil activities are:

 

    Deep Bossier play in East Texas;

 

    Powder River Basin in Wyoming and Montana;

 

    Gunnedah Basin in New South Wales, Australia;

 

    Gippsland Basin in Victoria, Australia;

 

    Appalachian Basin in West Virginia;

 

    San Joaquin Basin in California; and

 

    Cherokee Basin in Southeast Kansas.

 

We currently are pursuing conventional natural gas exploration in the Deep Bossier play in the Hilltop area in East Texas and the Appalachian Basin in West Virginia. In exploring for conventional hydrocarbons, we utilize advanced geophysics and geologic technologies to identify high potential natural gas prospects. As of June 30, 2005, we had leases on approximately 53,100 gross acres (34,000 net) in Texas and approximately 26,700 gross acres (13,300 net) in Appalachia. For the six months ended June 30, 2005, our daily net production from the Hilltop area averaged approximately 6.9 MMcfed, and from the Appalachian Basin, it averaged 0.1 MMcfed.

 

In our coal bed methane, or CBM, projects, we use advanced technologies to assist us in developing commercial natural gas production from known coal beds. Our primary CBM properties are in the United States in the Powder River Basin and in the Gunnedah and Gippsland Basins of Australia. As of June 30, 2005, our

 

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acreage position in the Powder River Basin was approximately 56,800 gross acres (21,900 net), and our Australian acreage totaled approximately 3.4 million gross acres (2.0 million net). For the six months ended June 30, 2005, our average net daily production from our CBM properties in the Powder River Basin was approximately 1.9 MMcfed. Exploration and long term production testing on our Australian CBM properties is currently underway. Thus, we currently have no natural gas sales from our Australian CBM properties.

 

Our Strategy

 

Management believes that:

 

    Natural gas is an environmentally friendly fuel that will be increasingly valued in the United States and Australia;

 

    Conventional natural gas exploration exposes us to potentially large natural gas reserves and significant increases in shareholder value;

 

    CBM projects provide us with lower risk exposure to long-lived natural gas production and reserves;

 

    We have made a significant natural gas discovery in the Deep Bossier play in the Hilltop area of East Texas that will require additional exploration and development;

 

    We have the ability to assemble the technical and commercial resources needed to pursue these potential projects; and

 

    Our successful development of one or more large potential natural gas projects will create substantial shareholder value.

 

Based on these beliefs, we have pursued a strategy that includes:

 

    Accelerating exploration and development drilling on our Deep Bossier play in East Texas;

 

    Combining lower risk CBM projects, such as the Powder River Basin and Australia, with higher risk conventional natural gas exploration;

 

    Assembling a portfolio of high-potential natural gas exploration and development projects in East Texas and in the Appalachian Basin; and

 

    Limiting capital commitments and reducing risk by maintaining financial flexibility through accessing various sources of capital and monetizing certain assets through joint venture arrangements with industry participants.

 

Recent Developments

 

Issuance of Senior Secured Notes and Common Shares. On June 17, 2005, we completed the private placement of $63.0 million in principal amount of senior secured notes and 1,217,269 common shares. The notes bear interest at three month LIBOR plus 6% and mature on June 18, 2010. We also committed to issue to the purchasers of the notes, for no additional consideration, common shares in CDN$4.5 million increments on each of the six, twelve and eighteen-month anniversaries of the original note issuance date valued on a five-day weighted average trading price immediately prior to the date of issuance.

 

We have the right, exercisable quarterly during the period from August 17, 2005 to June 16, 2007, to require the original purchaser of the senior secured note to purchase additional notes in an amount limited to an aggregate of $20.0 million in principal, provided that we comply with certain financial and other covenants. If additional notes are issued, the purchasers will also be entitled to receive, for no additional consideration, additional common shares on similar terms as those issued with the original notes in a pro rata amount based on

 

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the additional principal amount of the notes. To issue these additional notes, we must meet certain requirements, including a minimum ratio of our present value discounted at 10%, based on prices specified in the senior secured notes, of proved plus probable reserves to net senior secured debt.

 

Geostar Acquisition. Concurrently with the private placement of senior secured notes, we closed the acquisition of additional leasehold and working interest properties from Geostar in the Hilltop area of East Texas and in the Powder River Basin of Wyoming and Montana. We paid a total of $68.5 million for the interests acquired from Geostar consisting of $30.5 million in cash, 1,650,133 common shares valued at CDN$4.50 per share and $32.0 million in unsecured subordinated notes maturing on January 31, 2006. The acquisition increased our working interest position in the Hilltop area to an average of over 90% and gave us operational control of the properties. The acquisition of additional Powder River Basin interests provides us with a larger interest in properties currently being developed through an existing joint venture. The Board of Directors retained a qualified, independent investment banking firm to render an opinion regarding the fairness of the Geostar acquisition. The investment banking firm provided the Board of Directors with their opinion that the Geostar acquisition was fair for Gastar’s shareholders from a financial perspective.

 

On August 11, 2005, we executed an agreement with Geostar whereby the Geostar $32.0 million unsecured subordinated note was cancelled. In conjunction with the note cancellation, we agreed to issue Geostar $17.0 million of our common shares issued at a value of CDN$3.25 and a new unsecured subordinated note for $15.0 million. The new Geostar note bears interest, payable monthly commencing February 15, 2006, at three-month LIBOR plus 4.5% and matures November 15, 2006. The note requires monthly principal payments of $1.5 million commencing February 15, 2006 and continuing for nine months thereafter with a final principal payment of $1.5 million due on November 15, 2006. We may elect to pay interest in kind through the issuance of additional notes with such notes maturing on January 15, 2007.

 

Common Share Placement. On June 30, 2005, we completed a private placement of 6,617,736 common shares at CDN$3.31 per share. The estimated net proceeds from this placement were $16.4 million (CDN$20.5 million), after deducting placement fees and expenses.

 

Corporate Information

 

We are a Canadian corporation that is subsisting under the Business Corporations Act (Alberta). Our principal office is located at 1331 Lamar Street, Suite 1080, Houston, Texas 77010, and our telephone number is (713) 739-1800. Our website address is http:// www.gastar.com . Information on our website or about us on any other website is not incorporated by reference into this prospectus and does not constitute a part of this prospectus.

 

We were originally incorporated in 1987 under the name CopperQuest Inc. pursuant to the Business Corporations Act (Ontario). On May 16, 2000, we continued from the Province of Ontario into the Province of Alberta to subsist pursuant to the Business Corporations Act (Alberta), changed our name to Gastar Exploration Ltd. and, pursuant to a reverse takeover, acquired 1075191 Ontario Ltd. and its resource property in Wyoming. Our common shares were quoted on the Canadian Dealing Network Inc. and its successor, the Canadian Venture Exchange, from June 5, 2000 until January 24, 2002 when our common shares began trading on The Toronto Stock Exchange under the symbol “YGA” (in the U.S., “YGA.TO”).

 

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THE OFFERING

 

Common shares to be offered by the selling shareholders shares

24,022,444

 

Use of proceeds

We will not receive any of the proceeds from the sale of the shares by the selling shareholders. All the proceeds from the sale of shares will be for the respective accounts of the selling shareholders.

 

Exchange listing

Our common shares are listed on the Toronto Stock Exchange under the symbol “YGA” (in the U.S., “YGA.TO”) and may be traded in the United States over-the-counter market under the symbol “GSREF.PK”.

 

This prospectus relates to the offer and sale, from time to time, of the common shares by selling shareholders. Pursuant to various agreements entered into in connection with the offering of our securities, we are required to register for resale certain of our common shares that are either now outstanding or will be issued upon exercise of certain warrants or conversion of our convertible debentures or common shares that we have issued, or committed to issue pursuant to subscription receipts. We are also offering the opportunity to participate in the registration statement to other holders of some of our restricted securities. Shares covered in the registration will include 7,835,005 outstanding common shares currently held by some holders and additional common shares to be issued in the future in connection with the following:

 

    The exercise of outstanding warrants to purchase 4,997,288 common shares;

 

    The conversion of our convertible debentures, which are convertible into 6,849,315 common shares; and

 

    The issuance of an estimated 4,340,836 common shares that we have committed to issue pursuant to subscription receipts on future dates for no additional consideration to purchasers of our senior secured notes.

 

For additional information about our warrants, see “Description of Capital Stock”. For additional information about our convertible debentures, our senior secured notes and the shares issuable in connection with our senior secured notes, see “Description of Indebtedness”.

 

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SUMMARY CONSOLIDATED FINANCIAL DATA

 

The following table presents summary historical financial data as of and for the periods indicated. The summary consolidated financial data as of and for the years ended December 31, 2004, 2003 and 2002 are derived from our audited consolidated financial statements. The summary consolidated financial data as of March 31, 2005 and for the three months ended March 31, 2005 and 2004 are derived from our unaudited consolidated financial statements.

 

Our unaudited consolidated financial statements include, in the opinion of management, all adjustments, consisting only of normal, recurring adjustments, that management considers necessary for a fair statement of the results of those periods. Our historical results are not necessarily indicative of results to be expected in any future period and the results for the three months ended March 31, 2005 should not be considered indicative of results expected for the full 2005 fiscal year.

 

You should read the following summary consolidated financial data in conjunction with our audited and unaudited consolidated financial statements and the accompanying notes included elsewhere in this prospectus and the sections of this prospectus entitled, “Selected Historical Financial and Operational Information” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations”.

 

    

As of and for the

Three Months Ended

March 31,


   

As of and for the

Years Ended

December 31,


 
     2005

    2004

    2004

    2003

    2002

 
     (Unaudited)                    
     (in thousands, except per share amounts)  
Consolidated Statement of Loss Data:                                         

Revenues

   $ 4,731     $ 356     $ 6,059     $ 1,461     $ 783  

Operating loss before interest expense

   $ (5,497 )   $ (242 )   $ (9,587 )   $ (2,368 )   $ (2,657 )

Net loss

   $ (7,636 )   $ (670 )   $ (12,776 )   $ (4,947 )   $ (4,599 )

Basic and diluted loss per share

   $ (0.07 )   $ (0.01 )   $ (0.12 )   $ (0.05 )   $ (0.05 )

Shares used in the calculation of basic and diluted loss per share

     113,788       107,265       111,374       104,958       98,618  
Consolidated Balance Sheet Data:                                         

Net natural gas and oil properties

   $ 63,363             $ 56,556     $ 35,791     $ 34,457  

Long term liabilities

   $ 60,096             $ 60,668     $ 3,992     $ 12,291  

Total shareholders’ equity

   $ 15,157             $ 21,976     $ 23,669     $ 22,430  
Production Data:                                         

Production:

                                        

Natural gas (MMcf)

     849       83       1,108       385       393  

Oil (MBbl)

     0.7       0.0       1.8       1.0       3.1  

Oil Natural gas equivalents (Mmcfe)

     853       83       1,119       391       412  

Natural gas (MMcfd)

     9.4       0.9       3.0       1.1       1.1  

Oil (MBod)

     0.0       0.0       0.0       0.0       0.0  

Oil Natural gas equivalents (Mmcfed)

     9.5       0.9       3.1       1.1       1.1  

Average Sales Prices:

                                        

Natural gas ($ per Mcf)

   $ 5.53     $ 3.47     $ 5.40     $ 3.72     $ 1.33  

Oil ($ per Bbl)

   $ 48.80     $ 31.13     $ 40.08     $ 27.89     $ 20.15  

 

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RISK FACTORS

 

In addition to the other information set forth elsewhere in this prospectus, you should carefully consider the following factors when evaluating Gastar. An investment in Gastar will be subject to risks inherent in our business. The trading price of the common shares of Gastar will be affected by the performance of our business relative to, among other things, competition, market conditions and general economic and industry conditions. The value of an investment in Gastar may decrease, resulting in a loss. Additional risks and uncertainties not currently known to us or that we currently consider immaterial may also materially and adversely affect our business. The risk factors listed below are not all inclusive.

 

Risks Related to our Business

 

Our success depends on the market price for natural gas and oil.

 

The success of our business greatly depends on market prices of natural gas and oil. The higher market prices are, the more likely it is that we will be financially successful. On the other hand, declines in natural gas or oil prices may materially adversely affect our financial condition, profitability and liquidity. Lower prices also may reduce the amount of natural gas or oil that we can produce economically.

 

Natural gas and oil are commodities whose prices are set by broad market forces. Historically, the natural gas and oil markets have been volatile. We do not see any reason why natural gas or oil prices will not continue to be volatile in the future. Prices for natural gas and oil are subject to wide fluctuations in response to relatively minor changes in the supply of and demand for natural gas or oil, market uncertainty and a variety of additional factors that are beyond our control. These factors include:

 

    The domestic and foreign supply of natural gas and oil;

 

    Overall economic conditions;

 

    Weather conditions;

 

    Political conditions in the Middle East and other oil producing regions;

 

    Domestic and foreign governmental regulations;

 

    The level of consumer product demand; and

 

    The price and availability of alternative fuels.

 

We cannot predict future natural gas or oil prices with any certainty. While rising demand for natural gas to fuel power generation and to meet increasingly stringent environmental requirements has led some observers to believe that long term demand for natural gas is increasing, there can be no assurance that this will be the case.

 

Our success depends on natural gas prices in the specific areas where we operate, and these prices may be lower than prices at major markets.

 

Even though overall natural gas prices at major markets, such as Henry Hub in Louisiana, may be high, regional natural gas prices may move somewhat independent of broad industry price trends. Because some of our operations are located outside major markets, we are directly impacted by regional natural gas prices regardless of Henry Hub or other major market pricing. For example, surplus natural gas supplies relative to available transportation in the Powder River Basin in 2002 caused local natural gas prices to be much less than national natural gas prices, and we, therefore, were unable to take advantage of those higher national natural gas prices. Low natural gas prices in any or all of the areas where we operate would negatively impact our business, financial condition and results of operations.

 

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Natural gas and oil reserves are depleting assets and the failure to replace our reserves would adversely affect our production and cash flows.

 

Our future natural gas and oil production depends on our success in finding or acquiring new reserves. If we fail to replace reserves, our level of production and cash flows would be adversely impacted. Production from natural gas and oil properties decline as reserves are depleted, with the rate of decline depending on reservoir characteristics. Our total proved reserves will decline as reserves are produced unless we conduct other successful exploration and development activities or acquire properties containing proved reserves, or both. Our ability to make the necessary capital investment to maintain or expand our asset base of natural gas and oil reserves would be impaired to the extent cash flow from operations is reduced and external sources of capital become limited or unavailable. We may not be successful in exploring for, developing or acquiring additional reserves. If we are not successful, our future production and revenues will be adversely affected.

 

Exploration is a high risk activity, and our participation in drilling activities may not be successful.

 

Our future success will largely depend on the success of our exploration drilling program. Participation in exploration drilling activities involves numerous risks, including the risk that no commercially productive natural gas or oil reservoirs will be discovered. The cost of drilling, completing and operating wells is often uncertain, and drilling operations may be curtailed, delayed or canceled as a result of a variety of factors, including:

 

    Unexpected drilling conditions;

 

    Blowouts, fires or explosions with resultant injury, death or environmental damage;

 

    Pressure or irregularities in formations;

 

    Equipment failures or accidents;

 

    Adverse weather conditions;

 

    Compliance with governmental requirements and laws, present and future; and

 

    Shortages or delays in the availability of drilling rigs and the delivery of equipment.

 

We use available seismic data to assist in the location of potential drilling sites. Even when properly used and interpreted, 2-D and 3-D seismic data and other visualization techniques are only tools used to assist geoscientists in identifying subsurface structures and hydrocarbon indicators. They do not allow the interpreter to know conclusively if hydrocarbons are present or economically producible. Poor results from our drilling activities would materially and adversely affect our future cash flows and results of operations. In addition, using seismic data and other advanced technologies involves substantial upfront costs and is more expensive than traditional drilling strategies, and we could incur losses as a result of these expenditures.

 

Our level of indebtedness reduces our financial and operational flexibility, and our level of indebtedness may increase.

 

As of June 30, 2005, the principal amount of our total indebtedness was $111.0 million. Our level of indebtedness affects our operations in several ways, including the following:

 

    A significant portion of our cash flow must be used to service our indebtedness;

 

    A high level of debt increases our vulnerability to general adverse economic and industry conditions;

 

    The covenants contained in the agreements governing our outstanding indebtedness limit our ability to borrow additional funds, dispose of assets, pay dividends, sell common shares below certain prices and make certain investments;

 

    Our debt covenants may also affect our flexibility in planning for, and reacting to, changes in the economy or in our industry;

 

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    A high level of debt may impair our ability to obtain additional financing in the future for working capital, capital expenditures, acquisitions or general corporate purposes; and

 

    A default under our senior loan covenants could result in required principal payments that we may not be able to meet, resulting in higher penalty interest rates and/or debt maturity acceleration.

 

We may incur additional debt, including significant additional secured indebtedness, in order to make future acquisitions or to develop our properties. A higher level of indebtedness increases the risk that we may default on our debt obligations. Our ability to meet our debt obligations and to reduce our level of indebtedness depends on our future performance. General economic conditions, natural gas and oil prices and financial, business and other factors affect our operations and our future performance. Many of these factors are beyond our control. We may not be able to generate sufficient cash flow to pay the interest on our debt and future working capital, borrowings or equity financing may not be available to pay or refinance such debt. Factors that will affect our ability to raise cash through an offering of our capital stock or a refinancing of our debt include financial market conditions, the value of our assets and our performance at the time we need capital.

 

If we are unable to raise substantial amounts of additional capital, we may not be able to maximize our business plan.

 

In order to maximize our business plan, we will need to raise substantial amounts of new capital. If we experience difficulties in raising equity or debt capital, we may be required to scale back our business plan by limiting acquisitions and our drilling and development program. Restrictions imposed under our senior secured notes may limit our ability to borrow additional funds.

 

Reserve estimates depend on many assumptions that may turn out to be inaccurate. Any material inaccuracies in these reserve estimates or underlying assumptions could materially affect the quantities and present values of our reserves.

 

The process of estimating natural gas and oil reserves is complex. It requires interpretations of available technical data and various assumptions, including assumptions relating to economic factors. Any significant inaccuracies in these interpretations or assumptions could materially affect the estimated quantities and present value of reserves.

 

There are many uncertainties inherent in estimating natural gas and oil reserves and their values, many of which are beyond our control. Reservoir engineering is a subjective process of estimating underground accumulations of natural gas or oil that cannot be measured in an exact manner. Estimates of economically recoverable natural gas or oil reserves and of future net cash flows necessarily depend on many variables and assumptions, such as:

 

    Historical natural gas or oil production from that area, compared with production from other producing areas;

 

    The assumed effects of regulations by governmental agencies;

 

    Assumptions concerning future prices;

 

    Assumptions concerning future operating costs;

 

    Assumptions concerning severance and excise taxes; and

 

    Assumptions concerning development costs and workover and remedial costs.

 

Any of these assumptions could vary considerably from actual results. For these reasons, estimates of the economically recoverable quantities of natural gas or oil attributable to any particular group of properties, classifications of those reserves based on risk recovery and estimates of the future net cash flows expected from them prepared by different engineers, or by the same engineer at different times, may vary substantially. Because of this, our reserve estimates may materially change at any time.

 

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Index to Financial Statements

You should not consider the present values of estimated future net cash flows referred to in this prospectus to be the current market value of the estimated reserves attributable to our properties. The estimated discounted future net cash flows from proved reserves are generally based on prices and costs in effect when the estimate is made. However, actual future prices and costs may be materially higher or lower. Actual future net cash flows also will be affected by factors such as:

 

    The amount and timing of actual production, supply and demand for natural gas or oil;

 

    Curtailments or increases in consumption by natural gas or oil purchasers;

 

    Changes in governmental regulations or taxation; and

 

    The timing of both production and expenses in connection with the development and production of natural gas or oil properties.

 

In this prospectus, the net present value of future net revenues is calculated using a 10% discount rate. This rate is not necessarily the most appropriate discount factor based on interest rates in effect from time to time and risks associated with our reserves or the natural gas and oil industry in general.

 

We rely on the accuracy of the estimates in the reservoir engineering reports provided to us by our outside engineers, and if they prove to be inaccurate, our future financial performance and results of operations may be adversely affected.

 

We have no in house reservoir engineering capability, and therefore rely on the accuracy of the periodic reservoir reports provided to use by our outside reservoir engineers. If those reports prove to be inaccurate, a revision of reserves may result in further write downs in the carrying value of our natural gas and oil properties. Inaccurate estimates may also significantly impact our operational planning. Further, we use the reports of our independent reservoir engineers in our financial planning. If the reports of the outside reservoir engineers prove to be inaccurate, we may make misjudgments in our financial planning.

 

The imprecise nature of estimating proved natural gas and oil reserves, future downward revisions of proved reserves and increased drilling expenditures without current additions to proved reserves may lead to write downs in the carrying value of our natural gas and oil properties.

 

Due to the imprecise nature of estimating natural gas and oil reserves as well as the potential volatility in natural gas and oil prices and their effect on the carrying value of our natural gas and oil properties, there can be no assurance that write downs in the future will not be required as a result of factors that may negatively affect the present value of proved natural gas and oil reserves. These factors can include volatile natural gas and oil prices, downward revisions in estimated proved natural gas and oil reserve quantities, limited classification of proved reserves associated with successful wells and unsuccessful drilling activities.

 

Deficiencies of title to our leased interests could result in significant losses.

 

Our practice in acquiring exploration leases or undivided interests in natural gas and oil leases is not to incur the expense of retaining lawyers to examine the title to the mineral interest prior to executing the lease. Instead, we rely upon the judgment of lease brokers and others to perform the field work in examining records in the appropriate governmental or county clerk’s office before leasing a specific mineral interest. This practice is widely followed in the industry. Prior to the drilling of an exploration well the operator of the well will typically obtain a preliminary title review of the drillsite lease and/or spacing unit within which the proposed well is to be drilled to identify any obvious deficiencies in title to the well and, if there are deficiencies, to identify measures necessary to cure those defects to the extent reasonably possible. We have no assurance, however, that any such deficiencies have been cured by the operator of any such wells. It does happen, from time to time, that the examination made by the title lawyers reveals that the lease or leases are invalid, having been purchased in error from a person who is not the rightful owner of the mineral interest desired. In these circumstances, we may not be able to proceed with our exploration and development of the lease site or may incur costs to remedy a defect.

 

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Index to Financial Statements

We may experience shortages of equipment and personnel, which could significantly disrupt or delay our operations.

 

From time to time, there has been a general shortage of drilling rigs, equipment, supplies and oilfield services in North America and Australia, which we believe may intensify because of current increased industry activity. In addition, the costs and delivery times of rigs, equipment and supplies have risen. Shortages of drilling rigs, equipment, supplies or trained personnel could delay and adversely affect our operations and drilling plans, which could have an adverse effect on our business. While we intend to enter into contracts for the services of drilling rigs in North America and Australia, we may not be successful in doing so.

 

The demand for, and wage rates of, qualified rig crews have begun to rise in the drilling industry due to the increasing number of active rigs in service. Personnel shortages have occurred in the past during times of increasing demand for drilling services. If the number of active drilling rigs increases, we may experience shortages of qualified personnel to operate our drilling rigs, which could delay our drilling operations and adversely affect our business.

 

We are subject to complex laws and regulations, including environmental laws and regulations that can adversely affect the cost, manner or feasibility of conducting our business.

 

Our exploration and production interests and operations are subject to stringent and complex federal, state and local laws and regulations governing the operation and maintenance of our facilities and the handling and discharge of substances into the environment. These existing laws and regulations impose numerous obligations that are applicable to our interests and operations including:

 

    Air and water discharge permits for drilling and production operations;

 

    Drilling and abandonment bonds or other financial responsibility assurances;

 

    Reports concerning operations;

 

    Spacing of wells;

 

    Access to properties, particularly in the Powder River Basin;

 

    Taxation; and

 

    Other regulatory controls on operating activities.

 

In addition, regulatory agencies have from time to time imposed price controls and limitations on production by restricting the flow rate of wells below actual production capacity in order to conserve supplies of natural gas and oil.

 

Failure to comply with environmental and other laws and regulations applicable to our interests and operations could result in the assessment of administrative, civil, and criminal penalties, the imposition of remedial requirements, and the issuance of orders enjoining or limiting future operations; any of which could have a material adverse affect on us. Legal requirements are sometimes unclear and are frequently changed in response to economic or political conditions. As a result, it is hard to predict the ultimate cost of compliance with these requirements or their affect on our interests and operations. In addition, there can be no assurance that existing laws or regulations, as currently interpreted or reinterpreted in the future, or future laws or regulations will not have a material adverse affect on our business.

 

The production, handling, storage, transportation and disposal of natural gas and oil, by-products of natural gas and oil and other substances produced or used in connection with natural gas and oil production operations are regulated by laws and regulations focused on the protection of human health and the environment. Consequently, the discharge or release of natural gas, oil or other substances into the air, soil or water could subject us to liabilities arising from environmental cleanup and restoration costs, claims made by neighboring

 

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Index to Financial Statements

landowners and other third parties for personal injury and property damage, and fines or penalties for related violations of environmental laws or regulations. Moreover, the possibility exists that stricter laws, regulations or enforcement policies could significantly increase our compliance costs and the cost of any remediation that may become necessary. We may not be able to recover some or any of these costs from insurance.

 

Our Australian operations are subject to unique risks relating to Aboriginal land claims and government licenses.

 

Our Australian operations could be affected by native title claims by Aboriginal groups. Australian law recognizes that in some instances native title, that is the laws and customs of the Aboriginal inhabitants, has survived European settlement. Native title will only survive if it has not been extinguished. Native title may be extinguished by an Act of Government, such as the creation of a title that is inconsistent with native title. This may include a grant of the right to exclusive possession through freehold title or lease. Native title may also be extinguished if the connection between the land and the group of Aboriginal people claiming native title has been lost. Each authority to prospect, and license in areas in which we desire to engage in exploration or production activities must be examined individually in order to determine the validity of any native title claim. We may be required to negotiate with any Aborigines who can make a valid claim to having ancestral ties to the areas in which we desire to engage in exploration or production activities. These negotiations could both delay the timing of our exploration or production activities, as well as add an additional layer of cost or a requirement to share revenues if any Aboriginal claimants are proved to have native title rights in the exploration areas.

 

The process of drilling for and producing natural gas and oil involves many operating risks that can cause substantial losses, and we may not have enough insurance to cover these risks adequately.

 

The natural gas and oil business involves many operating hazards, such as:

 

    Well blowouts, fires and explosions;

 

    Surface craterings and casing collapses;

 

    Uncontrollable flows of natural gas, oil or well fluids;

 

    Pipe and cement failures;

 

    Formations with abnormal pressures;

 

    Stuck drilling and service tools;

 

    Pipeline ruptures or spills;

 

    Natural disasters; and

 

    Releases of toxic natural gas.

 

Any of these events could cause substantial losses to us as a result of:

 

    Injury or death;

 

    Damage to and destruction of property, natural resources and equipment;

 

    Pollution and other environmental damage;

 

    Regulatory investigations and penalties;

 

    Suspension of operations; and

 

    Repair and remediation costs.

 

We could also be responsible for environmental damage caused by previous owners of property that we purchase or lease. As a result, we may incur substantial liabilities to third parties or governmental entities. See

 

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Index to Financial Statements

“Business—Governmental Regulation” and “Business—Environmental Regulation”. Although we maintain what we believe is appropriate and customary insurance for these risks, the insurance may not be available or sufficient to cover all of these liabilities. If these liabilities are not covered by our insurance, paying them could reduce or eliminate the funds available for exploration, development or acquisitions or result in the loss of our properties.

 

Our ability to market our natural gas and oil may be impaired by capacity constraints on the gathering systems and pipelines that transport our natural gas and oil.

 

The availability of a ready market for our natural gas production depends on the proximity of our reserves to and the capacity of natural gas gathering systems, pipelines and trucking or terminal facilities. We enter into agreements with companies that own pipelines used to transport natural gas from the wellhead to contract destination. Those pipelines are limited in size and volume of natural gas flow. Should production begin, other outstanding contracts with other producers and developers could interfere with our access to a natural gas line to deliver natural gas to the market. We do not own or operate any natural gas lines or distribution facilities. Further, interstate transportation and distribution of natural gas is regulated by the federal government through the Federal Energy Regulatory Commission, or FERC. FERC sets rules and carries out administratively the oversight of interstate markets for natural gas and other energy policy. Among FERC’s powers is the ability to dictate sale and delivery of natural gas to any markets it oversees.

 

Additionally, state regulators have vast powers over sale, supply and delivery of natural gas and oil within their state borders. While we do employ certain companies to represent our interests before state regulatory agencies, there can be no assurance that our interests will receive favorable rulings from any state agency, or that some future occurrence will not drastically alter our ability to enter into contracts or deliver natural gas to the market.

 

Competition in the natural gas and oil industry is intense, and we are smaller and have a more limited operating history than most of our competitors.

 

We operate in a highly competitive environment. We compete with other natural gas and oil companies in all areas of our operations, including the acquisition of exploratory prospects and proven properties. Our competitors include major integrated natural gas and oil companies, numerous independent natural gas and oil companies, individuals and drilling and income programs. Many of our competitors are large, well-established companies that have substantially larger operating staffs and greater capital resources than we do and that, in many instances, have been engaged in the natural gas and oil business for a much longer time than we have. These companies may be able to pay more for exploratory prospects and productive natural gas and oil properties and may be able to define, evaluate, bid for and purchase more properties and prospects than our financial and human resources permit. In addition, these companies may be able to spend more on the existing and changing technologies that we believe are and will be increasingly important to the current and future success of natural gas and oil companies. Our ability to explore for natural gas and oil prospects and to acquire additional properties in the future will depend on our ability to conduct our operations, to evaluate and select suitable properties and to consummate transactions in this highly competitive environment.

 

Acquisition prospects are difficult to assess and may pose additional risks to our operations.

 

Where appropriate, we may evaluate and pursue acquisition opportunities on terms our management considers favorable. In particular, we expect to pursue acquisitions that have the potential to economically increase our natural gas and oil reserves. The successful acquisition of natural gas and oil properties requires an assessment of:

 

    Recoverable reserves;

 

    Exploration potential;

 

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Index to Financial Statements
    Future natural gas and oil prices;

 

    Operating costs;

 

    Potential environmental and other liabilities; and

 

    Permitting and other environmental authorizations required for our operations.

 

In connection with such an assessment, we would expect to perform a review of the subject properties that we believe to be generally consistent with industry practices. Nonetheless, the resulting conclusions are inexact and their accuracy inherently uncertain, and such an assessment may not reveal all existing or potential problems, nor will it necessarily permit a buyer to become sufficiently familiar with the properties to fully assess their merits and deficiencies. Inspections may not always be performed on every platform or well, and structural and environmental problems are not necessarily observable even when an inspection is undertaken.

 

Future acquisitions could pose additional risks to our operations and financial results, including:

 

    Problems integrating the purchased operations, personnel or technologies;

 

    Unanticipated costs;

 

    Diversion of resources and management attention from our exploration business;

 

    Entry into regions or markets in which we have limited or no prior experience; and

 

    Potential loss of key employees, particularly those of the acquired organization.

 

We cannot control the activities on properties we do not operate, which may affect the timing and success of our future operations.

 

Other companies operate some of the properties in which we have an interest. As a result, we have a limited ability to exercise influence over operations for these properties or their associated costs. Our dependence on the operator and other working interest owners for these projects and our limited ability to influence operations and associated costs could materially adversely affect the realization of our targeted returns on capital in drilling or acquisition activities. The success and timing of our drilling and development activities on properties operated by others therefore depend upon a number of factors that are outside of our control, including:

 

    Timing and amount of capital expenditures;

 

    The operator’s expertise and financial resources;

 

    Approval of other participants in drilling wells; and

 

    Selection of technology.

 

Technological changes could affect our operations.

 

The natural gas and oil industry is characterized by rapid and significant technological advancements and introductions of new products and services utilizing new technologies. As others use or develop new technologies, we may be placed at a competitive disadvantage, and competitive pressures may force us to implement such new technologies at substantial costs. In addition, other natural gas and oil companies have greater financial, technical and personnel resources that may allow them to enjoy technological advantages and may in the future allow them to implement new technologies before we can. We may be unable to respond to such competitive pressures and implement such technologies on a timely basis or at an acceptable cost. One or more of the technologies that we currently use or may implement in the future may become obsolete.

 

Rapid growth could result in a strain on our resources.

 

Because of our size, our growth, if achieved, will likely place a significant strain on our financial, technical, operational and management resources. The failure to continue to upgrade our technical, administrative,

 

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Index to Financial Statements

operating and financial control systems or the occurrence of unexpected expansion difficulties, including the recruitment and retention of experienced managers, geoscientists and engineers, could have a material adverse effect on our business, financial condition and results of operations and our ability to timely execute our business plan.

 

Our ability to successfully execute our business plan is dependent on our ability to obtain adequate financing.

 

Our business plan, which includes participation in 3-D seismic shoots, the drilling of exploration prospects and development projects and producing property acquisitions, has required and will continue to require substantial capital expenditures. We may require additional financing to fund our planned growth. Our ability to raise additional capital will depend on the results of our operations and the status of various capital and industry markets at the time we seek such capital. Accordingly, we cannot be certain that additional financing will be available to us on acceptable terms, if at all. In particular, the terms of our senior secured notes limit our ability to incur additional indebtedness. In the event additional capital resources are unavailable, we may be required to curtail our exploration and development activities or be forced to sell some of our assets in an untimely fashion or on less than favorable terms.

 

Not hedging our production may result in losses.

 

We currently do not hedge our natural gas and oil production. By not hedging our production, we may be more adversely affected by declines in natural gas and oil prices than our competitors who engage in hedging arrangements. Further, should we elect to hedge in the future, such hedges may result in us receiving lower than current prevailing market prices and place additional financial strains on us due to having to post margin calls on our hedges.

 

Exchange rate fluctuations subject us to unique risks.

 

As our Australian activities increase, we will be increasingly exposed to the impact of fluctuations in the exchange rate between the Australian dollar and the U.S. dollar. We have only minimal exposure to Canadian currency fluctuations, as almost all of our current revenues and expenses are in U.S. dollars.

 

We depend on our key personnel, the loss of which could adversely affect our operations and financial performance.

 

We depend to a large extent on the services of a limited number of senior management personnel and directors. The loss of the services of these individuals could negatively impact our future operation. We have employment contracts with certain members of our senior management team; although, we do not maintain key-man life insurance on any of our senior management. We believe that our success is also dependent on our ability to continue to retain the services of skilled technical personnel. Our inability to retain skilled technical personnel could have a material adverse effect on our business.

 

Geostar Corporation is a major shareholder and is in a position to significantly influence the activities and operations of certain jointly owned properties, which also could result in conflicts of interest.

 

As of August 1, 2005, Geostar owned approximately 9.8% of our outstanding common shares. As a result, Geostar is in a position to heavily influence the outcome of matters requiring a shareholder vote, including the election of directors, the adoption or amendment of provisions in our Articles of Incorporation and Bylaws and the approval of mergers and other significant corporate transactions. Geostar’s high level of ownership may also delay, defer or prevent a change in control of us and may adversely affect the voting and other rights of other shareholders.

 

The chairman of our board of directors is also a director and chief executive officer of Geostar. In accordance with the laws of Alberta, our directors are required to act honestly and in good faith with a view to

 

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Index to Financial Statements

our best interests. The Geostar director on our board of directors also has fiduciary duties to manage Geostar, including its investments in companies such as us, in a manner beneficial to Geostar and its shareholders. In some circumstances, these duties may conflict with his duties as a director of Gastar. Addressing matters, such as board of director conflicts, are subject to the procedures and remedies as provided under the Business Corporations Act (Alberta). See “Description of Capital Stock—Board of Directors; Election and Removal of Directors”.

 

Geostar and its other subsidiaries are also engaged in the natural gas and oil business. Although we have entered into the Participating and Operating Agreement, or POA, with Geostar dated 2001, it is possible that we may in some circumstances be in direct or indirect competition with Geostar, including competition with respect to certain business strategies and transactions that we may propose to undertake. There can be no assurance that these conflicts of interest will not materially adversely affect us.

 

Some of our directors may not be subject to suit in the United States.

 

Three of our directors reside in Canada. As a result, it may be difficult or impossible to effect service of process within the United States upon those directors, to bring suit against them in the United States or to enforce in the United States courts any judgment obtained there against them predicated upon any civil liability provisions of the United States federal securities laws.

 

Risks Related to this Offering

 

There is a limited public market for our common shares.

 

Although our common shares have been listed on The Toronto Stock Exchange since January 2002, they are thinly traded. As a result, a trade involving a large number of common shares could have an exaggerated effect on the reported market price of our common shares. A holder of our common shares may not be able to liquidate his or her investment in a short time period or at the market prices that currently exist at the time the holder decides to sell. The purchase and sale of relatively small common share positions may result in disproportionately large increases or decreases in the price of our common shares.

 

Our common share price has been and is likely to continue to be highly volatile.

 

The trading price of our common shares are subject to wide fluctuations in response to a variety of factors, including quarterly variations in operating results, announcements of drilling and rig activity, economic conditions in the natural gas and oil industry, general economic conditions or other events or factors that our beyond our control. See “Price Range of Common Shares”.

 

In addition, the stock market in general and the market for natural gas and oil exploration companies in particular have experienced extreme price and volume fluctuations that have often been unrelated or disproportionate to the operating results or asset values of those companies. These broad market and industry factors may seriously impact the market price and trading volume of our common shares regardless of our actual operating performance. In the past, following periods of volatility in the overall market and in the market price of a company’s securities, securities class action litigation has been instituted against these companies. If this type of litigation were instituted against us following a period of volatility in our common shares trading price, it could result in substantial costs and a diversion of our management’s attention and resources, which could have a materially adverse impact on our operations.

 

Future issuances of our common shares may adversely affect the price of our common shares.

 

The future issuance of a substantial number of common shares into the public market, or the perception that such issuance could occur, could adversely affect the prevailing market price of our common shares. A decline in the price of our common shares could make it more difficult to raise funds through future offerings of our

 

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Index to Financial Statements

common shares or securities convertible into common shares. Following the effectiveness of the registration statement to which this prospectus is a part, we believe that substantially all of our outstanding common shares, our common shares that are issued in the future upon the exercise of outstanding options and the common shares issued upon conversion and exercise of the convertible debentures and warrants or additional common shares required to be issued under subscription receipts will be tradable under the U.S. federal securities laws.

 

Issuance of the common shares upon exercise of warrants and conversion of convertible debentures, together with additional issuances of common shares to purchasers of our senior secured notes for no additional consideration, will dilute the ownership interest of existing shareholders and could adversely affect the market price of our common shares.

 

We are obligated to issue a substantial number of common shares upon exercise of outstanding common share purchase warrants and upon conversion of our convertible debentures. We are also committed to issue on each of three dates during the next eighteen months additional common shares equal in value to CDN$4.5 million, based upon then current market prices. These issuances will dilute the ownership interest of existing shareholders. Any sales in the public market of the common shares issuable upon such exercise of warrants, conversion, or issuance of additional common shares could adversely affect prevailing market prices of our common shares. In addition, the existence of these warrants and convertible debentures may encourage short selling by market participants.

 

If we are unable to meet the Securities and Exchange Commission’s requirements related to the assessment, attestation and effectiveness of our internal controls, we may suffer a loss of investor confidence and the price of our common shares may be adversely affected.

 

Under the Exchange Act, we will be required to include in our annual report a report on internal controls. This report must state management’s responsibility for establishing and maintaining an adequate internal control structure and procedures for financial reporting. The report must also contain an assessment as of the end of the year of the effectiveness of those internal controls. The Exchange Act also requires our registered public accounting firm to test and report on the assessment made by management. Assuming effectiveness of this prospectus during the year 2005, these new rules are effective for us for the year ending December 31, 2006. In order to meet these requirements, we must document and test the effectiveness of our internal controls and then allow time for our registered public accounting firm to audit our internal control structure. The amount of work required by us to prepare, maintain and test our internal control structure could be extensive. In the event that management is unable to complete its assessment of the effectiveness of our internal controls over financial reporting or our auditors are unable to attest to management’s assessment or do their own assessment, or if these internal controls are not effective, we might experience an adverse reaction in the financial marketplace due to a loss of investor confidence in the reliability of our financial statements, which could negatively impact the market price of our common shares.

 

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Index to Financial Statements

CAUTIONARY STATEMENTS REGARDING FORWARD-LOOKING STATEMENTS

 

Some of the information included in this prospectus contains “forward-looking statements”. These statements can be identified by the use of forward-looking words, including “may”, “expect”, “anticipate”, “plan”, “project”, “believe”, “estimate”, “intend”, “will”, “should” or other similar words. Forward-looking statements may include statements that relate to, among other things:

 

    Our financial position;

 

    Business strategy and budgets;

 

    Anticipated capital expenditures;

 

    Drilling of wells;

 

    Natural gas and oil reserves;

 

    Timing and amount of future production of natural gas and oil;

 

    Operating costs and other expenses;

 

    Cash flow and anticipated liquidity;

 

    Prospect development; and

 

    Property acquisitions and sales.

 

Although we believe the expectations reflected in such forward-looking statements are reasonable, we cannot assure you that such expectations will occur. These forward-looking statements involve known and unknown risks, uncertainties and other factors that may cause our actual results, performance or achievements to be materially different from actual future results expressed or implied by the forward-looking statements. These factors include among others:

 

    Low and/or declining prices for natural gas and oil;

 

    Natural gas and oil price volatility;

 

    The risks associated with exploration, including cost overruns and the drilling of non-economic wells or dry holes;

 

    Ability to raise capital to fund capital expenditures;

 

    The ability to find, acquire, market, develop and produce new natural gas and oil properties;

 

    Uncertainties in the estimation of proved reserves and in the projection of future rates of production and timing of development expenditures;

 

    Operating hazards attendant to the natural gas and oil business;

 

    Downhole drilling and completion risks that are generally not recoverable from third parties or insurance;

 

    Potential mechanical failure or under-performance of significant wells or pipeline mishaps;

 

    Weather conditions;

 

    Availability and cost of material and equipment;

 

    Delays in anticipated start-up dates;

 

    Actions or inactions of third-party operators of our properties;

 

    Ability to find and retain skilled personnel;

 

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    Strength and financial resources of competitors;

 

    Federal and state regulatory developments and approvals;

 

    Environmental risks;

 

    Worldwide economic conditions; and

 

    Operational and financial risks associated with foreign exploration and production.

 

You should not unduly rely on these forward-looking statements in this prospectus, as they speak only as of the date of this prospectus. Except as required by law, we undertake no obligation to publicly release any revisions to these forward-looking statements to reflect events or circumstances occurring after the date of this prospectus or to reflect the occurrence of unanticipated events. See the information under the heading “Risk Factors” in this prospectus for some of the important factors that could affect our financial performance or could cause actual results to differ materially from estimates contained in forward-looking statements.

 

USE OF PROCEEDS

 

We will not receive any of the proceeds from the sale of the common shares by the selling shareholders under this prospectus. All proceeds from the sale of those shares will be for the respective accounts of the selling shareholders.

 

PRICE RANGE OF COMMON SHARES

 

Our common shares are listed on The Toronto Stock Exchange under the symbol “YGA” and may be traded on the OTC Bulletin Board under the symbol “GSREF.PK”. Our common shares are not listed on any U.S. or other stock exchange or quoted in any U.S. or other quotation system. The following table sets forth the high and low sale prices of our common shares as reported on The Toronto Stock Exchange (CDN$) and as quoted in the United States in the “pink sheets” over-the-counter market for the periods presented. The prices in the table below have been adjusted for stock splits.

 

     Toronto Stock Exchange

   OTC Bulletin Board

     High

   Low

   High

   Low

2005

                           

Third Quarter (through August 1, 2005)

   CDN$ 3.72    CDN$ 2.88    $ 3.15    $ 2.40

Second Quarter

   CDN$ 4.48    CDN$ 3.38    $ 3.85    $ 2.74

First Quarter

   CDN$ 4.95    CDN$ 3.64    $ 3.92    $ 3.02

2004

                           

Fourth Quarter

   CDN$ 5.50    CDN$ 3.65    $ 4.24    $ 3.00

Third Quarter

   CDN$ 4.50    CDN$ 3.28    $ 3.52    $ 2.11

Second Quarter

   CDN$ 4.35    CDN$ 3.40    $ 3.17    $ 2.61

First Quarter

   CDN$ 4.50    CDN$ 2.40    $ 3.19    $ 1.87

2003

                           

Fourth Quarter

   CDN$ 2.65    CDN$ 2.30    $ 1.98    $ 1.70

Third Quarter

   CDN$ 2.53    CDN$ 2.00    $ 1.87    $ 1.41

Second Quarter

   CDN$ 2.24    CDN$ 1.98    $ 1.58    $ 1.39

First Quarter

   CDN$ 2.32    CDN$ 1.95    $ 1.55    $ 1.36

 

As of August 1, 2005, there were 445 holders of record of our common shares. The last reported sale prices of our common shares on The Toronto Stock Exchange and as quoted in the United States in the “pink sheets” over-the-counter market on August 1, 2005 were CDN$3.30 and $2.68, respectively.

 

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As of August 1, 2005, 17,329,600 common shares were subject to outstanding stock options granted under our 2002 Stock Option Plan, 11,705,850 shares of which are vested but have not been exercised, and 4,997,288 common shares were subject to outstanding warrants, all of which shares were exercisable as of such date. As of August 1, 2005, we had outstanding $30.0 million in principal amount of convertible debentures. The convertible debentures are convertible at the option of the holders into an aggregate of 6,849,315 common shares.

 

As of August 1, 2005, 1,650,133 common shares were eligible for resale pursuant to Rule 144 under the Securities Act, excluding the shares covered by this prospectus. Pursuant to the indenture governing the convertible debentures and the terms of the certain warrants, we have agreed to register for resale the 6,849,315 common shares issuable upon the conversion of our convertible debentures and the 2,759,740 common shares issuable upon exercise of the placement agent warrants, all of which shares are covered by this prospectus. Pursuant to the terms of our senior secured notes, we have agreed to register for resale the 1,217,269 common shares issued or issuable in connection with the sale of our senior secured notes, all of which are covered by this prospectus, plus up to an estimated 4,340,836 additional common shares to be issued pursuant to subscription rights at various dates pursuant to the terms of the original sale of the registrant’s senior secured notes.

 

DIVIDEND HISTORY

 

We have never declared or paid any cash dividends on our common shares. We anticipate that we will retain any future earnings, if any, to satisfy our operational and other cash needs and do not anticipate paying any cash dividends on our common shares in the foreseeable future. In addition, our current senior secured notes prohibit us from paying cash dividends as long as such debt remains outstanding.

 

Pursuant to the provisions of the Business Corporations Act (Alberta), we are prohibited from declaring or paying a dividend if there are reasonable grounds for believing that (1) we are, or would after the payment be, unable to pay our liabilities as they become due or (2) the realizable value of our assets would thereby be less than the aggregate of our liabilities and stated capital of all classes.

 

For a discussion of Canadian laws, decrees and regulations that restrict the import or export of capital, affect the remittance of dividends or other payments to non-resident holders of our common shares, or relate to taxes, including withholding provisions, to which U.S. holders of our common shares are subject, as well as pertinent provisions of the tax treaty between Canada and the United States, please see “Material Income Tax Consequences”.

 

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SELECTED HISTORICAL FINANCIAL AND OPERATIONAL INFORMATION

 

The following table presents selected historical financial and operational information as of and for the periods indicated. The selected consolidated financial data as of and for the years ended December 31, 2004, 2003, 2002, 2001 and 2000 are derived from our audited consolidated financial statements. The selected consolidated financial data as of March 31, 2005 and for the three months ended March 31, 2005 and 2004 are derived from our unaudited consolidated financial statements. On May 16, 2000, we changed our name to Gastar Exploration Ltd. and began our natural gas and oil operations. Prior to May 16, 2000, we engaged in limited minerals exploration activities under the name CopperQuest Inc.

 

Our unaudited consolidated financial statements include, in the opinion of management, all adjustments, consisting only of normal, recurring adjustments, that management considers necessary for a fair statement of the results of those periods. Our historical results are not necessarily indicative of results to be expected in any future period and the results for the three months ended March 31, 2005 should not be considered indicative of results expected for the full 2005 fiscal year.

 

You should read the following selected consolidated financial and operational information in conjunction with our audited and unaudited consolidated financial statements and the accompanying notes included elsewhere in this prospectus and the section of this prospectus entitled, “Management’s Discussion and Analysis of Financial Condition and Results of Operations”.

 

   

As of and for the

Three Months Ended
March 31,


    As of and for the Years Ended December 31,

 
    2005

    2004

    2004

    2003

    2002

    2001

    2000

 
    (Unaudited)                                
    (in thousands, except per share amounts)  

Consolidated Statement of Loss Data:

                                                       

Revenues

  $ 4,731     $ 356     $ 6,059     $ 1,461     $ 783     $ 228     $ —    

Depletion, depreciation and amortization

  $ 2,690     $ 176     $ 3,233     $ 572     $ 360     $ 67     $ —    

Impairment of natural gas and oil properties

  $ 4,410     $ —       $ 6,306     $ 552     $ 377     $ 3,960     $ 127  

Lease operating, transportation and selling

  $ 1,315     $ 211     $ 2,000     $ 712     $ 769     $ 138     $ —    

General and administrative expense

  $ 1,765     $ 167     $ 4,023     $ 1,909     $ 1,933     $ 1,008     $ 198  

Operating loss before interest expense

  $ (5,497 )   $ (242 )   $ (9,587 )   $ (2,368 )   $ (2,657 )   $ (4,960 )   $ (382 )

Net loss

  $ (7,636 )   $ (670 )   $ (12,776 )   $ (4,947 )   $ (4,599 )   $ (4,793 )   $ (382 )

Basic and diluted loss per share

  $ (0.07 )   $ (0.01 )   $ (0.12 )   $ (0.05 )   $ (0.05 )   $ (0.05 )   $ (0.0 )

Shares used in the calculation of basic and diluted loss per share

    113,788       107,265       111,374       104,958       98,618       94,648       80,435  

Consolidated Balance Sheet Data:

                                                       

Net natural gas and oil properties

  $ 63,363             $ 56,556     $ 35,791     $ 34,457     $ 23,069     $ 8,411  

Long term liabilities

  $ 60,096             $ 60,668     $ 3,992     $ 12,291     $ 1,877     $ —    

Total shareholders’ equity

  $ 15,157             $ 21,976     $ 23,669     $ 22,430     $ 17,656     $ 18,180  

Production Data (1):

                                                       

Production:

                                                       

Natural gas (MMcf)

    849.0       83.3       1,108.0       385.0       393.2       81.7       —    

Oil (MBbl)

    0.7       0.0       1.8       1.0       3.1       2.8       —    

Oil Natural gas equivalents (Mmcfe)

    853.2       83.4       1,118.8       391.0       411.6       98.5       —    

Natural gas (MMcfd)

    9.4       0.9       3.0       1.1       1.1       0.2       —    

Oil (MBod)

    0.0       0.0       0.0       0.0       0.0       0.0       —    

Oil Natural gas equivalents (Mmcfed)

    9.5       0.9       3.1       1.1       1.1       0.3       —    

Average Sales Prices:

                                                       

Natural gas (per Mcf)

  $ 5.53     $ 3.47     $ 5.40     $ 3.72     $ 1.33     $ 1.83     $ —    

Oil (per Bbl)

  $ 48.80     $ 31.13     $ 40.08     $ 27.89     $ 20.15     $ 20.55     $ —    

(1) There was no reportable production of natural gas and oil prior to 2001.

 

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MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION

AND RESULTS OF OPERATIONS

 

The following discussion and analysis should be read in conjunction with accompanying financial statements and related notes included elsewhere in this prospectus. It contains forward looking statements that reflect our future plans, estimates, beliefs and expected performance. The forward looking statements are dependent upon events, risks and uncertainties that may be outside our control. Our actual results could differ materially from those discussed in these forward looking statements. Factors that could cause or contribute to such differences include, but are not limited to, market prices for natural gas and oil, economic and competitive conditions, regulatory changes, estimates of proved reserves, potential failure to achieve production from development projects, capital expenditures and other uncertainties, as well as those factors discussed below and elsewhere in this prospectus, particularly in “Risk Factors” and “Cautionary Notes Regarding Forward Looking Statements”, all of which are difficult to predict. In light of these risks, uncertainties and assumptions, the forward looking events discussed may not occur.

 

Gastar Exploration Ltd.

 

Overview

 

We are an independent energy company engaged in the exploration, development and production of natural gas and oil in the United States and Australia. Our principal business activities include the identification, acquisition, and subsequent exploration and development of natural gas and oil properties. Our emphasis is on prospective deep structures identified through seismic and other analytical techniques as well as unconventional natural gas reserves, such as coal bed methane. We currently are pursuing conventional natural gas exploration in the Deep Bossier play in the Hilltop area in East Texas and the Appalachian Basin in West Virginia. In our coal bed methane, or CBM, projects, we use advanced technologies to assist us in developing commercial natural gas production from known coal beds. Our primary CBM properties are in the United States in the Powder River Basin and in the Gunnedah and Gippsland Basins of Australia.

 

Recent Operational Events . Management believes that the following recent operational events are important to the success of our business plan:

 

    The Fridkin-Kaufman #1, or F-K #1, well is a Deep Bossier sand well located in the Hilltop area of East Texas, commenced production in late September 2004, with initial production rates of approximately 15.0 MMcfd (8.5 MMcfd). As a result of the Geostar acquisition, our working interest increased from 75% to 98%. Current daily production is approximately 6.4 MMcfd (4.8 MMcfd net). A 20.0 MMcfd natural gas processing plant has been built at the F-K #1 well site.

 

    The Cheney #1 well completed drilling in the Hilltop area to test the Deep Bossier sand encountered in the F-K #1 well. This well is approximately one mile north of the F-K #1 well. The Cheney #1 well encountered approximately 400 net feet of potential pay zones based on natural gas shows while drilling and on logs. The well commenced production in mid-February 2005 at an initial rate of approximately 7.0 MMcfd (4.0 MMcfd). As a result of the Geostar acquisition, our working interest increased from 75% to 98%. Current daily production is approximately 1.0 MMcfd (0.8 MMcfd net). We believe that our initial fracture stimulation of the primary pay zone in the Cheney #1 well was not effective, and we are planning to re-stimulate this well in August 2005. A 20.0 MMcfd natural gas processing plant has been constructed on the Cheney #1 well site.

 

    We completed drilling the Lone Oak Ranch #1 well in the Hilltop area and began production operations in early May 2005 at an initial rate of approximately 7.0 MMcfd (3.8 MMcfd net). As a result of the Geostar acquisition, our working interest increased from 73% to 98%. Current daily production is approximately 5.7 MMcfd (4.2 MMcfd net).

 

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    We began drilling the Greer #1 well, our fourth Bossier sand well in the Hilltop area in January 2005. The Greer #1 well is located approximately one mile from the F-K #1well. We drilled the Greer #1 well to a total depth of 17,800 feet. Based on natural gas shows during drilling and electric logs, the well encountered approximately 57 net feet of apparent pay with high indicative porosity similar to the producing zones in our previous wells. As a result of the Geostar acquisition, our working interest increased from 73% to 98%. The well commenced production in July 2005 at an initial rate of approximately 5.0 MMcfd (3.9 MMcfd net).

 

    Drilling commenced in February 2005 on the Fridkin-Kaufman #2, or F-K #2, well to a total depth of 18,700 feet. Based on electric logs, the well encountered approximately 74 net feet of apparent pay in the Bossier lower “K” sand below 18,000 feet. The well also encountered over 120 feet of indicated pay in the shallower Travis Peak formation. The well is located approximately 2,200 feet from the F-K #1 well. Planned completion activities are expected to take approximately 60 days and, if successful, initial production is expected by mid-September 2005. As a result of the Geostar acquisition, our working interest increased from 78% to 100%.

 

    Drilling commenced in May 2005 on the Donelson #1 well with a projected depth of between 17,500 and 19,000 feet. The well is currently drilling at a depth in excess of 13,000 feet. As a result of the Geostar acquisition our working interest increased from 78% to 100%.

 

    Our CBM joint venture partners drilled and completed three vertical CBM wells and one horizontal CBM well during the third and fourth quarters of 2004 on our 2.0 million gross acre PEL 238 project in New South Wales, Australia. The vertical wells were fracture stimulated with large volumes of sand proppant. These wells commenced dewatering operations in the fourth quarter of 2004. The wells have demonstrated high water rates indicative of high permeability within the coal formation and have begun producing gas after 60 to 90 days of de-watering with several of the wells producing natural gas from first production. We believe that the performance of these wells to date is confirmation of the presence of a significant CBM deposit that can be developed on a commercial basis. Further evaluation activities are anticipated for the third and fourth quarters of 2005 and in the first quarter of 2006. During the first and second quarters of 2005, we drilled the first two dedicated CBM test wells on our EL 4416 license in the Gippsland Basin, located in Victoria, Australia. We hold a 75% working interest in the CBM and Mineral Sands rights on the 1.4 million gross acre concession with the balance owned and operated by a subsidiary of Geostar. The wells are anticipated to be completed during the third quarter utilizing open-hole completion techniques commonly used in the Powder River Basin area.

 

Results of Operations

 

The following is a comparative discussion of the results of operations for the three months ended March 31, 2005 and 2004 and for the years ended December 31, 2004, 2003 and 2002. It should be read in conjunction with the financial statements and the related notes and other information included elsewhere in this prospectus.

 

Three Months Ended March 31, 2005 compared to Three Months Ended March 31, 2004

 

Revenues. Substantially all of our revenues are derived from the production of natural gas in the United States. We reported revenues of $4.7 million for the three months ended March 31, 2005, up from $356,000 for the comparable period in 2004. This increase was attributable to the commencement of production of natural gas from the F-K #1 well in East Texas in the third quarter of 2004, the commencement of production from the Cheney #1 well in East Texas in the first quarter of 2005, additional production from new CBM wells drilled in the Powder River Basin and higher prices for both natural gas and oil. Of the increase in revenues, 60% was attributed to higher production rates and 40% resulted from price increases.

 

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Natural Gas and Oil Production and Average Sales Prices. Natural gas represents substantially all of our production. The table below sets forth production and sales information for the periods indicated:

 

    

Three Months

Ended March 31,


     2005

   2004

Production:

             

Natural gas (MMcf)

     849.0      83.3

Oil (MBbls)

     0.7      0.0

Total (MMcfe)

     853.2      83.4

Natural gas (MMcfd)

     9.4      0.9

Oil (MBod)

     0.0      0.0

Total (MMcfed)

     9.5      0.9

Average sales prices:

             

Natural gas (per Mcf)

   $ 5.53    $ 3.47

Oil (per Bbl)

   $ 48.80    $ 31.13

 

Depletion, depreciation and amortization. We reported depletion, depreciation and amortization (“DD&A”) of $2.7 million for the three months ended March 31, 2005, up from $176,000 for the comparable period in 2004. DD&A increased primarily due to higher production rates attributable to the F-K #1 well in East Texas that commenced production in the third quarter of 2004 and the Cheney #1 well in East Texas that commenced production in the first quarter of 2005. Of the increase in DD&A expense, 64% was attributed to higher production rates and 36% was due to an increase in DD&A rate per unit. The DD&A rate for the period ended March 31, 2005 was $3.15 per Mcfe, as compared to prior comparable period of $2.10 per Mcf due to higher capital expenditures in Texas.

 

Impairment of natural gas and oil properties. The impairment of natural gas and oil properties for the three months ended March 31, 2005 of $4.4 million was primarily due to the result of high initial drilling and completion costs on our Deep Bossier wells in East Texas coupled with limited production history that limited the current recording of proven reserves. No impairment was recorded in the first quarter of 2004.

 

Interest and debt related items. We reported interest and debt related items of $2.2 million for the three months ended March 31, 2005, up from $419,000 for the comparable period in 2004. This increase was due to higher debt outstanding as a result of the issuance of $15.0 million and $10.0 million senior unsecured notes, $3.25 million of subordinated unsecured notes and $30.0 million of convertible debentures in 2004.

 

Lease operating, transportation and selling. We reported expenses for lease operating, transportation and selling of $1.3 million for the three months ended March 31, 2005, up from $211,000 for the comparable period in 2004. This increase was attributable to higher production volumes and an increase in the number of producing wells. Our lease operating expense per Mcfe decreased to $1.54 per Mcfe during the first three months of 2005 from $2.44 per Mcfe for the comparable period.

 

General and administrative. We reported expenses for general and administrative of $1.8 million for the three months ended March 31, 2005, up from $167,000 for the comparable period in 2004. The increase in general and administrative expenses was primarily due to higher contract staff and professional service charges and the continued recording of compensation expense due to the issuance of stock options.

 

Year Ended December 31, 2004 compared to Year Ended December 31, 2003.

 

Revenues. Substantially all of our revenues are derived from the production of natural gas in the United States. We reported revenues of $6.1 million for the year ended December 31, 2004, up from $1.5 million for the

 

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year ended December 31, 2003. This increase was attributable to the commencement of production of natural gas from the F-K #1 well in East Texas in the third quarter of 2004, additional production from new CBM wells drilled in the Powder River Basin, and higher commodity prices for both natural gas and oil. Of the increase in revenues, 59% was attributed to higher production rates and 41% resulted from price increases.

 

Natural Gas and Oil Production and Average Sales Prices. Natural gas represents substantially all of our production. The table below sets forth production and sales information for the periods indicated.

 

    

Years Ended

December 31,


     2004

   2003

Production:

             

Natural gas (MMcf)

     1,108.0      385.0

Oil (MBbls)

     1.8      1.0

Total (MMcfe)

     1,118.8      391.0

Natural gas (MMcfd)

     3.0      1.1

Oil (MBod)

     0.0      0.0

Total (MMcfed)

     3.1      1.1

Average sales prices:

             

Natural gas (per Mcf)

   $ 5.40    $ 3.72

Oil (per Bbl)

   $ 40.08    $ 27.89

 

Depletion, depreciation and amortization. We reported depletion, depreciation and amortization of $3.2 million for the year ended December 31, 2004, up from $572,000 for the year ended December 31, 2003. This increase was attributable to the commencement of production of natural gas from the F-K #1 well in East Texas in the third quarter of 2004 and additional production from new CBM wells drilled in the Powder River Basin. Of the increase in DD&A expense, 40% was attributed to higher production rates and 60% was due to an increase in DD&A rate per unit. The DD&A rate for the period ended December 31, 2004 was $2.89 per Mcfe, as compared to $1.46 for the comparable period in 2003.

 

Impairment of natural gas and oil properties. We recorded an impairment of natural gas and oil properties of $6.3 million for the year ended December 31, 2004, up from $552,000 for the comparable period in 2003. The 2004 impairment was primarily due to the result of high initial drilling and completion costs on our Deep Bossier wells in East Texas coupled with limited production history that limited the current recording of proven reserves.

 

Interest and debt related items. We reported interest and debt related items of $3.2 million for the year ended December 31, 2004, up from $2.6 million for the year ended December 31, 2003. This increase was due to higher debt outstanding as a result of the issuance of $15.0 million and $10.0 million senior unsecured notes, $3.25 million of subordinated unsecured notes and $30.0 million of convertible debentures in 2004.

 

Lease operating, transportation and selling. We reported lease operating, transportation and selling expenses of $2.0 million for the year ended December 31, 2004, up from $712,000 for the year ended December 31, 2003. This increase was due to higher production volumes and an increased number of producing wells. Our lease operating expense per Mcfe decreased to $1.78 during the year-ended December 31, 2004 from $1.82 for the comparable period in 2003.

 

General and administrative. We reported general and administrative expenses of $4.0 million for the year ended December 31, 2004, up from $1.9 million for the year ended December 31, 2003. This increase in general and administrative expenses was primarily due to higher contract staff and professional service charges and the recording of compensation expense due to the issuance of stock options in April and August 2004.

 

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Index to Financial Statements

Year Ended December 31, 2003 compared to Year Ended December 31, 2002.

 

Revenues. Substantially all of our revenues are derived from the production of natural gas in the United States. We reported revenues of $1.5 million for the year ended December 31, 2003, up from $783,000 for the year ended December 31, 2002. This increase was attributable to additional production from new CBM wells drilled in the Powder River Basin and higher commodity prices for both natural gas and oil. The increase in revenues was almost entirely attributable to price increases during the comparable periods.

 

Natural Gas and Oil Production and Average Sales Prices. Natural gas represents substantially all of our production. The table below sets forth production and sales information for the periods indicated.

 

    

Years Ended

December 31,


     2003

   2002

Production:

             

Natural gas (MMcf)

     385.0      393.2

Oil (MBbls)

     1.0      3.1

Total (MMcfe)

     391.0      411.6

Natural gas (M Mcfd)

     1.1      1.1

Oil (MBod)

     0.0      0.0

Total (MMcfed)

     1.1      1.1

Average sales prices:

             

Natural gas (per Mcf)

   $ 3.72    $ 1.33

Oil (per Bbl)

   $ 27.89    $ 20.15

 

Depletion, depreciation and amortization. We reported depletion, depreciation and amortization of $572,000 for the year ended December 31, 2003, up from $360,000 for the year ended December 31, 2002. This increase was attributable to additional production from new CBM wells drilled in the Powder River Basin. The increase in DD&A was almost entirely attributable to increases in the DD&A rate. The DD&A rate for the period ended December 31, 2003 was $1.46 per Mcfe, as compared to $0.87 for the comparable period in 2002.

 

Impairment of natural gas and oil properties. We recorded an impairment of natural gas and oil properties of $552,000 for the year ended December 31, 2003, up from $377,000 for the comparable period in 2002. Of the 2003 impairment, the majority was primarily due to the entering into of the Powder River Basin Earn-In Joint Venture, which reduced our working interest. The 2002 impairment was all related to our Australian operations.

 

Interest and debt related items. We reported interest and debt related items of $2.6 million for the year ended December 31, 2003, up from $2.0 million for the year ended December 31, 2002. This increase was attributable to the issuance of $6.7 million of convertible debentures that was completed in 2003.

 

Lease operating, transportation and selling. We reported lease operating, transportation and selling of $712,000 for the year ended December 31, 2003, down from $769,000 for the year ended December 31, 2002. This 7% decrease was primarily attributable to the sale of certain Powder River Basin assets in the second quarter of 2003. Our lease operating expense per Mcfe increased to $1.82 during the year ended December 31, 2003 from $1.75 for the comparable period in 2002.

 

General and administrative. We reported general and administrative of $1.9 million for each of the years ended December 31, 2003 and 2002.

 

Recent Developments

 

Issuance of Senior Secured Notes and Common Shares. On June 17, 2005, we completed the private placement of $63.0 million in principal amount of senior secured notes and 1,217,269 common shares. The notes

 

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bear interest at three month LIBOR plus 6% and mature on June 18, 2010. We also committed to issue to the purchasers of the notes, for no additional consideration, common shares in CDN$4.5 million increments on each of the six, twelve and eighteen-month anniversaries of the original note closing date valued on a five day weighted average trading price immediately prior to the date of issuance.

 

We have the right, exercisable quarterly during the period from August 17, 2005 to June 16, 2007, to require the original purchaser of the senior secured note to purchase additional notes in an amount limited to an aggregate of $20.0 million in principal, provided that we comply with certain financial and other covenants. If additional notes are issued, the purchasers will also be entitled to receive, for no additional consideration, additional common shares on similar terms as those issued with the original notes in a pro rata amount based on the additional principal amount of the notes. To issue these additional notes, we must meet certain requirements, including a minimum ratio of our present value, discounted at 10%, based on prices specified in the senior secured notes of proved plus probable reserves to net senior secured debt.

 

Geostar Acquisition. Concurrently with the private placement of senior secured notes, we closed the acquisition of additional leasehold and working interest properties from Geostar in the Hilltop area of East Texas and in the Powder River Basin of Wyoming and Montana. We paid a total of $68.5 million for the interests acquired from Geostar consisting of $30.5 million in cash, 1,650,133 common shares valued at CDN$4.50 per share and $32.0 million in unsecured subordinated notes maturing on January 31, 2006. The acquisition increased our working interest position in the Hilltop area to an average of over 90% and gave us operational control of the properties. The acquisition of additional Powder River Basin interests provides us with a larger interest in properties currently being developed through an existing joint venture. The Board of Directors retained a qualified, independent investment banking firm to render an opinion regarding the fairness of the Geostar acquisition. The investment banking firm provided the Board of Directors with their opinion that the Geostar acquisition was fair for Gastar’s shareholders from a financial perspective.

 

On August 11, 2005, we executed an agreement with Geostar whereby the Geostar $32.0 million unsecured subordinated note was cancelled. In conjunction with the note cancellation, we agreed to issue Geostar $17.0 million of our common shares issued at a value of CDN$3.25 and a new unsecured subordinated note for $15.0 million. The new Geostar note bears interest, payable monthly commencing February 15, 2006, at three-month LIBOR plus 4.5% and matures November 15, 2006. The note requires monthly principal payments of $1.5 million commencing February 15, 2006 and continuing for nine months thereafter with a final principal payment of $1.5 million due on November 15, 2006. We may elect to pay interest in kind through the issuance of additional notes with such notes maturing on January 15, 2007.

 

Common Share Placement. On June 30, 2005, we completed a private placement of 6,617,736 common shares at CDN$3.31 per share. The estimated net proceeds from this placement were $16.4 million (CDN$20.5 million), after deducting placement fees and expenses.

 

Business Environment

 

The price we receive for our natural gas production is influenced by both national gas price trends and regional gas prices. On a national basis, natural gas prices increased in 2004 generally due to increases in crude oil prices, economic growth and general concerns about future natural gas supplies. Since most of our production for the first three quarters of 2004 was located in the Powder River Basin of Wyoming, which sold at a significant discount to a major market such as Henry Hub. Colorado Interstate Gas Pipeline’s system is the major pricing location for our Powder River natural gas production.

 

With the beginning of our Texas production operations in the third quarter of 2004, the majority of our near term production is from Texas. For the first quarter 2005, natural gas production from our East Texas properties

 

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accounted for approximately 80% of our total natural gas production. Natural gas prices for our Hilltop area production will generally be priced based on prices at the Katy, Texas regional hub. Although monthly variances occur in the price differentials between Katy Hub prices and Henry Hub prices, Katy Hub prices generally trade at a small discount to Henry Hub prices. Our Deep Bossier production generally is priced based on Katy Hub prices less gathering, processing and transportation fees.

 

Crude oil prices increased in 2004 due to perceived tight crude supplies, the continued conflict in Iraq, and increasing global demand lead by increased Asian demand for commodities, in particular energy-related commodities. Average crude oil prices in 2004 were significantly higher than the average 2003 prices. While substantially all of our production is natural gas, high crude prices help keep natural gas prices high by keeping alternative fuels, such as heating oil and residual fuel, expensive.

 

During early 2005, crude oil prices continued to firm, reaching prices not seen in many years. Continuing tightness of supply, stronger than expected economic growth and less sensitivity to higher energy prices in major global economies (United States, Europe and Asia) were credited with being the prime factors in higher sustained crude oil prices. The higher crude oil prices continued to support higher natural gas prices even though natural gas continued to trade at less than parity on an energy equivalent basis to crude oil.

 

We do not currently have any financial derivative or “hedge” positions on any of our future natural gas and oil sales. All natural gas and oil sales are either sold directly in spot markets or sold through marketing or sales contracts priced at daily or monthly spot prices.

 

Liquidity and Capital Resources

 

During the six months ended June 30, 2005, we raised $80.5 million from various debt and equity financings, repaid $26.5 million of outstanding senior notes and expended approximately $30.5 million in cash on natural gas and oil properties. At June 30, 2005, approximately $13.3 million remained in available cash for future capital commitments.

 

On June 17, 2005, the Company completed the private placement of $63.0 million of senior secured notes bearing interest at three month LIBOR plus 6%. The notes mature on June 18, 2010. We have the right, exercisable quarterly during the period from August 17, 2005 to June 16, 2007, to require the original purchaser of the senior secured notes to purchase additional notes in an amount limited to an aggregate of $20.0 million in principal, provided that we comply with certain financial and other covenants.

 

Concurrently with the private placement of senior secured notes, we closed the acquisition of additional leasehold and working interest properties from Geostar in the Hilltop area of East Texas and in the Powder River Basin of Wyoming and Montana. We paid a total of $68.5 million for the interests acquired from Geostar consisting of $30.5 million in cash, 1,650,133 common shares valued at CDN$4.50 per share and $32.0 million in unsecured subordinated notes maturing on January 31, 2006.

 

On August 11, 2005, we executed an agreement with Geostar whereby the Geostar $32.0 million unsecured subordinated note was cancelled. In conjunction with the note cancellation, we agreed to issue Geostar $17.0 million of our common shares issued at a value of CDN$3.25 and a new unsecured subordinated note for $15.0 million. The new Geostar note bears interest, payable monthly commencing February 15, 2006, at three-month LIBOR plus 4.5% and matures November 15, 2006. The note requires monthly principal payments of $1.5 million commencing February 15, 2006 and continuing for nine months thereafter with a final principal payment of $1.5 million due on November 15, 2006. We may elect to pay interest in kind through the issuance of additional notes with such notes maturing on January 15, 2007.

 

On June 30, 2005, we completed a private placement of 6,617,736 common shares at CDN$3.31 per share. The estimated net proceeds from this placement were $16.4 million (CDN$20.5 million), after deducting placement fees and expenses.

 

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We continually evaluate our capital needs and compare them to our capital resources. To execute our operational plans, particularly our drilling plans in East Texas, additional funds will be needed for acreage acquisition, seismic and other geologic analysis, drilling, undertaking completion activities and for general corporate purposes. Our current budgeted capital expenditures for the next twelve months is approximately $40.0 million. We may have to significantly reduce our drilling and development program if our internally generated cash flow from operations and cash flow from financing activities are not sufficient to pay debt service and expenditures associated with our projected drilling and development activities. We expect to fund these expenditures from internally generated cash flow, cash on hand, the issuance of additional senior secured notes or the issuance of additional equity. We may also attempt to balance future capital expenditures through joint venture development of certain properties with industry partners. We cannot be certain that future funds will be available to fully execute our business plan. During 2004 and continuing into 2005, the availability of capital for companies in the energy industry has been high. Given the continued forecasts for high natural gas and oil prices, we believe that sufficient capital will be available to execute our business and operational plans.

 

We are highly dependent upon natural gas pricing. A material decrease in current and projected natural gas prices could impair our ability to raise additional capital on acceptable terms and result in a financial covenant default under the senior secured notes. Likewise, a material decrease in current and projected natural gas prices could also impact our ability to divest ourselves of certain non-core assets. This could impact our ability to fund future activities. Under the terms of our senior secured notes, the proceeds from asset sales must first be offered to the holders of the senior secured notes as repayment of outstanding debt.

 

We currently have no natural gas price financial instruments or hedges in place. Similarly, we have no financial derivatives. Our natural gas marketing contracts use “spot” market prices. Given the uncertainty of the timing and volumes of our natural gas production this year, we do not currently plan to enter into any long term fixed-price natural gas contracts, swap or hedge positions, other gas financial instruments or financial derivatives in 2005. Further, the senior secured notes covenants restrict us from hedging more than 50% of future production.

 

We have no off-balance sheet arrangements and have no plans to enter into any at this time.

 

Significant Accounting Policies

 

The consolidated financial statements of the Company are in U.S. dollars unless otherwise noted and have been prepared by management in accordance with generally accepted accounting principles (“GAAP”) in the United States. The preparation of consolidated financial statements in conformity with US GAAP requires management to make estimates and assumptions that affect the amounts reported in the consolidated financial statements and accompanying notes. Actual results could differ from those estimates. The consolidated financial statements have, in management’s opinion, been properly prepared using careful judgment with reasonable limits of materiality and within the framework of the significant accounting policies summarized below:

 

Consolidation. The consolidated financial statements include the accounts of the Company and the consolidated accounts of all its subsidiaries. The entities included in these consolidated accounts are 100% owned unless specified: New Energy West Corporation; 616694 Alberta Ltd.; Monterey Resources, Inc.; New Energy West (U.S.A.) Corporation; 1075191 Ontario Ltd., First Sourcenergy Wyoming, Inc; First Source Development, Inc; First Texas Development, Inc.; First Source Gas LP; Bossier Basin LLC; First Sourcenergy Group, Inc.; First Sourcenergy Kansas, Inc.; First Sourcenergy Victoria, Inc; Squaw Creek, Inc.; First Appalachian Development, Inc.; and Oil and Gas Services Inc. All significant intercompany accounts and transactions have been eliminated.

 

Furniture, equipment and other. Furniture, equipment and other are carried at historical cost and are amortized over various periods ranging from three to seven years on a straight-line basis.

 

Natural gas and oil properties. The Company follows the full cost method of accounting for natural gas and oil operations pursuant to SFAS No. 19, “Financial Accounting and Reporting by Oil and Gas Producing

 

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Companies” whereby all costs of exploring for and developing natural gas and oil reserves are initially capitalized. Such costs include land acquisition costs, geological and geophysical expenses, carrying charges on non-producing properties, costs of drilling and overhead charges directly related to acquisition and exploration activities.

 

Costs capitalized, together with the costs of production equipment, are depleted and amortized on the unit-of-production method based on the estimated net proved reserves as determined by independent petroleum engineers, converting one barrel of oil to one thousand cubic feet natural gas equivalents (Mcfe) by multiplying barrels by a factor of 6. The percentage of total reserve volumes produced during the year is multiplied by the net capitalized investment plus future development costs in those reserves (the “depletable base”).

 

Costs of acquiring and evaluating unproved properties are initially excluded from depletion calculations. These unevaluated properties are assessed periodically to ascertain whether impairment has occurred. When proved reserves are assigned or the property is considered to be impaired, the cost of the property or the amount of the impairment is added to costs subject to depletion calculations.

 

Reserves, future production profiles, and net cash flows are estimated by an independent professional reservoir engineering firm. While Gastar has hired a qualified reservoir engineering firm, its estimates are inherently uncertain, involve numerous assumptions that may not be realized, and predict asset values that may not be indicative of the true market value of the assets evaluated. As a result of the inherent uncertainties and changing technical and economic assumptions, reserve estimates are subject to revisions that can materially impact our results.

 

In applying the full cost method, the Company performs a ceiling test on properties which compares the net cost of natural gas and oil properties (“net cost”), which is equal to the unamortized cost of natural gas and oil properties less any deferred income taxes related to those properties with the calculated ceiling. The calculated ceiling (“ceiling”) is equal to the sum of the estimated discounted future net revenues from production of proved reserves as determined by an independent engineer, generally using prices in effect at the end of the period held flat for the life of production excluding the estimated abandonment cost for properties with asset retirement obligations recorded on the balance sheet and including the effect of derivative contracts that qualify as cash flow hedges, discounted at 10%, the lower of cost or estimated fair value of unproved properties included in the costs being amortized and the cost of properties not being amortized less the income tax effects. If the net cost exceeds the ceiling, an impairment loss will be determined. The impairment loss is measured as the amount by which the net cost exceeds the ceiling and is shown as a reduction in natural gas and oil properties as additional depletion. Proceeds from a sale of natural gas and oil properties will be applied against capitalized costs, with no gain or loss recognized, unless such a sale would significantly alter the rate of depletion or amortization.

 

Mineral resource properties. All acquisition, exploration and related direct and indirect overhead expenditures are expensed. The costs relating to a property abandoned are written off when the decision to abandon is made.

 

Revenue recognition. Revenue is recognized on delivery to customers pursuant to the sales method net of royalties.

 

Financial instruments. The Company carries various forms of financial instruments. Unless otherwise indicated, it is management’s opinion that the Company is not exposed to significant interest, currency or credit risks arising from these financial instruments. The fair values of these financial instruments approximate their carrying values, unless otherwise noted.

 

Foreign exchange. Foreign currency balances of the parent company and non-monetary assets and liabilities are translated at the rates of exchange on the particular transaction date. Monetary assets and liabilities denominated in foreign currencies that remain outstanding at the balance sheet date are translated at period end exchange rates with resulting gains (losses) being recognized in the period. The accounts of all active subsidiaries are maintained in US dollars.

 

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Deferred income taxes. The liability method of tax allocations is used, based on differences between financial reporting and tax bases of assets and liabilities. No future tax asset has been recorded as it is uncertain whether the Company will be able to realize this benefit.

 

Reporting currency. A majority of the Company’s operations are conducted by its U.S. subsidiaries in U.S. dollars. The operations outside of the U.S. are primarily natural gas and oil property development in Australia, which are conducted in Australian dollars. Limited operations are conducted in Canadian dollars. The Company reports its operations in U.S. dollars, its functional currency.

 

Treasury stock method. Basic earnings per common share is computed by dividing earnings by the weighted average number of common shares outstanding for the period. Diluted per share amounts reflect the potential dilution that could occur if securities or other contracts to issue common shares were exercised or converted to common shares. The treasury stock method is used to determine the dilutive effect of stock options and other dilutive instruments.

 

Cash and cash equivalents. Cash and cash equivalents include short term investments, such as money market deposits or highly liquid debt instruments, with a maturity of three months or less when purchased. We maintain our cash in bank deposit accounts, which, at times, may exceed federally insured limits. We have not experienced any losses in such accounts and believe we are not exposed to any significant risk of loss.

 

Stock-based compensation. The Company reports compensation expense for stock options granted to employees, officers and directors using the fair value method. Fair values are determined using the Black-Scholes model. Compensation costs are recorded over the vesting period.

 

Deferred financing costs. Deferred financing costs include expenses of debt financings undertaken by the Company including commissions, legal fees, value attributed to warrants issued in conjunction with the financing and other direct costs of the financing. Using the interest method, the deferred financing costs are amortized over the term of the related debt.

 

Accretion on convertible debentures. Using the interest method, the equity component of the convertible debentures is amortized over the term of the related debt.

 

Asset retirement obligation. Effective January 1, 2003, the Company adopted SFAS No. 143, “Accounting for Asset Retirement Obligations (“SFAS No. 143”) using a cumulative effect approach to recognize transition amounts for asset retirement obligations, asset retirement costs and accumulated depreciation. Asset retirement costs and liabilities associated with site restoration and abandonment of tangible long-lived assets are initially measured at a fair value, which approximates the cost a third party would incur in performing the tasks necessary to retire such assets. The fair value is recognized in the financial statements as the present value of expected future cash flows. Subsequent to the initial measurement, the effect of the passage of time on the liability for the asset retirement obligation (accretion expense) and the amortization of the asset retirement cost are recognized in the results of operations.

 

Joint venture operations. The majority of the Company’s natural gas and oil exploration activities are conducted jointly with others. These consolidated financial statements reflect only the Company’s proportionate interest in such activities.

 

Reclassification. Certain information provided for the prior year has been reclassified to conform to the presentation adopted in 2005.

 

Goodwill. On January 1, 2002, the Company adopted SFAS No. 142, “Goodwill and Other Intangible Assets” (“SFAS 142”). Under SFAS 142, goodwill and indefinite-lived intangible assets are no longer amortized but are reviewed annually (or more frequently if impairment indicators arise) for impairment. Separable

 

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intangible assets that are not deemed to have an indefinite life will continue to be amortized over their useful lives (but with no maximum life). The Company has no goodwill, so adoption of this standard had no impact on our financial position or results of operations.

 

Unaudited periods. The financial information with respect to the three months ended March 31, 2005 and 2004 is unaudited. In the opinion of management, this information contains all adjustments, consisting only of normal recurring accruals, necessary for a fair presentation of the results for the periods presented. The results of operations for interim periods are not necessarily indicative of the results of operations for the full fiscal years.

 

Industry segment and geographic information. The Company operates in one industry segment, which is the exploration, development and production of natural gas and crude oil. The Company’s operational activities are conducted in the United States and Australia with only the United States currently having revenue generating operating results.

 

New accounting policies. In December of 2004, the Financial Accounting Standards Board (“FASB”) issued SFAS 123R, “Share Based Payments” which addresses the accounting for transactions in which an entity exchanges its equity instruments for goods and services. It also addresses transactions in which an entity incurs liabilities in exchange for goods or services that are based on the fair value of the entity’s equity instruments or that may be settled by the issuance of those equity instruments. This statement is a revision of FASB No. 123, “Accounting for Stock-Based Compensation” (“SFAS No. 123”). This statement supersedes APB Opinion No. 25, “Accounting for Stock Issued to Employees”. Among other things, this statement requires a public entity to measure the cost of employee services received in exchange for an award of equity instruments based on the grant-date fair value of the award. That cost is recognized over the period during which an employee is required to provide service in exchange for the award – the requisite service period (usually the vesting period). This statement is to be applied as of the beginning of the first interim or annual period that begins after June 15, 2005, but earlier adoption is encouraged. Because the Company has disclosed pro-forma fair based value amounts in accordance with the original SFAS 123, it allows a company to adopt using a modified prospective approach. This will require the Company to recognize in the third quarter of 2005, compensation expense for options granted after June 15, 2005 and compensation expense for awards not yet vested but still outstanding.

 

In December of 2004, FASB issued SFAS No. 153, “Exchanges of Nonmonetary Assets – An Amendment of APB Opinion No. 29” (“SFAS No. 153”). The guidance in APB Opinion No. 29, “Accounting for Nonmonetary Transactions” (“APB Opinion No. 29”) is based on the principle that exchanges of nonmonetary assets should be measured based on the fair value of the assets exchanged. The guidance in that APB Opinion No. 29; however, included certain exceptions to that principle. This Statement amends APB Opinion No. 29 to eliminate the exception for nonmonetary exchanges of similar productive assets and replaces it with a general exception for exchanges of nonmonetary assets that do not have commercial substance. A nonmonetary exchange has commercial substance if the future cash flows of the entity are expected to change significantly as a result of the exchange. The provisions of this Statement are effective for nonmonetary asset exchanges occurring in fiscal periods beginning after June 15, 2005. Earlier application is permitted for nonmonetary asset exchanges occurring in fiscal periods beginning after the date this Statement is issued. The provisions of this Statement shall be applied prospectively. The adoption of SFAS No. 153 did not have any impact on the Company’s financial statements.

 

Quantitative and Qualitative Disclosure about Market Risk

 

Commodity Risk . Our major commodity price risk exposure is to the prices received for our natural gas production. Realized commodity prices received for our production are the spot prices applicable to natural gas in the region produced. Prices received for natural gas are volatile and unpredictable and are beyond our control. For the year ended December 31, 2004, a 10% change in the prices received for natural gas production would have had an approximate $600,000 impact on our revenues.

 

Interest Rate Risk . The carrying value of our debt approximates fair value. At March 31, 2005, we had approximately $58.0 million of long term debt, all of which was fixed rate. Fluctuations in interest rates have no

 

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impact on interest expense. In June 2005, we issued $63.0 million of senior secured notes that bear interest at three-month LIBOR plus 6%. A 10% fluctuation in interest rates would have an approximate $189,000 impact on annual interest expense.

 

Currency Translation Risk. Because our revenues and expenses are primarily in U.S. dollars, we have little exposure to currency translation risk, and, therefore, we have no plans in the foreseeable future to implement hedges or financial instruments to manage international currency changes.

 

Contractual Obligations and Contingencies

 

Our contractual obligations as of December 31, 2004 consisted of the following:

 

     For the Years Ended December 31,

     2005

   2006-2008

   2009-2010

   After 2010

   Total

     (in thousands)

Long term debt

   $ —      $ 26,483    $ 33,250    $ —      $ 59,733

Operating leases

     —        532      532      —        1,064
    

  

  

  

  

Total

   $ —      $ 27,015    $ 33,782    $ —      $ 60,797
    

  

  

  

  

 

Off-Balance Sheet Arrangements

 

As of June 30, 2005, we had no off-balance sheet arrangements. We have no plans to enter into any off-balance sheet arrangements in the foreseeable future.

 

 

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BUSINESS

 

Our Business

 

We are an independent energy company engaged in the exploration, development and production of natural gas and oil in the United States and Australia. Our principal business activities include the identification, acquisition, and subsequent exploration and development of natural gas and oil properties. Our emphasis is on prospective deep structures identified through seismic and other analytical techniques as well as unconventional natural gas reserves, such as coal bed methane. We seek to reduce exploration risk and financial exposure by acquiring properties that have wells previously drilled in close proximity or into the targeted geologic horizons, joint venturing with knowledgeable industry partners or by farming out acreage to other industry participants on terms that reduce our economic risk to levels deemed appropriate. Our current areas for natural gas or oil activities are:

 

    Deep Bossier play in East Texas;

 

    Powder River Basin in Wyoming and Montana;

 

    Gunnedah Basin in New South Wales, Australia;

 

    Gippsland Basin in Victoria, Australia;

 

    Appalachian Basin in West Virginia;

 

    San Joaquin Basin in California; and

 

    Cherokee Basin in Southeast Kansas.

 

We currently are pursuing conventional natural gas exploration in the Deep Bossier play in the Hilltop area in East Texas and the Appalachian Basin in West Virginia. In exploring for conventional hydrocarbons, we utilize advanced geophysics and geologic technologies to identify high potential natural gas prospects. As of June 30, 2005, we had leases on approximately 53,100 gross acres (34,000 net) in Texas and approximately 26,700 gross acres (13,300 net) in Appalachia. For the six months ended June 30, 2005, our daily production from the Hilltop area averaged approximately 6.9 MMcfed, and from the Appalachian Basin, it averaged 0.1 MMcfed.

 

In our coal bed methane, or CBM, projects, we use advanced technologies to assist us in developing commercial natural gas production from known coal beds. Our primary CBM properties are in the United States in the Powder River Basin and in the Gunnedah and Gippsland Basins of Australia. As of June 30, 2005, our acreage position in the Powder River Basin was approximately 56,800 gross acres (21,900 net), and our Australian acreage totaled approximately 3.4 million gross acres (2.0 million net). For the six months ended June 30, 2005, our average daily production from our CBM properties in the Powder River Basin was approximately 1.9 MMcfed. Exploration and long term production testing on our Australian CBM properties is currently underway. Thus, we currently have no natural gas sales from our Australian CBM properties.

 

Our Strategy

 

Management believes that:

 

    Natural gas is an environmentally friendly fuel that will be increasingly valued in the United States and Australia;

 

    Conventional natural gas exploration exposes us to potentially large natural gas reserves and significant increases in shareholder value;

 

    CBM projects provide us with lower risk exposure to long-lived natural gas production and reserves;

 

    We have made a significant natural gas discovery in the Deep Bossier play in the Hilltop area of East Texas that will require additional exploration and development;

 

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    We have the ability to assemble the technical and commercial and resources needed to pursue these potential projects; and

 

    Our successful development of one or more large potential natural gas projects will create substantial shareholder value.

 

Based on these beliefs, we have pursued a strategy that includes:

 

    Accelerating exploration and development drilling on our Deep Bossier play in East Texas;

 

    Combining lower risk CBM projects, such as the Powder River Basin and Australia, with higher risk conventional natural gas exploration;

 

    Assembling a portfolio of high-potential natural gas exploration and development projects in the East Texas and Appalachian Basins; and

 

    Limiting capital commitments and reducing risk by maintaining financial flexibility through accessing various sources of capital and monetizing certain assets through joint venture arrangements with industry participants.

 

Natural Gas and Oil Operations

 

The following provides an overview of our significant natural gas and oil projects. While actively pursuing specific exploration and exploitation activities in each of the following areas, we are continually reviewing additional opportunities. There is no assurance that new drilling opportunities will continue to be identified or that any new drilling opportunities will be successful if drilled.

 

Geostar Acquisition

 

Concurrently with the private placement of senior secured notes on June 17, 2005, we closed the acquisition from Geostar of additional leasehold and working interest properties in the Hilltop area of East Texas and in the Powder River Basin of Wyoming and Montana. We paid a total of $68.5 million for the interests acquired from Geostar consisting of $30.5 million in cash, 1,650,133 common shares valued at CDN$4.50 per share and $32.0 million in unsecured subordinated notes maturing on January 31, 2006. The acquisition increased our working interest position in the Hilltop area from an average of over 70% to an average of over 90% and gave us operational control of the properties. The acquisition of additional Powder River Basin interests increased our average working interest position from approximately 17% to approximately 38% in properties currently being developed through an existing joint venture.

 

On August 11, 2005, we executed an agreement with Geostar whereby the Geostar $32.0 million unsecured subordinated note was cancelled. In conjunction with the note cancellation, we agreed to issue Geostar $17.0 million of our common shares issued at a value of CDN$3.25 and a new unsecured subordinated note for $15.0 million. The new Geostar note bears interest, payable monthly commencing February 15, 2006, at three-month LIBOR plus 4.5% and matures November 15, 2006. The note requires monthly principal payments of $1.5 million commencing February 15, 2006 and continuing for nine months thereafter with a final principal payment of $1.5 million due on November 15, 2006. We may elect to pay interest in kind through the issuance of additional notes with such notes maturing on January 15, 2007.

 

Hilltop Area, East Texas

 

General . As of June 30, 2005, we have approximately 53,100 gross acres (34,000 net) in the Deep Bossier play in the Hilltop area, located approximately midway between Dallas and Houston in East Texas. Wells in this area target multiple potentially productive natural gas geologic horizons. Deep Bossier sand wells are typically characterized by high initial production, significant decline rates and long-lived reserves. The development of effective hydraulic formation fracturing, or “frac”, techniques has allowed operators to develop significant

 

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reserves in the Deep Bossier sand intervals. Our acreage is located in an area within the East Texas Basin where the Deep Bossier sand is encountered at greater depths with possibly thicker pay zones than the typical Deep Bossier sand development that has been experienced by other industry participants.

 

Geology. The East Texas Basin is characterized by numerous shallow and deeper productive horizons. The basin has been the site of natural gas and oil activity since the earliest days of the U.S. natural gas and oil industry. The Deep Bossier sand formation that we are targeting was not considered prospective until our activities together with the drilling of a nearby well ignited a high level of interest in this formation. To our knowledge, prior to our initial drilling activities in 2001, no wells had been drilled specifically for Deep Bossier sand production in East Texas. Our geoscientists developed the Deep Bossier sand prospect focusing on two deep wells drilled in the early 1980s. Those wells encountered over-pressured, gas-charged reservoirs in the Bossier shale section and were unable to reach the intended targets. Our geoscientists formulated a depositional model to explain the presence of these high-quality sands in an area previously believed to be too remote from the traditional sand sources for the East Texas Basin. We believe that the wells drilled to date are, in general, supporting this depositional model.

 

Gas Transportation . Given the high level of traditional natural gas and oil activities in the East Texas Basin, the area has extensive natural gas pipeline infrastructure in place. In July 2004, a new one Bcf per day natural gas transmission pipeline was constructed approximately three miles from our initial drilling activities. We have contracted for an initial 50.0 MMcfd of capacity and are negotiating an increase in that amount. Our current production from the Hilltop area is transported to the Katy Hub in Katy, Texas, where numerous parties are available to purchase the natural gas.

 

Activities. In 2001, we participated in the 21,000 foot Belin Trust A-1 well. In January 2003, Geostar took over as operator of the Belin Trust A-1 well. Geostar attempted a completion in a Deep Bossier sand (approximately 18,512 feet to 18,610 feet) and was encouraged by the initial test results. A fracture stimulation and other downhole treatment techniques were performed. The well briefly tested pipeline quality natural gas at short term rates up to 5 MMcfd before experiencing mechanical casing problems. The well was ultimately plugged and abandoned due to safety concerns.

 

Due to the encouraging results from the Belin Trust A-1 well and the results of several earlier wells drilled in the area, we announced in September 2003, that we had begun site operations on the F-K #1 well in Leon County, Texas. As a 75% working interest owner, we drilled the F-K #1 well to a projected depth of 19,175 feet. A 20.0 MMcfd natural gas processing plant was constructed at the site, and, in September 2004, the F-K #1 well began production with initial production rates of 15.0 MMcfd (8.5 MMcfd net). We now have a 98% working interest in the F-K #1 well as a result of the Geostar acquisition. Current production is approximately 6.4 MMcfd (4.8 MMcfd net).

 

The Cheney #1 well was drilled in the Hilltop area to test the Deep Bossier sand encountered in the F-K #1 well. This well is approximately one mile north of the F-K #1 well. The Cheney #1 well encountered approximately 400 net feet of potential pay based on natural gas shows while drilling and on logs. The well commenced production in mid-February 2005 at an initial rate of approximately 7.0 MMcfd (4.0 MMcfd). As a result of the Geostar acquisition, our working interest in the Cheney #1 increased from 75% to 98%. Current daily production is approximately 1.0 MMcfd (0.8 MMcfd net). We believe that our initial fracture stimulation of the primary pay zone in the Cheney #1 well was not effective, and we are planning to re-stimulate this well in August 2005. A 20.0 MMcfd natural gas processing plant has been constructed on the Cheney #1 well site that processes production from the Cheney #1 and the Lone Oak Ranch #1 wells. We built a pipeline connecting the F-K #1 well and the Cheney #1 well site to an existing pipeline system that moves production to a major natural gas hub at Katy, Texas.

 

In September 2004, as a 73% working interest owner, we announced that our third Deep Bossier sand well in East Texas, the Lone Oak Ranch #1 well, had begun drilling. The well is located approximately three miles

 

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north northwest of the F-K #1 well and approximately two miles northwest of the Cheney #1 well. The Lone Oak Ranch #1 well was drilled to target expanded Upper and Middle Bossier sections and will also test for the deeper Bossier sand encountered on the Hilltop structure in the F-K #1 and Belin Trust #1-A wells. We now have a 98% working interest in the Lone Oak Ranch #1 well as a result of the Geostar acquisition. An unrelated private exploration and production company has a 25% after payout back-in interest in the Lone Oak Ranch #1 well. As a result of the Geostar acquisition, we will hold an after payout working interest of 69% in the Lone Oak Ranch #1 well. In addition to exploring additional acreage in the Hilltop area, this well completed our obligations to earn a 56.25% working interest (approximately 75% post-Geostar acquisition) in approximately 8,000 gross acres in the Hilltop area of East Texas, including acreage that directly offsets the F-K #1 well. Current daily production is approximately 5.7 MMcfd (4.2 MMcfd net).

 

We began drilling the Greer #1 well, our fourth Deep Bossier sand well in the Hilltop area in January 2005. The Greer #1 well is located approximately one mile from the F-K #1 well. We drilled the Greer #1 well to a total depth of 17,800 feet and, based on gas shows during drilling and electric logs, the well encountered approximately 57 net feet of apparent pay. As a result of the Geostar acquisition, we increased our working interest in this well from 73% to 98%. The well commenced production in July 2005 at an initial gross sales rate of approximately 5.0 MMcfd (3.9 MMcfd net).

 

Drilling commenced in February 2005 on the Fridkin-Kaufman #2, or F-K #2, well to a total depth of 18,700 feet. Based on electric logs, the well encountered approximately 74 net feet of apparent pay in the Bossier lower “K” sand below 18,000 feet. The well encountered over 120 feet of indicated pay in the shallower Travis Peak formation. The well is located approximately 2,200 feet from the F-K #1 well. Planned completion activities are expected to take approximately 60 days and, if successful, initial production is expected by mid-September 2005. As a result of the Geostar acquisition, our working interest in the F-K #2 increased from 78% to 100%.

 

Drilling commenced in May 2005 on the Donelson #1 well with a projected depth of between 17,500 and 19,000 feet. The well is currently drilling at a depth in excess of 13,000 feet. As a result of the Geostar acquisition our working interest increased from 78% to 100%.

 

We are currently conducting extensive seismic analysis of the available Hilltop seismic data and continue to refine our geologic model of the area. We have also begun permitting a large scale 3-D seismic survey that will cover the majority of our acreage in the Hilltop area in order to better define and understand the complex geology associated with the deposition of the Deep Bossier sand in the area. The 3-D survey will also evaluate the Lone Oak Ranch area and the numerous locations similar to other Bossier play wells. We are also planning the drilling of additional deep wells, and we plan to continue to acquire new leases in the area.

 

Appalachian Basin, West Virginia

 

General. The Appalachian Basin is a proven hydrocarbon basin with substantial production history. The well developed infrastructure and proximity to major natural gas markets in this area result in gas prices generally exceeding Henry Hub gas prices, the standard for pricing NYMEX natural gas contracts. While numerous potential hydrocarbon horizons exist, we are focusing our West Virginia plans primarily on three potentially productive horizons: shallow conventional sands; the deep Trenton-Black River and fractured medium depth Devonian shales.

 

Shallow Conventional Gas. We have participated in 11 pilot wells drilled into shallow conventional gas sands. The Venango (Upper Devonian age) hydrocarbon horizon, including the primary targets of the Fifty-foot Sand, the Fifth Sand and the Gordon Sand, is a multiple horizon sand located at depths of generally less than 5,000 feet. The drilling of these horizons is relatively fast and inexpensive.

 

Trenton–Black River Deep Gas. The Trenton-Black River play was discovered in western New York where natural gas wells drilled to the Trenton-Black River formations produced at reported initial rates of

 

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approximately 5.0 to 8.0 MMcfd. The play was extended to southern central West Virginia when Trenton-Black River wells were drilled in the Roane County Cottontree Field that had reported estimated absolute open flows ranging from 50 MMcfd to over 200 MMcfd during short term testing and recoverable reserves estimated at 8 to 10 Bcf per well.

 

The deep Trenton-Black River prospective formations and other deep geologic horizons can only be identified through the use of acquired or reprocessed seismic data. Geostar, the operator of the properties, has acquired and reprocessed available 2-D seismic data as well as acquired additional proprietary 2-D seismic data to identify these deep features. We control significant lease positions over several of these seismically defined features.

 

Fractured Devonian Shales . Since the beginning of Appalachian natural gas production, natural gas has been produced from various shale formations. Devonian shales are generally considered to be an unconventional natural gas reservoir. We are combining experience gained from CBM production with our seismic acquisition and processing analysis to attempt to determine areas where naturally occurring fracture systems potentially increase shale well productivity.

 

Activities. As part of our ongoing business activities, we are constantly reassessing the technical and commercial potential of our exploration acreage. As of June 30, 2005, we had approximately 26,700 gross acres (13,300 net) in the Appalachain Basin in West Virginia. We have acquired a small working interests in the Cross #1 well and the Hammack #1 well to increase our understanding of Trenton-Black River geology and geophysics. We have a 7.0% working interest in the Cross #1 well in the Cottontree Field located in Roane County, West Virginia and a 2.0% working interest in the Hammack #1 well in Roane County. The Cross #1 well is selling approximately 900 Mcfd (gross), and the Hammack #1 encountered no commercial natural gas.

 

East Lost Hills Field, San Joaquin Basin, California

 

General . The San Joaquin Basin of California is one of the most prolific hydrocarbon producing basins in the continental United States. The 14,000 square mile basin has produced an estimated 13 billion BOE and contains 25 fields classified as giant fields, each with cumulative production to date of more than 100 million barrels of oil equivalent.

 

Activities. On November 23, 1998, the Berkley-Bellevue ELH-1 well was drilled at a depth of 17,600 feet on the East Lost Hills structure. It blew out and ignited when it encountered high-pressure gas in the Deep Temblor horizon. It was reported that the blow-out well produced a significant amount of gas and liquids before it was eventually brought under control. While the Berkley-Bellevue ELH-1 well blew out when it encountered high-pressure gas in the Deep Temblor horizon, additional wells have been unsuccessful.

 

Our California properties are located in the East Lost Hills field in Kern County, California. The ELH structure has an elongated oval shape that has a northwest to southeast orientation. Our properties are generally located along the northwest end of the ELH structure, where we have approximately 3,000 gross acres (3,000 net) on or near the ELH structure. We have no definitive plans to drill on our East Lost Hills acreage at this time; however, we are planning to evaluate the potential for shallower prospective formations on these leases.

 

Coal Bed Methane

 

Our acreage positions in the Powder River Basin and in Australia are primarily CBM plays. CBM is methane gas that is formed and stored in coal beds. The presence of methane in coal seams has been known since the mining of coal began. Until recently, CBM was considered a safety problem, and coal had to be “degasified” before subsurface coal mining could occur. In the last two decades, however, the natural gas industry has dramatically improved its technical understanding of CBM production techniques and CBM has come to be viewed as a major source of low cost methane.

 

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CBM production is dissimilar to conventional natural gas production in several notable ways. Coal seams produce nearly pure methane gas while conventional natural gas wells normally produce natural gas that contains small portions of ethane, propane and other heavier hydrocarbon gases. Methane normally constitutes more than 90% of the total gases in the production from conventional natural gas wells. Also, because coal beds often contain substantial amounts of water, it is first necessary to produce water to lower the reservoir pressure to allow the CBM to be produced. Producing and properly handling the water from the coal beds is an important part of CBM production. Once produced, CBM is dried to remove any residual moisture, compressed to pipeline pressures and ultimately transported in the same interstate pipelines as natural gas from conventional natural gas fields. CBM is also sold to the same consumers and used in the same applications as natural gas produced from conventional wells.

 

Since the late 1970s, CBM has been produced commercially by drilling conventional well bores into coal beds. The first commercial CBM fields were developed in the high rank bituminous hard coal beds of Alabama, the Appalachian Mountains of Pennsylvania, Virginia, West Virginia, the San Juan Basin of Colorado and New Mexico. Limited commercial CBM production was established in 1989 in the lower rank, sub-bituminous soft coals of the Powder River Basin of Wyoming, CBM production from the Powder River Basin has increased substantially since that date.

 

CBM plays differ from conventional natural gas plays in several significant ways. The large size of coal beds tends to reduce geologic risks while the generally shallow depths of the coals can result in simple wells with relatively low drilling costs. The combination of large CBM deposits, relatively low geologic risk and low drilling costs make CBM plays some of the most attractive in the United States. Although the actual finding and development costs vary for each individual gas field, significant technical strides have been made in lowering CBM costs.

 

We are actively developing CBM properties in the Powder River Basin of Wyoming. We are also investigating CBM development plans in the Appalachian Basin of West Virginia, on Petroleum Exploration License 238, or PEL 238, in the Gunnedah Basin in New South Wales, Australia and in the Gippsland Basin in Victoria, Australia.

 

Powder River Basin, Wyoming and Montana

 

General . The Powder River Basin encompasses approximately 26,000 square miles of eastern Wyoming and southeastern Montana. The Wyoming Powder River Basin has been an important natural gas and oil producing area for nearly 100 years. Likewise, Wyoming has been a top producer of low-sulfur soft coal for many years. Only recently has a connection been made between the large coal reserves of the basin and natural gas production. Beginning in about 1989, Powder River Basin CBM development began in earnest and has increased dramatically in recent years. The drilling activity began about 40 miles south of Gillette, Wyoming and extended northward along the east flank of the basin and westward into the basin. Generally, CBM wells are shallow and less costly than conventional natural gas wells. Because of the widespread nature of multiple coal horizons, the geologic success rates reported by some operators in the Powder River Basin have been high. Due to these and other factors, the Powder River Basin CBM play has developed into one of the most active drilling areas in the United States. However, there is no assurance that we will achieve comparable cost or similar success rates.

 

Geology. Coal in the Powder River Basin is found in the relatively shallow Paleocene Fort Union Formation. This coal forms some of the thickest known coal seams in North America. During the 1960s and 1970s, exploration wells being drilled to deeper conventional natural target horizons encountered this coal and commonly experienced gas flows from the shallow coal formations. These wells generally yielded large volumes of water and little commercial natural gas. In some cases, blowouts occurred due to unexpected natural gas flows from the shallow coal zones.

 

Excellent micro-permeability helps explain why natural gas from the Powder River Basin coal is readily produced without costly artificial stimulation. Microscopic pathways facilitate the movement of CBM to open

 

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fractures, and through these fractures, CBM finds its way to the borehole. Fracturing of the coals is apparently common throughout the Powder River Basin. This is exemplified by the large and growing area of CBM production and the large number of natural gas flows from water wells drilled into or through coal formations. The fracturing of the coal beds is critical since it is the fractures in coal that provide pathways for natural gas migration and production. Gas produced from Powder River Basin coals generally has very high methane content, usually requiring no treatment to remove carbon dioxide or nitrogen.

 

Drilling Techniques. One of the main reasons for the rapid pace of activity in the Powder River Basin is the low cost of drilling to shallow depths, generally less than 1,200 feet, and the fact that the coal there normally does not require expensive fracture treatments to produce at economic rates. The standard procedure has been to drill to just above a coal formation, set casing, then air drill into the coal, under-ream the hole, circulate out cuttings, set a pump or install gas lift if water volumes dictate, and place the well on production. CBM wells are drilled in “units” or projects, with each well in the unit connected to a low-pressure gathering pipeline. The gathering line delivers produced natural gas and water to a central facility where water is disposed of and natural gas is compressed and metered for delivery through a sales line to a main gas transport pipeline. The water production from CBM wells varies substantially. Although subject to regulatory review and approval, produced water is usually fresh and has generally been disposed of in holding ponds and surface streams. Other disposal techniques, which are somewhat more expensive, such as re-injection into non-producing formations, have also been used to dispose produced water. Gathering and processing costs vary by well location, system design and take-away capacity. Properties that are close to major pipelines should have substantially lower gathering costs than more remote properties.

 

CBM Production. The typical CBM well in the Powder River Basin initially produces significant quantities of water. As the water is produced, natural gas production also begins slowly. Typically, after a considerable amount of water is produced over a three to six-month period or longer, gas production increases and water production decreases. In some cases, wells do not produce any significant amounts of water and begin producing gas immediately. This free gas is produced from fractures in the coal that are attributable to subtle structural folding or compaction of coals after they were deposited. As the development expands, the productive area increases as water is produced from these areas. Water production can also be reduced near the edges of the basin, especially near massive open pit coal mines. These shallow coals near the outcrops appear to be partially de-watered naturally due to the extensive surface mining and its associated water production.

 

Gas Transportation. Of critical importance to the success of a CBM project in the Powder River Basin is natural gas transportation to market. Major gas pipelines have been built into the basin to transport CBM to major interstate gas markets. The Thunder Creek, Fort Union, Bighorn and Western Gas Resources pipelines are the major pipelines flowing out of the south end of the basin. The Williston Basin Interstate pipeline runs north to Montana, then east to North Dakota, eventually connecting to the Northern Border pipeline and eastern markets. Western Gas Resources’ pipelines have access to both the south and north flowing pipelines. Each of our Powder River Basin properties has access to one or several of these pipelines. Additional pipeline capacity to both the north and south has been proposed to be built.

 

Gas sales prices vary with the market, but historically have been based on the prices posted by Colorado Interstate Gas. While prices generally track this index, when transportation capacity is fully utilized, Powder River Basin gas prices can be substantially depressed, which happened in the summer of 2002.

 

Activities. We now own an approximate 38% average working interest in 56,800 gross acres (21,900 net) in the Powder River Basin of Wyoming following the Geostar acquisition. Our main focus of activity is the Squaw Creek and adjacent areas, notably the Ring of Fire field. We currently have approximately 282 CBM wells producing in the Basin.

 

In 2003, we closed a Powder River Basin Earn-In Joint Venture with a third party who paid approximately $6.7 million and made a spending commitment of $14.5 million and became operator. We assigned the operator

 

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66% of our interest in all of our existing producing and non-producing leases within the area of mutual interest. Under the agreement, the operator received 60% of all pre-tax cash flow as defined in the agreement until May 2004 when it recovered the $14.5 million spending commitment amount and acquired an interest equal to 50% of our interests. We are 50/50 joint venture partners with the operator for new CBM exploration and development activity within the AMI. In the third quarter of 2004, we exercised our option to invest additional funds to maintain our working interest ownership in any wells drilled after the spending commitment was met and will continue to invest in the Powder River Basin.

 

In 2004, approximately 117 wells were drilled under the joint venture. Of the new wells drilled, approximately 112 were on production in the second quarter of 2005. Pinnacle continues to drill under the joint venture agreement. We have chosen to fund our working interest ownership in any wells drilled after the spending commitment was met.

 

We have drilled 17 pilot test CBM wells in the Fence Creek area, but the project area is not currently connected to a natural gas pipeline. The operator has informed our management that it is currently evaluating potential natural gas gathering infrastructure options to allow development of the Fence Creek area.

 

Gunnedah Basin, New South Wales, Australia

 

General . PEL 238 is an approximately 2.0 million gross acre (1.0 million net acre) CBM property located approximately 250 miles northwest of Sydney, Australia, in the Gunnedah Basin of New South Wales. The Gunnedah Basin’s characteristics include porous permeable quartzose sandstones at several stratigraphic levels that are adjacent to mature organic reservoir rocks that are age equivalents of producing formations in the other producing regions of Eastern Australia. CBM potential is also high, as previous wells and coreholes have penetrated aggregate coal thickness of up to 250 feet.

 

The geology of the PEL 238 area is characterized by buried ridges and troughs and coal gas accumulations considered to be associated with structurally high positions. Coal was deposited throughout the Lower Permian in various parts of the Gunnedah Basin. There are over 500 miles of seismic data available over the PEL 238 area. The coal is dull, blocky and relatively uncleated.

 

The primary coal objective of the PEL 238 area is Maules Creek at depths of 2,500 to 3,000 feet, and the secondary coal objective is the Hoskisson coal at depths of 1,500 to 2,000 feet. The Maules Creek coal is Permian age coals. In the PEL 238 area, they have a vitrinite reflectance of about 0.7 and are slightly overpressured with a gradient of 0.48 psi per foot. The ashfree gas content of this coal is in the range of 400 to over 500 standard cubic feet per ton of coal. The Maules Creek coal is a closed coal system that is not mined in the area and thus should not be subject to rapid re-charge of the hydro system. The Hoskisson coals have not been tested. All tests to date have been in the Maules Creek area. The Hoskisson coal gas content is in the range of 200 to 300 standard cubic feet per ton of coal. The Hoskisson coal outcrop and is mined to the east of the PEL 238 area.

 

The CBM play in the Gunnedah Basin was initiated in 1963 with the Bohena #1 discovery well. The Australian Department of Mines and Resources has drilled over 200 core wells in the eastern portions of PEL 238 and outside the concession area that are useful in delineating the coals.

 

Activities . In 2003, we were the 100% coalbed methane working interest owner on the approximately 2.0 million acre PEL 238 concession. In 2004, we entered into a joint venture and reduced our CBM ownership to 70%. The New South Wales government has drilled over 18 conventional and CBM wells and over 200 coal core holes within PEL 238. Several PEL 238 CBM wells have demonstrated brief periods of gas production ranging from 200 to 400 Mcfd. However, these wells were not able to sustain these rates, potentially from formation damage caused while drilling. The low sustained gas and water production rates may be due in part, to

 

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suboptimal completion techniques. The joint venture is attempting to define the optimum completion technique for the PEL 238 coal that will allow sustained high flow rates to dewater the coal and to support commercially extensive development and tie-ins to surrounding natural gas markets. Additional issues that are being studied include variable carbon dioxide content in the range of 5% to 50% thought to be caused by tertiary volcanics underlying the coal sections in certain areas, correlation of individual coal seams from well to well, variable ash contents, and natural gas marketing issues. Based on these uncertainties, PEL 238 has no proven natural gas reserves.

 

After taking over the Maules Creek CBM operatorship in 2001, we reworked several CBM wells drilled by the previous operator and established short term production rates that would indicate commercial viability for CBM development. We then equipped the Bohena #3 well with the necessary equipment for a long term production test. Due to extensive well bore damage caused by the previous operator, only a very limited portion of the coals present were able to be reworked. The Bohena #3 well was on continuous production testing from March 2002 to July 2003 and produced at a stabilized rate of approximately 90 Mcfd and 50 Bwd. No other CBM wells were producing in the vicinity of the Bohena #3 well during the timeframe of March 2002 to July 2003 and only very limited de-watering of the coal seams has taken place thus severely limiting gas production. While these test results were not definitive, we continued to believe that development of the CBM resources on the PEL 238 concession could result in substantially higher individual well production.

 

In the third quarter of 2004, we and our joint venture partners drilled and fracture stimulated two coal seams in two additional vertical CBM wells on PEL 238 to attempt to establish sustained commercial production rates. While we were obligated to drill these wells under a work commitment to New South Wales government to maintain the leases, our joint venture partners have funded the work plan under their earn-in agreement, having increased their ownership interests to 50% during 2005. Management believes that the activities to date have substantially fulfilled the work plan requirements provided in the leases.

 

Surface facilities were installed and these new vertical CBM wells, and they were placed on production in October 2004. The vertical wells were fracture stimulated using large amounts of sand proppant that was placed in the Upper and Lower Maules Creek coal. The initial and early production flow rates of gas and water indicate that these fracture stimulations were successful. The vertical wells were placed on-line in October 2004 and have produced at very high water rates, indicating good permeability in the coal and an effective stimulation. The wells have also shown early gas production with gas production rising to the anticipated rates for these unconfined wells. The Bohena #9 well initiated production with water rates as high as 400 Bwd and began producing gas after only five weeks of de-watering. After a brief interruption due to the heavy rainfall and flooding, the well has stabilized at approximately 100 Bwd and 70 Mcfd of gas. The Bohena South #1 well began producing in October 2004 at an initial rate of over 1000 Bwd and starting producing gas after only three weeks of de-watering. The Bohena South 31 well is currently producing at rates of approximately 500 Bwd and 60 Mcfd and continues to improve as the fluid level is reduced in the wellbore. The Bibbliwindi #1 well has shown the best performance of the recently drilled wells. That well began producing in October 2004 at approximately 1,000 Bwd and began producing gas immediately. After being shut-in for five months to permit and construct larger water handling facilities, the well was put back on production in June 2005 and is currently producing at a rate of 1,000 Bwd and 17 Mcfd of natural gas.

 

In addition to these new wells, two older wells were placed back on production. The Bohena #3 and Bohena #7 wells, in the area of the Bohena #9 well, were placed on line in February and March of 2005, respectively. The Bohena #3 well is producing at a rate of 50 Bwd and 100 Mcfd while the Bohena #7 is producing approximately 90 Bwd and 40 Mcfd. The results of all of these wells indicate that commercial gas rates should be achievable with the de-watering of a sufficient area. These conclusions are also supported by independent reservoir modeling matching the early history of the water and gas production to established reservoir simulations. These simulations indicate peak production rates of approximately 1.5 MMcfd per well and recoverable reserves ranging from 1.0 Bcf to 4.5 Bcf per well depending upon well spacing.

 

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A lateral CBM well was also drilled and completed in the Bohena coal seam to test the productivity of horizontal well technology on PEL 238 coals. Surface facilities were installed and the horizontal well has produced at high initial water rates and has produced gas; however, the water and gas rates have not been sustainable due to damage done to the coal formation during the drilling of the lateral section of the well. The Maules Creek coal is not cleated and as a result, during drilling operations the coal tends to be ground up and create coal fines that appear to damage native permeability in the coal formation. In the vertical wells, this damage is corrected through the fracture stimulations.

 

If the production performance of these wells continues to confirm the positive results seen recently and in earlier PEL 238 wells, we hope to develop an area sufficient to justify the installation of gathering and transportation assets to serve several local natural gas markets. In order to construct a pipeline for the Bohena area to a local power plant pipeline, it is necessary to file a Development Application, or DA, with the Narrabri Shrine Council, or NSC, and a registration of an easement along the pipeline route. As part of the DA, a Statement of Environmental Effects, or SOEE, will also need to be filed with the NSC. We and our joint venture partners plan to file the DA and SOEE by the end of September 2005. Development consent is anticipated to be granted before the end of 2005.

 

PEL 238, which includes substantial forest lands, was a part of a New South Wales government-sponsored bioregion study evaluating various land use options for the forests. While there was a wide range of possible land use options proposed, some of which could restrict our access to portions of PEL 238, the final designation of the land within the Bohena project area, covering the planned CBM development area, as Community Conservation Area Zone 4 (forestry, recreation and mineral extraction) should have no material impact on the project. Management and our joint venture partners actively participated in the bioregion process to ensure that our position was well represented and to ensure that our leasehold interests continue to be available for exploration and production.

 

We and our joint venture partners had committed to spend approximately $1.4 million during the permit year that ended August 2, 2005. The joint venture has spent approximately $2.3 million during the period. The joint venture is currently seeking approval from the New South Wales government, proposing to spend an additional $1.4 million in each of the two work program years ending August 2, 2006 and 2007. The proposed work program calls for the drilling of two CBM well in each of the two years, together with continued geological and geophysical activities and ongoing production management. We will bear between 35% and 50% of these expenditures. PEL 238 will be due for renewal in August 2007. Although there is no assurance that the PEL 238 license will be renewed in 2007, the New South Wales government has typically ruled to extend such licenses.

 

Gippsland Basin, Victoria, Australia

 

General . The Gippsland property is located in the onshore portion of Gippsland Basin in Victoria, Australia. The Gippsland Basin is a proven hydrocarbon province that has produced substantial volumes of oil, natural gas and coal. Our project area covers almost all of the onshore part of the Gippsland Basin. The coal in the Gippsland Basin is primarily brown and subbituminous coals, which is similar in composition and age to the coal in the Powder River Basin of Wyoming and Montana. As in the Powder River Basin, very large open pit coal mines are operated in the Gippsland Basin. The mines are located on a relatively small part of the basin near our acreage. Substantial information on the physical properties of the Gippsland Basin coal has been developed due to the extensive mining operations.

 

Although there has been no organized attempt to date to produce CBM from the Gippsland coal, the stratigraphy and structure of the coal is well known due to extensive core bores, water bores, coal mining operations, petroleum exploration, and other geotechnical evaluations of the coal. While no data on coal gas content and permeability is currently available, natural gas has been measured in the coal and observed coming to the surface during conventional natural gas and oil exploration. The basin has multiple coal sequences at depths of less than 3,000 feet with total coal thicknesses as great as 1,000 feet and with individual seams over several hundred feet thick, which are believed to be some of the thickest brown coal seams in the world. We hope to use CBM techniques developed in the Powder River Basin and other CBM fields to evaluate Gippsland Basin CBM potential.

 

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Activities. We have an interest in mineral licenses that encompass approximately 1.4 million gross (1.1 million net) acres of Onshore Gippsland Basin in Victoria Australia. We own a 75% working interest in the Gippsland CBM rights and mineral sands rights with Geostar owning the remaining 25% working interest in the CBM and mineral sands rights.

 

No Gippsland Basin CBM production has been established to date; however, we have recently completed the drilling of two dedicated CBM wells on a site near several conventional wells that penetrated the targeted coal and encountered evidence of both permeability in the coal formation (lost drilling fluids) and the presence of CBM (gas circulated from mud systems after losing drilling fluids to the coal). Both of these new dedicated CBM wells have been drilled using drilling and completion techniques commonly used in the Powder River Basin. Each well was drilled to the top of the coal section and casing was cemented into place. Following the installation of the casing, the wells were then drilled through the coal and, if necessary, the coal are under reamed to create a large diameter cavity in the coal section. We are currently awaiting the availability of service companies to conduct water enhancements of the coal zones, a commonly used stimulation technique in the Powder River Basin that flushes the coal fines created during drilling away from the wellbore in order to create better permeability for the CBM gas to migrate to the wellbore. Upon the completion of the water enhancements, we plan to place the wells on production and begin testing the water and gas production rates in order to estimate recoverable reserves per well.

 

If the pilot program is successful, access to gas markets is available through three major pipelines that cross our Gippsland properties; one northeast to Sydney, one south to Tasmania, and one west to Melbourne. Additional potential gas markets for Gippsland Basin CBM production include mining projects located near our mineral licenses that potentially could use large amounts of natural gas in value-adding heating and roasting processes. Gas marketing agreements would need to be negotiated with potential customers.

 

We and our partner were obligated to spend approximately $1.5 million on a work program by April 2004 to maintain our Gippsland Basin leases. Although we did not meet our spending commitment, due in large part to regulatory delays encountered in obtaining certain permits, we met with the Government of Victoria in 2004 and our leases were extended until April 2006.

 

In the fourth quarter of 2004, in accordance with common government leasing practices, we relinquished approximately 382,000 gross acres to the Government of Victoria. During the first and second quarters of 2005, we drilled the first two dedicated CBM test wells on our EL 4416 license in the Gippsland Basin, located in Victoria, Australia. Gastar holds a 75% working interest in the CBM and Mineral Sands rights on the 1.4 million gross acre concession with the balance owned and operated by a subsidiary of Geostar. The wells are anticipated to be completed during the third quarter utilizing open-hole completion techniques commonly used in the Powder River Basin area.

 

While coalbed methane has been the primary focus of our efforts on the Gippsland property, our exploration license is not limited to CBM only. The Gippsland exploration licenses also include mineral rights on the properties. Our partner and we are conducting an advanced technical assessment of the mineral potential of these properties. While the assessment of the various minerals potential is in its early stages, the initial focus is on mineral sands, a major natural resource in other basins within Victoria. We have designed a mineral sands ground magnetic exploration program to further evaluate mineral sands potential. The coring portion of this program was recently completed and the data acquired is currently being evaluated.

 

Our exploration license requires that our net cumulative expenditure to date be approximately $1.5 million. Actual capital expenditures to date have totaled approximately $2.0 million, with an approximate $375,000 remaining to be spent over the balance of the term of the license. The license will expire April 2006, unless it is extended by the Government of Victoria. We anticipate that the Government of Victoria will require us to surrender approximately 35% of our current acreage upon license renewal for an additional five years.

 

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Cherokee Basin, Kansas

 

We were a party to a purchase and sale contract to develop, as project operator, approximately 110,000 acre CBM property in the Cherokee Basin of Kansas. We conducted extensive geological, engineering, and economic evaluation of the property. The property was subsequently sold and, in addition to funds received in the divestment, we retained a small overriding royalty. The purchaser has been reported to have drilled numerous CBM wells, of which we have received overriding royalty interest assignments on approximately 116 wells.

 

Natural Gas and Oil Reserves

 

Our estimated total net proved reserves of natural gas and oil as of December 31, 2004, 2003 and 2002, and the present values of estimated future net revenues attributable to those reserves as of those dates, are presented in the following table. These estimates were prepared by Netherland, Sewell & Associates, Inc., independent reservoir engineers, and are part of their reserve reports on our natural gas and oil properties. Netherland, Sewell & Associates’s estimates were based on a review of geologic, economic, ownership and engineering data that we provided. In estimating the reserve quantities that are economically recoverable, Netherland, Sewell & Associates used end-of-period natural gas and oil prices. In accordance with U.S. Securities and Exchange Commission regulations, no price or cost escalation or reduction was considered. The PV(10) amounts shown in the table below are not intended to represent the current market value of the estimated natural gas and oil reserves.

 

     As of December 31,

     2004

   2003

   2002

Estimated Net Proved Reserves:

                    

Net natural gas reserves (MMcf):

                    

Proved developed

     6,179      1,865      4,650

Proved undeveloped

     15,221      5,999      10,526

Total

     21,400      7,864      15,176

Net oil reserves (MBbl):

                    

Proved developed

     6      4      26

Proved undeveloped

     —        —        —  

Total

     6      4      26

Total Proved Natural Gas and Oil Reserves:

                    

(MMcfe)

     21,436      7,887      15,330

PV(10) (in thousands) (1):

                    

Proved developed

   $ 16,807    $ 3,332    $ 5,366

Proved undeveloped

     8,802      4,805      5,250

Total

   $ 25,609    $ 8,137    $ 10,616

(1) PV(10) represents the present value of estimated future net proved reserves before income taxes, using constant prices, discounted at 10% per annum. The prices used are presented below under the heading “Pricing Assumptions”.

 

As discussed above, in accordance with Securities and Exchange Commission regulations, estimates of our proved reserves and future net revenues are made using sales prices estimated to be in effect as of the date of such reserve estimates and are held constant throughout the life of the properties, except to the extent a contract specifically provides for escalation. Estimated quantities of proved reserves and future net revenues therefrom are affected by natural gas and oil prices, which have fluctuated significantly in recent years. There are numerous uncertainties inherent in estimating natural gas and oil reserves and their estimated values, including many factors beyond our control. The reserve data set forth in this prospectus represent only estimates. Reservoir engineering is a subjective process of estimating underground accumulations of natural gas and oil that cannot be

 

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measured in an exact manner. The accuracy of any reserve estimate is a function of the quality of available data and of engineering and geologic interpretation and judgment. As a result, estimates of different engineers, including those used by us, may vary. Estimates with respect to proved reserves that may be developed and produced in the future often are based upon volumetric calculations and upon analogy to similar types of reserves rather than actual production history. Estimates based on these methods generally are less reliable than those based on actual production history. In addition, estimates of reserves are subject to revision based upon actual production, results of future development and exploration activities, prevailing natural gas and oil prices, operating costs and other factors. The revisions may be material. Accordingly, reserve estimates often are different from the quantities of natural gas and oil that ultimately are recovered and are highly dependent upon the accuracy of the assumptions upon which they are based. Our estimated proved reserves have not been filed with or included in reports to any U.S. federal agency.

 

Pricing Assumptions

 

SEC regulations require that the gas and oil prices used in Netherland, Sewell & Associates’ reserve reports are the period-end prices for gas and oil at December 31, 2004, 2003 and 2002, respectively. These prices are projected without inflation for the life of the wells included in the reserve reports. The pricing assumptions are listed below:

 

    

2004 Report

Gas ($/MMBtu)


   2003 Report
Gas ($/MMBtu)


   2002 Report
Gas ($/MMBtu)


Powder River Basin (Wyoming and Montana)

   $ 5.52    $ 5.58    $ 3.12

Hilltop Area (East Texas)

   $ 5.82    $ 5.97    $ 4.74

Appalachian Basin (West Virginia)

   $ 6.45    $ 5.71    $ 4.80

Cherokee Basin (Kansas)

   $ 6.18    $ 5.97    $ 4.74
    

 

Oil ($/Bbl)


   Oil ($/Bbl)

   Oil ($/Bbl)

Appalachian Basin (West Virginia)

   $ 39.75    $ 29.25    $ 27.50

 

Drilling Activities

 

The following indicates the number of natural gas and oil wells drilled during the periods indicated. As used below, “undecided” wells are wells for which permanent equipment was installed for the production of natural gas or oil but that as of each respective period end were in the process of de-watering.

 

     Number of Natural Gas Wells

     Productive

   Dry

   Undecided

   Total Wells

     Gross

   Net

   Gross

   Net

   Gross

   Net

   Gross

   Net

Six Months Ended June 30, 2005

                                       

Exploratory

   1    0.7    —      —      5    3.5    6    4.2

Development

   51    9.5    —      —      14    3.2    65    12.7

Year Ended December 31, 2004

                                       

Exploratory

   2    1.3    —      —      3    1.5    5    2.8

Development

   113    25.7    —      —      5    1.1    118    26.8

Year Ended December 31, 2003

                                       

Exploratory

   1    0.8    —      —      —      —      1    0.8

Development

   133    24.6    —      —      6    1.0    139    25.6

Year Ended December 31, 2002

                                       

Exploratory

   —      —      —      —      1    0.1    1    0.1

Development

   23    12.0    —      —      —      —      23    12.0

 

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Acreage and Productive Wells

 

The following table sets forth our ownership interest in undeveloped acreage, developed acreage and productive wells in the areas indicated where we own a working interest as of June 30, 2005. Gross represents the total number of acres or wells in which we own a working interest. Net represents our proportionate working interest resulting from our ownership in gross acres or wells. Productive wells are wells in which we have a working interest and that are capable of producing natural gas or oil. Wells that are completed in more than one producing horizon are counted as one well.

 

     Undeveloped Acres

     Developed Acres

     Productive Wells

Region


   Gross

   Net

     Gross

   Net

     Gross

   Net

Powder River Basin, Wy.

   35,605    12,613      21,160    9,256      282    160.4

Appalachia, W.Va.

   25,466    12,532      1,187    735      9    6.6

California

   3,040    3,040      —      —        —      —  

Texas

   51,206    32,240      1,920    1,760      3    2.9
    
  
    
  
    
  

Total United States

   115,317    60,425      24,267    11,751      294    169.9
    
  
    
  
    
  

PEL 238

   ~1,997,800    ~998,900      ~2,200    ~1,100      —      —  

Gippsland Basin

   ~1,400,000    ~1,050,000      —      —        —      —  
    
  
    
  
    
  

Total Australia

   ~3,397,800    ~2,048,900      ~2,200    ~1,100      —      —  
    
  
    
  
    
  

 

The following table sets forth as of June 30, 2005, the expiration periods of the gross and net undeveloped acreage:

 

     Undeveloped Acres

     United States

   Australia

     Gross

   Net

   Gross

   Net

Nine Months Ended:                      

December 31, 2005

   5.115    3,026    —        —  
Twelve Months Ended:                      

December 31, 2006

   30,164    11,665    ~1,400,000    $ 1,050,000

December 31, 2007

   30,686    17,659    ~1,997,800      998,900

December 31, 2008

   20,081    11,692    —        —  

December 31, 2009

   6,831    3,416    —        —  

December 31, 2010 and later

   1,277    1,445    —        —  

 

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Volumes, Prices and Production Costs

 

The following table sets forth information with respect to our production volumes, average prices received and average production costs for the periods indicated:

 

    

For the
Three Months Ended

March 31,


  

For the Years Ended

December 31,


     2005

   2004

   2004

   2003

   2002

Production:

                                  

Natural gas (MMcf)

     849.0      83.3      1,108.0      385.0      393.2

Oil (MBbld)

     0.7      0.0      1.8      1.0      3.1

Oil Natural gas equivalents (Mmcfed)

     853.2      83.4      1,118.8      391.0      411.6

Natural gas (MMcfd)

     9.4      0.9      3.0      1.1      1.1

Oil (MBbl)

     0.0      0.0      0.0      0.0      0.0

Oil Natural gas equivalents (Mmcfe)

     9.5      0.9      3.1      1.1      1.1

Average Sales Prices:

                                  

Natural gas ($ per Mcf)

   $ 5.53    $ 3.47    $ 5.40    $ 3.72    $ 1.33

Oil ($ per Bbl)

   $ 48.80    $ 31.13    $ 40.08    $ 27.89    $ 20.15

Average costs ($ per Mcfe)

   $ 1.54    $ 2.44    $ 1.78    $ 1.82    $ 1.75

 

Markets and Customers

 

The success of our operations is dependent upon prevailing prices for natural gas and oil. The markets for natural gas and oil have historically been volatile and may continue to be volatile in the future. Natural gas and oil prices are beyond our control. However, rising demand for natural gas to fuel power generation and meet increasing environmental requirements has led some industry observers to indicate that long term demand for natural gas is increasing.

 

Our current United States production has access to major intrastate and interstate pipeline systems. We contract to sell gas from our properties with spot-market based contracts that vary with market forces on a monthly basis. While overall gas prices at major markets, such as Henry Hub in Louisiana, may have some impact on regional prices, the regional natural gas price at our production facilities may move somewhat independently of broad industry price trends. Because some of our operations are located in specific regions, we are directly impacted by regional natural gas prices in those regions regardless of pricing at major market hubs.

 

The East Texas Basin area has an extensive natural gas pipeline infrastructure in place. Our Deep Bossier production is transported to the Katy Hub in Katy, Texas, where numerous parties are available to purchase our natural gas production. Powder River Basin natural gas is sold under spot market contracts to major pipeline and natural gas marketing companies. These companies purchase essentially all of our current production.

 

The initial gas market for PEL 238 natural gas is anticipated to be a natural-gas fired electricity generation facility owned and operated by one of our joint venture partners and located near the town of Narrabri, New South Wales, Australia. Although there currently is no existing pipeline from the existing and planned CBM project areas, we and our joint venture partners are finalizing plans for a gathering system and pipeline to transport the CBM gas that we produce to the electricity generation facility. The longer term gas market for PEL 238 natural gas is considered to be future gas-fired power generation facilities in New South Wales and the industrial and residential markets in the Sydney and Newcastle areas of New South Wales. While there are currently no pipelines connecting our project areas within PEL 238 to the Sydney and Newcastle gas markets, a new 180 mile pipeline that will terminate within approximately 75 miles of our PEL 238 project areas has been announced and is expected to be begin construction in August 2005 and be operational by the second quarter of

 

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2006. Our Gippsland Basin property has access to natural gas markets through three natural gas pipelines that cross our property and provide access to markets in Sydney, Melbourne and Tasmania.

 

Our very limited oil production in West Virginia is sold under spot sales transactions at market prices. The availability and price responsiveness of the multiple oil purchasers provides for a highly competitive and liquid market for oil sales.

 

We have not pre-sold any natural gas or oil and have no future volume delivery commitments of any kind.

 

During 2004, ETC Texas Pipeline Ltd. and Western Gas Resources, Inc. accounted for 59% and 10%, respectively, of the Company’s oil and natural gas revenues. During 2003, Western Gas Resources, Inc. and Equitable Gas Company, a division of Equitable Resources, Inc. accounted for 72% and 17%, respectively, of the Company’s oil and natural gas revenues. Management believes that the loss of any individual purchaser would not have a long-term material adverse impact on the financial position or results of operations of the Company.

 

Competition

 

The natural gas and oil industry is intensely competitive and speculative in all of its phases. We encounter competition from other natural gas and oil companies in all areas of our operations. In seeking suitable natural gas and oil properties for acquisition, we compete with other companies operating in our areas of interest, including large natural gas and oil companies and other independent operators, which have greater financial resources and in many instances, have been engaged in the exploration and production business for a much longer time than we have. Many of our competitors also have substantially larger operating staffs than we do. Many of these competitors not only explore for and produce natural gas and oil but also market natural gas and oil and other products on a regional, national or worldwide basis. These competitors may be able to pay more for productive natural gas and oil properties and exploratory prospects and define, evaluate, bid for and purchase a greater number of properties and prospects than us. In addition, these competitors may have a greater ability to continue exploration activities during periods of low market prices. Our ability to acquire additional properties and to discover reserves in the future will depend on our ability to evaluate and select suitable properties and to consummate transactions in a highly competitive environment.

 

The prices of our natural gas and oil production are controlled by market forces. However, competition in the natural gas and oil exploration industry also exists in the form of competition to acquire leases and obtain favorable transportation prices. We are relatively small and may have difficulty acquiring additional acreage and/or projects and may have difficulty arranging for the transportation of our production. We also face competition in obtaining natural gas and oil drilling rigs and in sourcing the manpower to run them and provide related services.

 

Governmental Regulation

 

In addition to the environmental regulations discussed below under the heading “Environmental Regulation”, our natural gas and oil exploration, production and related operations are subject to extensive rules and regulations promulgated by federal, state and local governmental agencies. These laws and regulations, all of which are subject to change from time to time, include matters relating to land tenure; drilling and production practices such as discharge permits and the spacing of wells; the disposal of water resulting from operations and the processing, handling and disposal of hazardous materials such as hydrocarbons and naturally occurring radioactive materials; bonding requirements; reporting requirements; marketing and pricing policies; royalties; taxation; and foreign trade and investment.

 

Failure to comply with these rules and regulations can result in substantial penalties. Furthermore, we could be liable for personal injuries, property damage, spills, discharge of hazardous materials, reclamation costs, remediation, clean-up costs and other environmental damages as a consequence of acquiring a natural gas or oil opportunity.

 

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The regulatory burden on the natural gas and oil industry increases our cost of doing business and affects our financial condition. Although we believe we are in substantial compliance with all applicable laws and regulations, we are unable to predict the future cost or impact of complying with such laws because those laws and regulations are frequently amended or reinterpreted. We are unable to predict what additional legislation or amendments may be proposed that will affect our operations or when any such proposals, if enacted, might become effective.

 

U.S. Regulation

 

Transportation and Sale of Natural Gas . Historically, the transportation and sale for resale of natural gas in interstate commerce have been regulated pursuant to the Natural Gas Act of 1938, the Natural Gas Policy Act of 1978 and the regulations promulgated thereunder by the Federal Energy Regulatory Commission (FERC). In the past, the federal government has regulated the prices at which natural gas could be sold. Deregulation of natural gas sales by producers began with the enactment of the Natural Gas Policy Act of 1978. In 1989, Congress enacted the Natural Gas Wellhead Decontrol Act, which removed all remaining Natural Gas Act of 1938 and Natural Gas Policy Act of 1978 price and non-price controls affecting producer sales of natural gas effective January 1, 1993. Congress could, however, re-enact price controls in the future.

 

FERC regulates interstate natural gas pipeline transportation rates and service conditions, which affect the marketing of gas produced by us and the revenues received by us for sales of such natural gas. The FERC requires interstate pipelines to provide open-access transportation on a non-discriminatory basis for all natural gas shippers. The FERC frequently reviews and modifies its regulations regarding the transportation of natural gas with the stated goal of fostering competition within all phases of the natural gas industry. In addition, with respect to production onshore or in state waters, the intra-state transportation of natural gas would be subject to state regulatory jurisdiction as well.

 

Additional proposals and proceedings that might affect the natural gas industry are considered from time to time by Congress, the FERC, state regulatory bodies and the courts. We cannot predict when or if any such proposals might become effective or their effect, if any, on our operations. The natural gas industry historically has been closely regulated; thus, there is no assurance that the less stringent regulatory approach recently pursued by the FERC and Congress will continue indefinitely into the future. We do not believe that we will be affected by any action taken in a materially different way than other natural gas producers, gatherers and marketers with which we compete.

 

Federal Regulation of Sales and Transportation of Crude Oil . Our sales of crude oil and condensate are not currently regulated and are made at market prices. In a number of instances, however, the ability to transport and sell such products is dependent on pipelines whose rates, terms and conditions of service are subject to FERC jurisdiction under the Interstate Commerce Act. Certain regulations implemented by the FERC in recent years could result in an increase in the cost of pipeline transportation service. We do not believe, however, that these regulations affect us any differently than other producers.

 

Our operations are subject to extensive and continually changing regulation affecting the oil and natural gas industry. Many departments and agencies, both federal and state, are authorized by statute to issue, and have issued, rules and regulations binding on the oil and natural gas industry and its individual participants. The failure to comply with such rules and regulations can result in substantial penalties. The regulatory burden on the oil and natural gas industry increases our cost of doing business and, consequently, affects our profitability. We do not believe that we are affected in a significantly different manner by these regulations than are our competitors.

 

Regulation of Production . The production of oil and natural gas is subject to regulation under a wide range of state and federal statutes, rules, orders and regulations. State and federal statutes and regulations require permits for drilling operations, drilling bonds, and reports concerning operations. Most states in which we own

 

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and operate properties, have regulations governing conservation matters, including provisions for the unitization or pooling of oil and natural gas properties, the establishment of maximum rates of production from oil and natural gas wells, the spacing of wells, and the plugging and abandonment of wells and removal of related production equipment. Many states also restrict production to the market demand for oil and natural gas and several states have indicated interests in revising applicable regulations. These regulations can limit the amount of oil and natural gas we can produce from our wells, limit the number of wells, or limit the locations at which we can conduct drilling operations. Moreover, each state generally imposes a production or severance tax with respect to production and sale of natural gas, natural gas liquids and crude oil within its jurisdiction.

 

Australian Regulation

 

Commonwealth of Australia Laws and Regulations . The regulation of the natural gas and oil industry in Australia is similar to that of the United States, in that regulatory controls are imposed at both the state and commonwealth (federal) levels. Specific commonwealth regulations impose environmental, cultural heritage and native title restrictions on accessing resources in Australia. These regulations are in addition to any state level regulations. Foreign investment in Australia is regulated by the commonwealth through its foreign investment legislation and policy. In some circumstances, Australian foreign investment regulation and policy requires foreign interests to obtain prior approval from the Australian Government before investing in specific industry sectors. The Foreign Investment Review Board administers the regulation of foreign investment on behalf of the commonwealth. Its functions include analyzing proposals by foreign interests for investment in Australia and making recommendations to the Government on the compatibility of those proposals with Government policy and the relevant legislation. In some circumstances the acquisition of or formation of a new business will require review and approval under the commonwealth foreign investment policy and regulations. Australian law recognizes that in some instances native title, that is the laws and customs of the Aboriginal inhabitants, has survived European settlement. Native title will only survive if it has not been extinguished. Native title may be extinguished by an Act of Government, such as the creation of a title that is inconsistent with native title. This may include a grant of the right to exclusive possession through freehold title or lease. Native title may also be extinguished if the connection between the land and the group of Aboriginal people claiming native title has been lost. Native title legislation was enacted in 1993 in order to provide a statutory framework for deciding questions such as where native title exists, who holds native title and the nature of native title which were left unanswered by a 1992 Australian High Court decision. Native title claims by aboriginal groups’ can include claims over existing and potential natural gas and oil exploration and development areas. The commonwealth government has passed amendments to this legislation to clarify uncertainty in relation to the evolving native title legal regime in Australia created by the decision in another High Court case decided in 1996. Since 1998 the native title legislation has provided for interested parties to negotiate and register indigenous land use agreements with registered native title claimants in the early stages of development. Our Australian operations could be affected by native title claims by Aboriginal groups. Each authority to prospect, lease and pipeline license must be examined individually in order to determine validity and native title claim vulnerability.

 

Australia Gas Markets . Several statutory mechanisms regulate access rights to a range of infrastructure in Australia including gas transmission pipelines. These involve generic access regulations contained in the Trade Practices Act 1974 Cth. and industry specific schemes contained in specific legislative instruments, industry codes and schemes. Objectives of this regulatory regime include providing a process for establishing third party access to natural gas pipelines, facilitating the development and operation of a national natural gas market, promoting a competitive market for natural gas in which customers are able to choose their supplier, and providing a right of access to transmission and distribution networks on fair and reasonable terms and conditions. We cannot currently ascertain the impact of the regime objectives but believe it should benefit us.

 

Environmental Regulation

 

Our natural gas and oil exploration and production operations and similar operations that we do not operate but in which we own a working interest in the United States are subject to significant federal, state and local environmental laws and regulations governing environmental protection as well as the discharge of substances

 

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into the environment. These laws and regulations may restrict the types, quantities and concentrations of various substances that can be released into the environment as a result of natural gas and oil drilling, production and processing activities; suspend, limit or prohibit construction, drilling and other activities in certain lands lying within wilderness, wetlands and other protected areas; require remedial measures to mitigate pollution from historical and on-going operations such as the use of pits and plugging of abandoned wells; and restrict injection of liquids into subsurface strata that may contaminate groundwater. Governmental authorities have the power to enforce compliance with their laws, regulations and permits, and violations are subject to injunction, as well as administrative, civil and even criminal penalties. The effects of these laws and regulations, as well as other laws or regulations that are adopted in the future, could have a material adverse impact on our operations and other operations in which we own an interest. As discussed below, our Australian operations are similarly subject to regulation by Australian authorities.

 

We believe that we are in substantial compliance with existing applicable environmental laws and regulations. However, it is possible that new environmental laws or regulations or the modification of existing laws or regulations could have a material adverse effect on our operations and other operations in which we own an interest. As a general matter, the recent trend in environmental legislation and regulation is toward stricter standards, and this trend will likely continue. To date, we have not been required to expend extraordinary resources in order to satisfy existing applicable environmental laws and regulations. However, costs to comply with existing and any new environmental laws and regulations could become material. In addition, if substantial liabilities to third parties or governmental entities are incurred, the payment of such claims may reduce or eliminate the funds available for project investment or result in loss of our properties. Moreover, a serious incident of pollution may result in the suspension or cessation of operations in the affected area. Although we maintain insurance coverage against costs of clean-up operations, no assurance can be given that we are fully insured against all such potential risks. The imposition of any of these liabilities or compliance obligations on us may have a material adverse effect on our financial condition and results of operations.

 

The following is a summary of some of the existing environmental laws, rules and regulations to which our business operations are subject.

 

U.S. Environmental Laws

 

In the United States, environmental laws are implemented principally by the United States Environmental Protection Agency, or EPA, the Department of Transportation and the Department of the Interior, as well as other comparable state agencies.

 

Comprehensive Environmental Response, Compensation and Liability Act . The Comprehensive Environmental Response, Compensation and Liability Act, or CERCLA, also known as the Superfund law, imposes strict, joint and several liability without regard to fault or legality of conduct, on persons who are considered to have contributed to the release of a “hazardous substance” into the environment. These persons include the owner or operator of the site where the release occurred and companies that disposed or arranged for the disposal of the hazardous substance released at the site. Under CERCLA, such persons may be liable for the costs of cleaning up the hazardous substances that have been released into the environment, for damages to natural resources and for the costs of certain health studies. In addition, it is not uncommon for neighboring land owners and other third parties to file claims for personal injury and property damage allegedly caused by the hazardous substances released into the environment. Although CERCLA currently excludes “petroleum” and “natural gas, natural gas liquids, liquefied natural gas or synthetic gas useable for fuel,” from the definition of “hazardous substance,” our operations as well as other operations in which we own an interest may generate materials that are subject to regulation as hazardous substances under CERCLA.

 

CERCLA may require payment for cleanup of certain abandoned waste disposal sites, even if such waste disposal activities were undertaken in compliance with regulations applicable at the time of disposal. Under CERCLA, one party may, under certain circumstances, be required to bear more than its proportional share of

 

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cleanup costs if payment cannot be obtained from other responsible parties. CERCLA authorizes the EPA and, in some cases, third parties to take actions in response to threats to the public health or the environment and to seek to recover from the responsible classes of persons the costs they incur. The scope of financial liability under these laws involves inherent uncertainties.

 

Resource Conservation and Recovery Act . The Resource Conservation and Recovery Act, or RCRA, and comparable state programs regulate the management, treatment, storage and disposal of hazardous and non-hazardous solid wastes. Our operations and other operations in which we own an interest generate wastes, including hazardous wastes, that are subject to RCRA and comparable state laws. We believe that these operations are currently complying in all material respects with applicable RCRA requirements. Although RCRA currently exempts certain natural gas and oil exploration and production wastes from the definition of hazardous waste, we cannot assure you that this exemption will be preserved in the future, which could have a significant impact on us as well as of the oil and gas industry, in general.

 

We currently own, lease, own a working interest in, or operate numerous properties that for many years have been used by third parties for the exploration and production of natural gas and oil. Although we abide by standard industry operating and disposal practices, hazardous substances, wastes, or hydrocarbons may have been released on or under the properties owned or leased by us or in which we own an interest, or on or under other locations, including off-site locations, where such substances have been taken for disposal. In addition, many of these properties have been operated by third parties or by previous owners or operators whose treatment and disposal of hazardous substances, wastes, or hydrocarbons was not under our control. These properties and the substances disposed or released on them may be subject to CERCLA, RCRA and analogous state laws. Under such laws, we could be required to remove previously disposed substances and wastes (including substances disposed of or released by prior owners or operators), remediate contaminated property, or perform remedial plugging or pit closure operations to prevent future contamination.

 

Water Discharges. Our operations and other operations in which we own a working interest are subject to the Clean Water Act, or CWA, as well as the Oil Pollution Act, or OPA, and analogous state laws and regulations. These laws and regulations impose detailed requirements and strict controls regarding the discharge of pollutants, including spills and leaks of oil and other substances, into waters of the United States, including wetlands. Under the CWA and OPA, any unpermitted release of pollutants from operations could cause us to become subject to: the costs of remediating a release; administrative, civil or criminal fines or penalties; or OPA specified damages, such as damages for loss of use and natural resource damages. In addition, in the event that spills or releases of produced water from natural gas and oil production operations were to occur, we would be subject to spill notification and response requirements under the CWA or the equivalent state regulatory program. Depending on the nature and location of these operations, spill response plans may also have to be prepared.

 

Our natural gas and oil exploration and production operations and other operations in which we own an interest generate produced water as a waste material, which is subject to the disposal requirements of the CWA, Safe Drinking Water Act, or SDWA, or an equivalent state regulatory program. Naturally occurring groundwater is also typically produced by CBM production in our operations or in other operations in which we own an interest. This produced water is disposed of by re-injection into the subsurface through disposal wells, discharge to the surface, or in evaporation ponds. Whichever disposal method is used, produced water must be disposed of in compliance with permits issued by regulatory agencies, and in compliance with applicable environmental regulations. This water can sometimes be disposed of by discharging it under discharge permits issued pursuant to the CWA or an equivalent state program. Another common method of produced water disposal is subsurface injection in disposal wells. Such disposal wells are permitted under the SDWA, or an equivalent state regulatory program. To date, we believe that all necessary surface discharge or disposal well permits have been obtained and that the produced water has been discharged into the produced water disposal wells in substantial compliance with such obtained permits and applicable laws.

 

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Air Emissions . The Clean Air Act, or CAA, and comparable state laws and regulations govern emissions of various air pollutants through the issuance of permits and the imposition of other requirements. Air emissions from some equipment found at our operations or other operations in which we own an interest, such as gas compressors, are potentially subject to regulations under the Clean Air Act or equivalent state and local regulatory programs, although many small air emission sources are expressly exempt from such regulations. To the extent that these air emissions are regulated, they are generally regulated by permits issued by state regulatory agencies. To date, we believe that no unusual difficulties have been encountered in obtaining air permits. However, in the future, we may be required to incur capital expenditures in connection with maintaining or obtaining operating permits and approvals addressing air emission-related issues.

 

CBM production operations involve the use of gas-fired compressors to transport gas that is produced. Emissions of combustible by-products from compressors at one location may be great enough to subject the compressors to CAA and comparable state air quality regulation requirements for pre-construction and operating permits. To date, we believe that such gas-fired compressors operated by us or at other operations in which we own a working interest have been operated in substantial compliance with obtained permits and the applicable federal, state and local laws and regulations without undue cost to or burden on our business activities. Another air emission associated with these CBM operations that may be subject to regulation and permitting requirements is particulate matter resulting from construction activities and vehicle traffic. To date, we do not believe there has been any unusual difficulty in complying with requirements related to particulate matter.

 

Other Laws and Regulations. Our operations and other operations in which we own a working interest are also impacted by regulations governing the handling, transportation, storage and disposal of naturally occurring radioactive materials. Furthermore, owners, lessees and operators of natural gas and oil properties are also subject to increasing civil liability brought by surface owners and adjoining property owners. Such claims are predicated on the damage to or contamination of land resources occasioned by drilling and production operations and the products derived therefrom, and are often based on negligence, trespass, nuisance, strict liability or fraud.

 

In addition, our operations and other operations in which we own an interest may in the future be subject to the regulation of greenhouse gas emissions. In 1997, numerous countries reached agreement on the Kyoto Protocol to the United Nations Framework Convention on Climate Change. If the Protocol enters into force, adopting countries would be required to implement national programs to reduce emissions of certain gases, generally referred to as greenhouse gases, that are suspected of contributed to global warming. The Bush Administration has indicated it will not support ratification of the Protocol, and Congress has resisted recent proposed legislation directed at reducing greenhouse gas emissions. However, there has been support in various regions of the country for legislation that requires reductions in greenhouse gas emissions, and some states have already adopted legislation addressing greenhouse gas emissions from certain greenhouse gas emission sources, primarily power plants. The oil and gas exploration and production industry is a direct source of certain greenhouse gas emissions, namely carbon dioxide and methane, and future restrictions on such emissions could impact our future operations. Our operations and other operations in which we own an interest currently are not adversely impacted by current state and local climate change initiatives; however, it is not possible to accurately estimate how potential future laws or regulations addressing greenhouse gas emissions would impact our business.

 

Finally, legislation continues to be introduced in Congress and development of regulations continues in the Department of Homeland Security and other agencies concerning the security of industrial facilities, including oil and gas facilities. Our operations and the operations of the oil and gas industry in general may be subject to such laws and regulations. Presently, it is not possible to accurately estimate the costs we could incur to comply with any such facility security laws or regulations, but such expenditures could be substantial.

 

Australian Environmental Laws

 

Australia has environmental laws and regulations that are similar in scope and impact to United States environmental laws and regulations. Similar approval, licensing and operational impacts apply at a

 

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commonwealth, state and local government level. As a result, environmental laws and regulations can result in similar licensing and operational impacts in Australia that are similar to those discussed above with respect to the United States.

 

The legislation regulating environmental assessment at a commonwealth level is the Environmental Protection and Biodiversity Conservation Act 1999 (Cth.) . This Commonwealth Act establishes a regime for protecting the environment, flora and fauna biodiversity and Australian national heritage. It requires any person taking an action which could have a significant impact on one of these values to refer it to the commonwealth Minister for the Environment for consideration and potential assessment. The Act only applies to matters of national environmental or heritage significance. These are matters which impact on a world heritage site, Ramsar wetlands, species which are listed as threatened under the Act, migratory species, nuclear actions and commonwealth marine areas or places listed on the commonwealth heritage list. Operators are required to assess their projects to determine whether an action is likely to have a significant impact on matters of national environmental significance, and make a decision respecting submission of that assessment to a public referral process. The referral is expected to add some time to the existing approval process but have little impact on most routine activities and operations. In addition, see the discussion in “Business—Gunnedah Basin, New South Wales, Australia” for a discussion of the New South Wales government’s bioregion study involving PEL 238. Environmental protection is also regulated in each state and territory by specific legislation enacted by each state or territory. The governments of New South Wales and Victoria both have a suite of legislation regulating environmental matters in their states. The legislation imposes a licensing approval and contamination management scheme which may impact on our operations and impose a liability which may extend beyond the time period during which properties are operated, occupied or owned. The laws and regulations also restrict emissions to air, land and water and may control or regulate substances which can be released into the environment and the manner in which they are transported and disposed of. Environmental laws and regulations protecting archeological relics, natural and built heritage as well as native flora and fauna can also impact on our operations and impose obligations in respect of restitution or replacements well as liability in respect of damage.

 

Australia Gas Markets . Several statutory mechanisms regulate access rights to a range of infrastructure in Australia including gas transmission pipelines. These involve generic access regulations contained in the Trade Practices Act 1974 Cth. and industry specific schemes contained in specific legislative instruments, industry codes and schemes. Among the objectives of this regulatory regime are: to provide a process for establishing third party access to natural gas pipelines, to facilitate the development and operation of a national natural gas market, to promote a competitive market for natural gas in which customers are able to choose their supplier, and to provide a right of access to transmission and distribution networks on fair and reasonable terms and conditions. We cannot currently ascertain the impact of the regime objectives but believe it should benefit us.

 

Legal Proceedings

 

First Sourcenergy Group, Inc., one of our wholly owned subsidiaries, is a named party to an Arbitration proceeding captioned Estate of Virgil Sparks and Oil Wells of Kentucky, Inc. v First Sourcenergy Group, Inc. and Geostar. The dispute involves historical dealings with the development of an Authority to Prospect (“ATP”) Area in Queensland, Australia, as well as an ancillary Agreement. The formal Arbitration is in discovery stages. First Sourcenergy Group, Inc. and Geostar have moved to dismiss the Arbitration on the grounds of a claimed prior settlement and release agreement. First Sourcenergy Group, Inc. and Geostar are vigorously defending the Arbitration, and firmly believe that its position is sound. Further, an interest in ATP 560 was transferred from First Sourcenergy Group, Inc. to Conquest Exploration, Inc. in 2001, the result of which means that, although First Sourcenergy Group, Inc. is a named defendant, Conquest Exploration, Inc.) and Geostar would bear primary liability from this Arbitration action.

 

On May 3, 2005 Western Gas Resources, Lance Oil and Gas Company, Inc. and Williams Production RMT Company filed a lawsuit against us and others over a dispute that has arisen concerning a June 2002 Lease Exchange and Purchase Agreement between certain of the parties. The issue involves a certain gas gathering

 

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agreement and its applicability to some of the properties exchanged under the June 2002 Agreement. A formal response to the Complaint was filed in June 2005. We believe that is has multiple strong defenses to this action and intends to vigorously advance its positions. Further, at the very preliminary stage, it would appear that our exposure is significantly lower that that of the other defendants

 

We are subject to various regulatory and statutory requirements relating to the protection of the environment. These requirements, in addition to contractual agreements and management decisions, result in the accrual of estimated future removal and site restoration costs. These costs are initially measured at a fair value and are recognized in the consolidated financial statements as the resent value of expected future cash flows. Subsequent to the initial measurement, the effect of the passage of time on the liability for the ARO (accretion expense) and the amortization of the ARO cost are recognized in the results of operations. Costs attributable to these commitments and contingencies are expected to be incurred over an extended period of time and are to be funded mainly from our cash provided by operating activities. Although the ultimate impact of these matters on net earnings cannot be determined at this time, it could be material for any one quarter or year.

 

In addition, we are involved in various other claims and legal actions arising out of the normal course of our business. We do not expect that the outcome of these proceedings will have a material adverse effect on our financial position, results of operations or cash flow.

 

Employees

 

Currently, we have nine employees, all of whom are full time. We use the services of independent consultants and contractors to perform various professional services, including reservoir engineering, land, legal, environmental and tax services. On those properties where we are not the operator, we rely on outside operators to drill, produce and market our natural gas and oil.

 

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MANAGEMENT

 

Directors, Officers and Certain Named Individuals

 

Our directors, executive officers and certain named individuals and their ages as of August 1, 2005 are as follows:

 

Name


   Age

  

Position


Thomas E. Robinson.

   50    Chairman of the Board of Directors

J. Russell Porter.

   43   

Chief Executive Officer, President, Chief Operating Officer and Director

Michael A. Gerlich

   51    Chief Financial Officer & Vice President

Frederick J. Lambert

   35    Controller

Sara-Lane Sirey

   37    Corporate Secretary

Abby Badwi

   58    Director

Thomas Crow

   73    Director

Matthew J. P. Heysel.

   48    Director

Richard Kapuscinski

   43    Director

 

Thomas E. Robinson has been a member and the Chairman of our Board of Directors since February 2001. Mr. Robinson has more than 20 years of experience investing in various areas in the natural gas and oil industry, both as an investor in and developer of exploration projects. During this period, he directed natural gas and oil drilling and production activities for Geostar and individually in the United States (including the states of Michigan, Illinois, Texas, Kansas, Kentucky and Wyoming) and New South Wales, Victoria and the Cooper Basin in Australia. Mr. Robinson is the Chief Executive Officer of Geostar, a position he has held since January 1994. From May 2000 to February 2004, Mr. Robinson also served as our President and Chief Executive Officer.

 

J. Russell Porter has been a member of our Board of Directors and has served as our Chief Executive Officer and President since February 2004. From September 2000 to February 2004, he served as our Chief Operating Officer. Mr. Porter has a unique background, with approximately 14 years of natural gas and oil exploration and production experience and five years of banking and investment experience specializing in the natural gas and oil industry. From April 1994 to September 2000, Mr. Porter served as an Executive Vice President of Forcenergy, Inc., a publicly traded exploration and production company, where he was responsible for the acquisition and financing of the majority of its assets across the United States and Australia. Mr. Porter holds a BS degree in Petroleum Land Management from Louisiana State University and a MBA from the Kenan-Flagler School of Business at the University of North Carolina at Chapel Hill.

 

Michael A. Gerlich joined Gastar in May 2005 as Vice President and Chief Financial Officer. Prior to joining Gastar Mr. Gerlich was Senior Vice President – Accounting and Finance for Calpine Natural Gas L.P., formerly known as Sheridan Energy, Inc. He joined Sheridan Energy in July 1994 as Vice President and Chief Financial Officer. Over a 10 year period prior to joining Sheridan Energy, Mr. Gerlich held various accounting and finance positions with Trinity Resources, Ltd., with his last position being Executive Vice President and Chief Financial Officer. Mr. Gerlich was also with a big four accounting firm, where the focus of his practice was with energy related clients. Mr. Gerlich is a Certified Public Accountant and graduated with honors from Texas A&M University with a degree in accounting.

 

Frederick J. Lambert has been our Controller since May 2000. He additionally is the Controller of Geostar Corporation, a position he has held since February 1997. Previously, Mr. Lambert worked as a staff accountant for Shoemaker & Wilson, P.C., where the focus of the practice was oil and gas exploration and taxation. He is a graduate of Central Michigan University with a degree in Accounting and is a Certified Public Accountant.

 

Sara-Lane Sirey, LLB is an independent contractor who has served as the Corporate Secretary of Gastar and General Corporate Canadian Counsel since May 2000. From July 1993 to April 2001, she served as an attorney at the law firm of Armstrong Perkins Hudson LLP (formerly Ogilvie and Company) in Calgary,

 

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Alberta, Canada, becoming a partner in 1999. Focusing on corporate/securities law, she has acted for issuers, in all industry segments, in Canada, the United States and internationally, focusing on corporate reorganizations, commercial transactions and initial public offerings of junior emerging companies as well as equity and debt financings, mergers and acquisitions and commercial transactions of senior established companies. Ms. Sirey obtained her Bachelor of Laws degree at the University of Saskatchewan in 1992.

 

Abby F. Badwi has been a member of our Board of Directors since February 2004. Mr. Badwi is an international energy executive with more than 30 years experience in the exploration, development and production of oil and gas fields in North America, South America, Asia and the Middle East. He is currently (and has been since July 2005) the President and CEO of Rally Energy, an oil and gas company with operations in Egypt, Pakistan and Canada. Since 2003, Mr. Badwi has also held the position of President of Corrundum Energy Ltd., a private company providing advisory services and investments in oil and gas ventures. From 2000 to 2002 he has served as President and CEO of Geodyne Energy Inc., an oil and gas exploration and production company. From 1994 to December 1999, Mr. Badwi served as President and Chief Operating Officer of Carmanah Resources Ltd., a Calgary, Alberta-based company with oil holdings in Canada, Indonesia and Venezuela. He has been an officer and director of several Canadian public and private companies and is currently a director of Arpetrol Inc., Gastar Exploration Ltd, Sustainable Energy Technologies Ltd., and Fairmount Energy Inc. Mr. Badwi is a geology graduate of the University of Alexandria, Egypt.

 

Thomas L. Crow has been a director since April 2002. Mr. Crow was the founder and President of Cobra Golf Inc. (a worldwide leading manufacturer of golf clubs which was listed on NASDAQ) from 1973 to 1994 and served as Vice President from 1994 to 1996 when Cobra Golf Inc. was acquired to be a subsidiary of Fortune Brand Inc. (a significant NYSE conglomerate). From 1997 to 2002, Mr. Crow remained as Chairman Emeritus of Cobra Golf Inc. Mr. Crow is currently an independent businessman.

 

Matthew J. P. Heysel joined our Board of Directors in January 2002. From 2000 until his resignation in May, 2005, Mr. Heysel served as Chairman of the Board of Directors and Chief Executive Officer of Big Sky Energy Corporation, an international oil and gas company. Mr. Heysel was also Chairman of Big Sky Energy Corporation’s subsidiaries, Big Sky Energy Kazakhstan Ltd. and Big Sky Energy Atyrau Ltd. He also serves as the Chairman of both Big Sky Network Canada Ltd., a Canadian company located in Chengdu, China, to provide high speed internet technology services, and Chengdu Big Sky Technology Services Ltd., a Canadian company located in Calgary, Alberta to provide high speed internet technology services. From 1997 to 1999, Mr. Heysel served as an investment banker at Yorkton Securities, a Canadian independent securities firm, where he was responsible for corporate finance in the oil and gas sector. From 1987 to 1997, Mr. Heysel was with Sproule Associates Limited, Canada’s largest petroleum engineering and geological consulting firm, holding the positions of Engineering Manager, Senior Associate, and Manager of International Projects. Mr. Heysel served as a Director of Canada’s Petroleum Society from 1989 to 1992 and also sits as a board member of public and private oil and gas companies active in North America. Mr. Heysel obtained an Honours Bachelor’s Science Degree from the University of Western Ontario in 1979, and a Bachelor of Science-Chemical Engineering from the University of Toronto in 1982 and has been a practicing professional Petroleum Engineer since that date.

 

Mr. Heysel obtained an Honours Bachelor’s Science Degree from the University of Western Ontario in 1979, and a Bachelor of Science—Chemical Engineering from the University of Toronto in 1982.

 

Richard Kapuscinski has been a member of our Board of Directors since July 2000. Mr. Kapuscinski is a Director of Marketing at Turbo Genset Inc, as the North American Business Development Manager since November 1999. Turbo Genset Inc. is a designer and manufacturer of innovative products for power generation and power conditioning. From 1986 to 1999, Mr. Kapuscinski worked as a Sales Marketing Manager with Tyco International (US) Inc. (formerly Keystone Valve), and from 1984 to 1986, he worked as an Engineering Technologist with Esso Petroleum. Mr. Kapuscinski is a Certified Mechanical Engineering Technologist and is a member of the Ontario Association of Certified Engineering Technicians and Technologists and the Instrument Society of America. He studied Mechanical Engineering at Lambton College in Sarnia, Ontario, Canada having a strong influence in the Petroleum and Petrochemical Industry.

 

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Executive Compensation

 

Summary of Compensation

 

The following table shows all compensation awarded or paid to, or earned by, our executive officers and certain named individuals for the years ending December 31, 2004, 2003 and 2002. Except as reflected in the following table, none of our executive officers received compensation in excess of $100,000 in any of the fiscal years ending December 31, 2004, 2003 or 2002 .

 

Summary Compensation Table

 

                    Long term
Compensation


   

Name and Principal Position


  Year

  Annual Compensation

  Awards

  Payouts

  All Other
Compensation


    Salary

  Bonus

  Other Annual
Compensation (1)


  Securities
Underlying
Options


  Long Term
Incentive
Plan
Payments


 

Thomas E. Robinson,

Chairman of the Board and Chief Executive Officer (2)(3)

  2004
2003
2002
  $
 
 
—  
—  
—  
  $
 
 
—  
—  
—  
  $
 
 
—  
—  
—  
  500,000
—  
—  
  —  
—  
—  
   
 
 
—  
—  
—  

J. Russell Porter,

Chief Executive Officer (4)

  2004
2003
2002
  $
$
$
350,000
350,000
204,167
  $
 
 
150,000
—  
—  
   
 
 
—  
—  
—  
  1,000,000
—  
—  
  —  
—  
—  
   
 
 
—  
—  
—  

Victor Hughes,

Former Chief Financial Officer (3)(5)

  2004
2003
2002
   
 
 
—  
—  
—  
   
 
 
—  
—  
—  
   
 
 
—  
—  
—  
  200,000
—  
—  
  —  
—  
—  
   
 
 
—  
—  
—  

Frederick J. Lambert,

Controller (3)(6)

  2004
2003
2002
  $
 
 
46,875
—  
—  
   
 
 
—  
—  
—  
   
 
 
—  
—  
—  
  150,000
—  
—  
  —  
—  
—  
   
 
 
—  
—  
—  

Sara-Lane Sirey,

Corporate Secretary (7)

  2004
2003
2002
   
 
 
—  
—  
—  
   
 
 
—  
—  
—  
   
 
 
—  
—  
—  
  50,000
—  
—  
  —  
—  
—  
  $
$
$
69,848
58,688
43,438

(1) As permitted by the rules promulgated by the Securities and Exchange Commission, no amounts are shown with respect to perquisites and other personal benefits, securities or property for each individual named in the table above that did not exceed the lesser of $50,000 or 10% of the sum of the amounts in the annual salary and bonus columns reported for such individual.
(2) Mr. Robinson resigned as Chief Executive Officer on February 17, 2004 but continues to hold the title of Chairman of the Board.
(3) Mr. Robinson, Mr. Hughes and Mr. Lambert received no cash compensation from us for any services performed by them.
(4) From September 2000 until February 17, 2004, Mr. Porter served as our Chief Operating Officer. Mr. Porter’s salary for 2002, 2003 and 2004 was paid by Geostar. On February 17, 2005, Mr. Porter was appointed our Chief Executive Officer. Mr. Porter’s bonus for 2004 was paid by Gastar in 2005. Under the terms of his current employment agreement, he receives an annual base salary of $450,000, plus bonus.
(5) Mr. Hughes resigned in February 2005. Options granted to Mr. Hughes in 2004 were cancelled in May 2005 as a result of his resignation.
(6) Mr. Lambert acted as Interim Chief Financial Officer from February 2005 until May 17, 2005, the date on which Mr. Gerlich joined us as Vice President and Chief Financial Officer.
(7) Ms. Sirey, an independent contractor, acts as our Corporate Secretary. Cash amounts paid by us for her services are shown as Other Compensation.

 

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For additional information on cost sharing arrangements with Geostar, see “Certain Relationships and Related Party Transactions”.

 

Michael A. Gerlich joined us on May 17, 2005 as Vice President and Chief Financial Officer. Under the terms of his employment contract, Mr. Gerlich receives an annual base salary of $275,000.

 

Stock Option Grants and Exercises

 

The following table shows certain information about stock option grants to our executive officers and certain named individuals during the year ended December 31, 2004.

 

Name


   Number of
Securities
Underlying
Options/
SARs
Granted


   Percentage
of Total
Options/
SARs
Granted to
Employees
in 2004


    Strike
Price
(CDN$)


   Expiration
Date


   Potential Realizable
Value at Assumed
Annual Rates of Stock
Appreciation for
Option Term (CDN$)


              5%

   10%

Thomas E. Robinson, Chairman of the Board and former Chief Executive Officer (1)

   500,000    9.1 %   3.41    08/04/09    471,060    1,040,920

J. Russell Porter, Chief Executive Officer (2)

   1,000,000    18.2 %   3.41    08/04/09    942,120    2,081,839

Victor Hughes, Former Chief Financial Officer(3)

   200,000    3.6 %   3.41    08/04/09    188,424    416,368

Frederick J. Lambert, Controller

   100,000    1.8 %   3.41    08/04/09    141,318    312,276

Sara-Lane Sirey, Corporate Secretary

   50,000    0.9 %   3.41    08/04/09    47,106    104,092

(1) Mr. Robinson resigned as Chief Executive Officer on February 17, 2004 but continued to hold the title of Chairman of the Board.
(2) On February 17, 2004, Mr. Porter was appointed our Chief Executive Officer. From September 2000 until February 17, 2004, he served as Chief Operating Officer.
(3) Mr. Hughes resigned in February 2005. Options granted to Mr. Hughes and unexercised were cancelled in May 2005 as a result of his resignation.

 

The following table shows information about stock options held as of December 31, 2004 by our officers and certain named individuals. None of our executive officers and certain named individuals exercised any stock options during 2004.

 

Name


  

Number of Securities
Underlying Unexercised
Options at

December 31, 2004


   Value of Unexercised in the Money
Options at December 31, 2004 (1)


     Exercisable

   Unexercisable

   Exercisable

   Unexercisable

Thomas E. Robinson, Chairman of the Board and former Chief Executive Officer (2)

   1,442,400    980,800    CDN$ 1,644,336    CDN$ 793,112

J. Russell Porter, Chief Executive Officer (3)

   650,000    750,000    CDN$ 578,500    CDN$ 367,500

Victor Hughes, Former Chief Financial Officer (4)

   700,000    300,000    CDN$ 1,782,000    CDN$ 212,000

Frederick J. Lambert, Controller

   300,000    250,000    CDN$ 342,000    CDN$ 187,500

Sara-Lane Sirey, Corporate Secretary

   300,000    150,000    CDN$ 342,000    CDN$ 138,500

(1) A per share price of CDN$3.90, the closing price on the Toronto Stock Exchange on December 31, 2004, was used for purposes of this calculation.
(2) Mr. Robinson resigned as Chief Executive Officer on February 17, 2004 but continued to hold the title of Chairman of the Board.

 

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(3) On February 17, 2004, Mr. Porter was appointed our Chief Executive Officer. From September 2000 until February 17, 2004, he served as Chief Operating Officer.
(4) Mr. Hughes resigned in February 2005. Options held by Mr. Hughes were cancelled in May 2005 as a result of his resignation.

 

On February 17, 2004, Mr. Porter was appointed our Chief Executive Officer. From September 2000 until February 17, 2004, he served as Chief Operating Officer.

 

Equity Compensation Plan Information

 

Our 2002 Stock Option Plan was approved and ratified by our shareholders on July 5, 2002. The 2002 Stock Option Plan superseded and replaced our prior stock-based compensation plans. Unexercised stock options granted under our prior stock option plans that had not expired or been cancelled on the effective date of the 2002 Stock Option Plan were ratified and confirmed as included under the 2002 Plan. Consequently, all currently outstanding stock options are subject to the terms of the 2002 Stock Option Plan.

 

The 2002 Stock Option Plan authorizes the issuance of options to purchase a maximum of 25 million common shares. If any option granted under the 2002 Stock Option Plan expires or terminates for any reason in accordance with the terms of the 2002 Stock Option Plan without being exercised, the unpurchased shares subject to that option will become available for other option grants under the 2002 Stock Option Plan. The 2002 Stock Option Plan is our only equity compensation plan.

 

As of August 1, 2005, we had granted options to purchase 17,329,600 common shares pursuant to the 2002 Stock Option Plan, 11,705,850 shares of which shares are vested but have not been exercised.

 

The 2002 Stock Option Plan is administered by our Board of Directors. Pursuant to the 2002 Stock Option Plan, our Board of Directors may allocate non-transferable options to purchase common shares to directors, officers, employees and consultants of Gastar and its subsidiaries. At the time of granting options under the 2002 Stock Option Plan, the aggregate number of common shares underlying all options granted under the 2002 Stock Option Plan and the aggregate number of common shares underlying the options granted to each individual under the 2002 Stock Option Plan may not exceed the maximum number permitted by any stock exchange on which our common shares are listed or by any other regulatory body having jurisdiction. Options issued pursuant to the 2002 Stock Option Plan have an exercise price determined by the Board of Directors, but that exercise price cannot be less than the price permitted by any stock exchange on which our common shares are then listed.

 

Stock Appreciation Rights, Restricted Shares and Long term Incentive Plans

 

We did not grant any stock appreciation rights or restricted shares to any of our executive officers or directors during the year ended December 31, 2004. No stock appreciation rights were exercised during the year ended December 31, 2004.

 

We do not have any long term incentive plans other than the 2002 Stock Option Plan.

 

Employment Agreements and Termination of Employment and Change of Control Arrangements

 

We have entered into an employment agreement with our Chief Executive Officer and Chief Financial Officer. Each employment agreement shall continue unless terminated in accordance with the provisions of his respective agreement. Each employment agreement provides for a base salary, a bonus, participation in our health plans and other fringe benefits. The agreements also include confidentiality provisions.

 

Mr. Porter’s 2005 annual base salary is $450,000, with an annual bonus not to be less than 20% of his annual salary. He received a bonus in 2004 of $150,000. Additionally, Mr. Porter will receive reimbursement for

 

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club and organizational membership used in furtherance of the Company’s business. We will pay Mr. Porter severance benefits if his employment is terminated by death, disability, or if he or Gastar terminates his employment with proper notice. Severance benefits will be equal to two times his total compensation, as shown on his most recent Form W-2. Severance benefits will be payable over the “Severance Pay Period”, as set forth in his employment agreement. Mr. Porter will receive no severance payment if his termination is due to “Reasonable Cause”.

 

Mr. Gerlich’s base salary is $275,000. Annual bonuses are at the discretion of the Company’s board of directors. Upon becoming Chief Financial Officer, Mr. Gerlich was granted a stock option to acquire 250,000 shares of our common shares. Additionally, upon his employment’s one year anniversary, he will be granted an additional stock option to acquire 125,000 common shares. We will pay Mr. Gerlich severance benefits if his employment is terminated by any reason other than “Reasonable Cause”. Severance benefits will be equal to two times his most recent annual compensation (exclusive of bonuses received or other non-cash compensation) if notice is received after May 17, 2006. If notice is received prior to May 17, 2006, the severance amount equal to one times his most recent annual compensation (exclusive of bonuses received or other non-cash compensation). Severance benefits will be payable over the “Severance Pay Period”, as set forth in his employment agreement.

 

Compensation of Directors

 

Directors currently do not receive any cash or other compensation for their services as members of our Board of Directors, but they are reimbursed for certain expenses incurred in connection with attendance of Board and committee meetings in accordance with company policy.

 

Directors are eligible to receive stock option grants under our 2002 Stock Option Plan. During the fiscal year ended December 31, 2004, we did not grant any stock options to any of our directors under our 2002 Stock Option Plan.

 

Compensation Committee Interlocks and Insider Participation

 

From January 1, 2004 until May 28, 2004, the compensation committee of our Board of Directors, which we refer to as the Remuneration Committee, was comprised of Messrs. Crow, Kapuscinski, Heysel and Robinson. Other than Mr. Robinson who served as our Chief Executive Officer until February 17, 2004, no member of the Remuneration Committee was during the 2004 fiscal year or at any time prior to the 2004 fiscal year an officer or employee of us or any of our subsidiaries. As of May 28, 2004, our Remuneration Committee is comprised of Messrs. Badwi, Crow, Kapuscinski and Heysel, none of whom is or has ever served as an officer or employee of Gastar or any of its subsidiaries. None of our executive officers serves as a member of the board of directors or compensation committee (or committee performing similar functions) of any entity that has one or more executive officers who serve on our Board of Directors or Remuneration Committee.

 

Directors’ and Officers’ Liability Insurance

 

We carry directors’ and officers’ liability insurance with a policy limit of $20.0 million.

 

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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT

 

The following table sets forth certain information about the beneficial ownership of common shares as of August 1, 2005 by:

 

    Each of our directors;

 

    Our executive officers named in the Summary Compensation Table above;

 

    All of our directors and executive officers as a group; and

 

    Each person known to us to be the beneficial owner of more than 5% of our outstanding common shares.

 

For purposes of the following table, a person is deemed to be the beneficial owner of securities that can be acquired by that person within 60 days from August 1, 2005 upon the exercise of warrants or options or upon the conversion of convertible securities. Each beneficial owner’s percentage is determined by assuming that options, warrants or conversion rights that are held by that person regardless of price, but not those held by any other person, and which are exercisable within 60 days from August 1, 2005, have been exercised.

 

Unless otherwise indicated and subject to community property laws where applicable, we believe that all persons named in the following table have sole voting and investment power over all shares reported as beneficially owned by them. With the exception of Mr. Porter and Mr. Gerlich, the address for Geostar Corporation, Messrs. Ferguson, Lambert, Robinson, Badwi, Crow, Heysel and Kapuscinski and Ms. Sirey is 2480 W. Campus Drive, Building C, Mt. Pleasant, Michigan 48858. The address of Mr. Porter and Mr. Gerlich is 1331 Lamar Street, Suite 1080, Houston, Texas 77010.

 

The information in the following table is based upon information supplied by officers, directors, certain named individuals and principal shareholders. Applicable percentages are based on 128,811,436 common shares outstanding on August 1, 2005, subject to adjustment for each beneficial owner as described above.

 

Name of Beneficial Owner


   Number of
Common Shares
Beneficially
Owned


   Percent of
Class


 

Our 5% Owners:

           

Geostar Corporation

   12,574,565    9.8 %

Tony Ferguson (1)

   11,417,487    8.7 %

Our Officers, Directors and Certain Named Individuals:

           

J. Russell Porter, Chief Executive Officer (2)

   2,930,000    2.3 %

Michael A. Gerlich, Vice President and Chief Financial Officer (3)

   —      —    

Sara-Lane Sirey, Corporate Secretary (4)

   781,086    *  

Frederick J. Lambert, Controller (5)

   837,500    *  

Thomas E. Robinson, Chairman of the Board (6)

   14,966,499    11.4 %

Abby Badwi, Director (7)

   75,000    *  

Thomas Crow, Director (8)

   512,500    *  

Matt Heysel, Director (9)

   253,078    *  

Richard Kapuscinski, Director (10)

   371,833    *  

All officers, directors and certain named individuals as a group (9 persons)

   20,727,496    15.6 %

 * Less than 1.0%.
(1) Includes direct ownership of 6,960,000 common shares, 2,409,287 common shares beneficially owned through Geostar Corporation and stock options to purchase 2,048,200 common shares, all of which are vested or will vest within 60 days of August 1, 2005.

 

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(2) Includes direct ownership of 2,280,000 common shares and stock options to purchase 650,000 common shares, all of which are vested or will vest within 60 days of August 1, 2005. On February 17, 2004, Mr. Porter was appointed our Chief Executive Officer. From September 2000 until February 17, 2004, he served as Chief Operating Officer.
(3) Mr. Gerlich was appointed our Vice President and Chief Financial Officer in May 2005.
(4) Includes direct ownership of 368,586 common shares and stock options to purchase 412,500 common shares, all of which are vested or will vest within 60 days of August 1, 2005.
(5) Includes direct ownership of 400,000 common shares and stock options to purchase 437,500 common shares, all of which are vested or will vest within 60 days of August 1, 2005.
(6) Includes direct ownership of 9,774,658 common shares, 3,143,641 common shares beneficially owned through Geostar Corporation and stock options to purchase 2,048,200 common shares, all of which are vested or will vest within 60 days of August 1, 2005. Mr. Robinson resigned as Chief Executive Officer on February 17, 2004 but continued to hold the title of Chairman of the Board.
(7) Includes stock options to purchase 75,000 common shares, all of which are vested or will vest within 60 days of August 1, 2005.
(8) Includes direct ownership of 300,000 common shares and stock options to purchase 212,500 common shares, all of which are vested or will vest within 60 days of August 1, 2005.
(9) Includes direct ownership of 78,078 common shares and stock options to purchase 175,000 common shares, all of which are vested or will vest within 60 days of August 1, 2005.
(10) Includes direct ownership of 146,833 common shares and stock options to purchase 225,000 common shares, all of which are vested or will vest within 60 days of August 1, 2005.

 

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DESCRIPTION OF CAPITAL STOCK

 

The following description of our capital stock does not purport to be complete and is subject to, and qualified in its entirety by, our articles of incorporation and bylaws, which are exhibits to the registration statement of which this prospectus forms a part .

 

Common Shares

 

We have an unlimited number of common shares authorized under our articles of incorporation. We have no other authorized classes of capital stock.

 

As of August 1, 2005, we had outstanding 128,811,436 common shares and we had reserved 29,176,203 shares for issuance upon exercise or conversion of outstanding options, warrants and convertible securities.

 

Common Share Purchase Warrants

 

As of August 1, 2005, we had warrants outstanding to acquire 4,997,288 shares of our common stock as follows:

 

Outstanding in Connection with:


   Number of
Warrants


  

Exercise Price


   Date Granted

  

Expiration Date


$4.0 million private placement of working interests dated September 23, 2002

   2,005,027    CDN $2.35    09/23/02    09/23/05

$3.25 million private placement of 10% unsecured subordinated notes

   232,521    $2.76 - 3.03    04/20/04 - 07/12/04    04/20/09 - 07/12/09

$15.0 million private placement of 15% senior notes dated July 24, 2004

   510,525    $3.23    10/13/04    10/13/07

$10.0 million private placement of 15% senior notes dated October 7, 2004

   1,989,475    $3.63    10/13/04    10/13/07

$30.0 million private placement of 9.75% convertible senior unsecured debentures

   259,740    CDN $4.65    11/15/04 and 11/16/04    05/12/06

 

Voting Rights

 

Holders of our common shares are entitled to vote at all meetings of our shareholders, with each share having one vote.

 

Our board of directors must call an annual meeting of shareholders to be held not later than 15 months after the last preceding annual meeting of shareholders and may, at any time, call a special meeting of shareholders. For purposes of determining the shareholders who are entitled to receive notice of a meeting of shareholders, the board of directors may, in accordance with the Business Corporations Act (Alberta) and National Instrument 54-101, fix in advance a date as the record date for that determination of shareholders, but that record date may not be more than 50 days or less than 35 days before the date on which the meeting is to be held.

 

The guidelines of National Instrument 54-101 and the provisions of the Business Corporations Act (Alberta) provide that notice of the time and place of a meeting of shareholders must be sent to each shareholder entitled to vote at the meeting, each director and to our auditors, not more than 50 days and not less than 21 days prior to the meeting. Our Bylaws provide that a quorum of shareholders is present at a meeting if at least 5% of the shares entitled to vote at a meeting are present in person or by proxy. A shareholder may participate in a meeting by

 

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means of telephone or other communication facilities that permit all persons participating in the meeting to hear each other.

 

In the case of joint shareholders, one of the holders present at a meeting may, in the absence of the other holder(s) of the shares, vote the shares. If two or more joint shareholders are present in person or by proxy, then they are to vote as one on the shares held jointly by them. If there is a disagreement between joint shareholders, they are considered to have abstained from voting.

 

Amendments to Articles of Incorporation and Bylaws

 

An amendment to our articles of incorporation requires the approval of not less than two-thirds of the votes cast by the holders of our common shares at a meeting of the shareholders.

 

An amendment to our Bylaws requires the approval of not less than 51% of the votes cast by the holders of our common shares at a meeting of the shareholders.

 

Dividends

 

Our shareholders are entitled to receive such dividends and other distributions on the our common shares as the board of directors declares from time to time. Pursuant to the provisions of the Business Corporations Act (Alberta), we may not declare or pay a dividend if there are reasonable grounds for believing that (1) we are, or would after the payment be, unable to pay our liabilities as they become due or (2) the realizable value of our assets would thereby be less than the aggregate of our liabilities and stated capital of all classes. We may pay a dividend by issuing fully paid shares, or in money or property. If shares of a subsidiary or affiliate of Gastar are issued in payment of a dividend, the declared amount of the dividend stated as an amount of money will be added to the stated capital account maintained or to be maintained for shares of the class or series issued in payment of the dividend. We do not expect to pay any dividends to our shareholders for the foreseeable future, but intend to retain any future earnings for our operational and other cash needs. Further, our current senior secured notes prohibit us from paying cash dividends for so long as the notes remain outstanding.

 

No Preemption Rights; Limited Restrictions on Directors’ Authority to Issue Shares

 

Existing shareholders have no rights of preemption or first refusal under our articles of incorporation or under the laws of Alberta with respect to future issuances of our common shares. Subject to the policies of The Toronto Stock Exchange, our board of directors has the authority to issue additional common shares. The policies of The Toronto Stock Exchange stipulate that the issuance price must not be lower than the market price, less the maximum prescribed discount (which varies based on the market price), and that an exercise or conversion price of convertible securities must not be lower than the market price on the date of the issuance of the security.

 

Board of Directors; Election and Removal of Directors

 

Holders of our common shares at each annual general meeting of shareholders are required to elect directors to hold office for a term expiring not later than the close of the next annual general meeting of shareholders unless a director resigns, dies or is required to resign pursuant to a regulatory ruling (for example, if a director has violated disclosure or insider reporting provisions of the applicable securities laws and has received regulatory penalties for such violations which include prohibiting the director from serving on the board). The board of directors may fill vacancies and, as provided by our articles of incorporation, may also appoint additional directors between annual general meetings of shareholders, but the number of additional directors so appointed may not exceed the number that is one-third of the number of directors appointed at the last annual general meeting of shareholders.

 

At least half of our directors must be resident Canadians, unless we earn less than 5% of our consolidated gross revenues (as shown in our consolidated financial statements as at the end of our more recently completed

 

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financial period) in Canada, in which case at least one-third of our directors must be resident Canadians. For the fiscal year ending December 31, 2004, we derived less than 5% of our consolidated gross revenues from sources in Canada; consequently, only one-third of our directors are required to be resident Canadians.

 

Any director may convene a meeting of directors. A minimum of 48 hours notice must be given before a meeting of directors. A majority of the directors constitutes a quorum at a meeting of directors. Every resolution submitted to a meeting of directors is decided by a vote of a majority of the directors participating in the meeting and the declaration of the chairman of the meeting on the result of the vote is final. In the case of a tie vote, the chairman does not have a tie-breaking vote.

 

Conflicts of Interest

 

A director who is a party to a material contract or proposed material contract with Gastar, or who has a material interest in any person who is a party to a material contract or proposed material contract with Gastar, is required to disclose in writing to us or request to have entered in the minutes of meetings of the directors the nature and extent of his interest.

 

A director who has a material interest in a material contract or proposed material contract with Gastar cannot vote on any resolution to approve the contract unless the contract is:

 

    An arrangement by way of security for money lent to or obligations undertaken by him, or by a body corporate in which he has an interest, for the benefit of Gastar or an affiliate;

 

    A contract relating primarily to his remuneration as a director, officer, employee or agent of Gastar or an affiliate;

 

    A contract for indemnity or insurance; or

 

    A contract with an affiliate.

 

Subject to a solvency test imposed by the Business Corporations Act (Alberta) and to the U.S. securities laws described below, we may give financial assistance by means of a loan, guarantee or otherwise to:

 

    Any person on account of expenditures incurred or to be incurred on behalf of Gastar; and

 

    To employees of Gastar or any of its affiliates to enable or assist them to purchase accommodation for their occupation.

 

    In accordance with a share purchase or option scheme.

 

The fact that a person is a director does not prevent Gastar from providing him with such financial assistance if the director would otherwise qualify for it.

 

Under the U.S. securities laws, we are prohibited from directly or indirectly extending or maintaining credit, arranging for the extension of credit or renewing an extension of credit, in the form of a personal loan to or for any of the directors or executive officers of Gastar, except in certain circumstances. This prohibition does not apply to extensions of credit maintained by Gastar on July 30, 2002, but applies to any renewal or material modification of such existing credit.

 

Anti-takeover Laws

 

In Canada, takeovers are governed by provincial securities laws and the rules of applicable stock exchanges. While the rules may vary among the provinces, a party who acquires 10% of the voting or equity securities of any class of a company will generally be deemed to be an insider of that company and will, among other things, be required to file both a news release and a prescribed form with applicable provincial regulatory authorities.

 

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The purchaser (including any party acting jointly or in concert with the purchaser) will be prohibited from purchasing any additional securities of the class of the target company previously acquired for a period commencing on the occurrence of an event triggering the filing requirement and ending on the expiry of one business day following the filing. This filing process, and the associated prohibition on further acquisition, will also apply in respect of every additional 2% or more of the target company’s securities of the same class that are subsequently acquired, provided that the prohibition on further acquisition does not apply to a purchaser that owns 20% or more of the outstanding securities of that class.

 

An offer to acquire outstanding voting or equity securities of a class, where the securities subject to the offer, together with the offeror’s securities, constitute in the aggregate 20% or more of the outstanding securities of that class of securities at the date of the offer, will trigger the take-over bid provisions of applicable provincial securities legislation (and, if applicable, the rules of applicable stock exchange(s)). Unless the bid is otherwise exempt, a take-over bid will require the bidder to prepare and mail to each shareholder a circular outlining the details of the bid and instructions regarding the tendering of the target shares. While a target company will generally provide a shareholder list to a bidder, there may be circumstances in which the bidder will need to go to court to obtain one, resulting in a delay in the process. Each shareholder must be offered the same consideration for its shares and the offer must be left open for at least 35 days. Depending on the circumstances and the parties involved, valuations of the target company and its operations may be required in support of the bid.

 

In addition to the foregoing, certain other Canadian legislation may limit a Canadian or non-Canadian entity’s ability to acquire control over or a significant interest in us, including the Competition Act (Canada) and the Investment Canada Act (Canada). Issuers may also approve and adopt shareholder rights plans or other defensive tactics designed to be triggered upon the commencement of an unsolicited bid and make the company a less desirable take-over target.

 

Limitation of Liability and Indemnification

 

The Business Corporations Act (Alberta) and our bylaws provide that we will indemnify each of our directors and officers and any person who acts or acted at our request as a director or officer of a body corporate of which we are or were a shareholder or creditor, and the heirs and legal representatives of each of them, against all costs, charges and expenses reasonably incurred by such director, officer or person, and their respective heirs or legal representatives, in respect of any action or proceeding to which any of them is made a party by reason of such director, officer or person being or having served in that position, if: (1) the director, officer or person acted honestly and in good faith with a view to the best interests of us; and (2) in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, the director, officer or person had reasonable grounds for believing that his conduct was lawful. As used above, “costs, charges and expenses” includes but is not limited to the fees, charges and disbursements or legal counsel on an as-between-a solicitor-and-the-solicitor’s-own-client basis and an amount paid to settle an action or satisfy a judgment. These indemnities will continue in effect after the director or officer resigns his position or his position is terminated for any reason.

 

We have also entered into indemnification agreements with our directors and executive officers as described above in “Management—Executive Compensation—Indemnification of Officers and Directors”.

 

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling us under the indemnification arrangements described above, the SEC is of the opinion that this indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.

 

Voluntary Liquidation and Dissolution

 

If we are depleted of resources and unable to meet our liabilities and ongoing continuous disclosure obligations under the Business Corporations Act (Alberta), our directors may propose, or a shareholder who is

 

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entitled to vote at an annual general meeting of shareholders may make a proposal for the voluntary liquidation and dissolution of Gastar.

 

A company may liquidate and dissolve upon receiving the approval of the shareholders by special resolution at a meeting duly called and held. Approval of a special resolution requires the affirmative vote of not less than two-thirds of the votes cast by the shareholders present at the meeting or by proxy.

 

Upon shareholder approval of dissolution by special resolution, the company would discharge all of its liabilities and thereafter distribute all of the assets remaining, if any, pro rata to all of the shareholders of the company. Articles of Dissolution would then be sent to the Registrar appointed under the Business Corporations Act (Alberta) and the Registrar would issue a Certificate of Dissolution. The company would cease to exist on the date shown in the Certificate of Dissolution.

 

Listing

 

Our common shares are listed on The Toronto Stock Exchange under the symbol “YGA” (“YGA.TO in the U.S.) and may be traded in the United States on the over-the-counter market under the symbol, “GSREF.PK”.

 

Transfer Agent and Registrar

 

The transfer agent and registrar for our common shares are CIBC Mellon Trust Company, at its principal office in Toronto, Ontario at 200 Queen Quay East, Unit 6, Toronto, Ontario, M5A 4K9.

 

Tax Issues

 

For a discussion of the material Canadian and U.S. federal income tax considerations, including withholding provisions and applicable treaties, associated with the ownership of our common shares by U.S. residents, please see “Material Income Tax Consequences”.

 

Other Canadian Laws Affecting U.S. Shareholders

 

There are no governmental laws, decrees or regulations in Canada relating to restrictions on the export or import of capital, or affecting the remittance of interest, dividends or other payments by us to non-residents of Canada. Dividends paid to U.S. tax residents, however, are subject to a 15% withholding tax (or a 5% withholding tax for dividends if the shareholder is a corporation owning at least 10% of the outstanding voting shares of the corporation) pursuant to Article X of the reciprocal tax treaty between Canada and the United States. Please see “Material Income Tax Consequences”.

 

There are no limitations specific to the rights of non-residents of Canada to hold or vote our common shares under the laws of Canada or the Province of Alberta, or in our articles of incorporation or bylaws, other than those imposed by the Investment Canada Act (Canada) as discussed below.

 

Non-Canadian investors who acquire a controlling interest in us may be subject to the Investment Canada Act (Canada), which governs the basis on which non-Canadians may invest in Canadian businesses. Under the Investment Canada Act (Canada), the acquisition of a majority of the voting interests of an entity (or of a majority of the undivided ownership interests in the voting shares of an entity that is a corporation) is deemed to be an acquisition of control of that entity. The acquisition of less than a majority but one-third or more of the voting shares of a corporation (or of an equivalent undivided ownership interest in the voting shares of the corporation) is presumed to be acquisition of control of that corporation unless it can be established that, on the acquisition, the corporation is not controlled in fact by the acquirer through the ownership of the voting shares. The acquisition of less than one-third of the voting shares of a corporation (or of an equivalent undivided ownership interest in the voting shares of the corporation) is deemed not to be acquisition of control of that corporation.

 

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DESCRIPTION OF INDEBTEDNESS

 

Senior Secured Notes

 

On June 17, 2005, we issued senior secured notes totaling $63.0 million in principal amount, together with the issuance of 1,217,269 of our common shares in a private placement transaction. The notes are secured by substantially all of our assets, bear interest at the sum of the three-month LIBOR rate plus 6%, payable quarterly, and mature on June 18, 2010. Additionally, we agreed to issue the purchasers of the senior secured notes for no additional consideration, additional shares in increments valued at CDN$4.5 million on each of the six, twelve and eighteen-anniversaries of the closing.

 

Pursuant to the senior secured notes, we have the right, on a quarterly basis during the period from two months after closing of the initial notes to 24 months after the same date, to require the note holders to purchase up to an aggregate additional $20.0 million principal amount of additional notes. The issuance of the additional notes is contingent upon compliance with a proved plus probable reserve PV(10) (“2P PV(10)”) to net senior secured debt coverage ratio of 2.0:1 and other covenants. Under the senior secured note agreement, the PV(10) valuation is to be based on a third party independent reserve report utilizing constant pricing based on the lower of current natural gas and oil prices, adjusted for area basis differentials, or $6.00 per Mcf of natural gas and $40.00 per barrel of oil. From the first anniversary of issuance up to the second anniversary of issuance of the note, proved reserves PV(10) (“1P PV10”) to net debt must be a minimum of 1.0:1. On the second anniversary date of the note, the 1P PV(10) reserve ratio covenant increases to a minimum of 1.5:1 and it increases to 2.0:1 on the third anniversary date and for all test periods thereafter until maturity. Utilizing the same reserve pricing criteria above, the 2P PV(10) to net debt reserve maintenance ratio covenant must be a minimum of 1.5:1 from date of issuance of the notes up to the first anniversary date. On the first anniversary date of the note, the 2P PV(10) reserve ratio covenant increases to a minimum of 2.5:1, on the second anniversary to 3.0:1 and on the third anniversary and for all test periods thereafter until maturity to 3.5:1. We must maintain compliance with the reserve ratio covenant at all future quarterly and annual covenant determination dates or be subject to mandatory principal redemptions under certain conditions.

 

Our bank deposit accounts are subject to account control agreements in favor of our senior lenders that allow the senior lenders to control our cash and use it to pay interest and/or principal outstanding related to the senior secured notes.

 

Unsecured Subordinated Notes

 

On June 17, 2005, in connection with our acquisition from Geostar of additional interests in the Deep Bossier area of East Texas and the Powder River Basin, we issued in a private placement $32.0 million of unsecured, subordinated notes to Geostar. On August 11, 2005, we executed an agreement with Geostar whereby the Geostar $32.0 million unsecured subordinated note was cancelled. In conjunction with the note cancellation, we agreed to issue Geostar $17.0 million of our common shares issued at a value of CDN$3.25 and a new unsecured subordinated note for $15.0 million. The new Geostar note bears interest, payable monthly commencing February 15, 2006, at three-month LIBOR plus 4.5% and matures November 15, 2006. The note requires monthly principal payments of $1.5 million commencing February 15, 2006 and continuing for nine months thereafter with a final principal payment of $1.5 million due on November 15, 2006. We may elect to pay interest in kind through the issuance of additional notes with such notes maturing on January 15, 2007.

 

In 2004, we completed the sale of $3.25 million of unsecured, subordinated notes. The notes mature between April and September 2009 and bear interest at 10% per annum paid semi-annually. These notes are callable by us after two years at various premiums as provided in the note purchase agreement. Additionally, the subscribers were issued 232,521 warrants exercisable at prices from CDN$3.64 and CND$4.18 and expiring between April and September 2009.

 

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Convertible Debentures

 

On November 12, 2004, we issued $30.0 million aggregate principal amount of 9.75% convertible senior unsecured subordinated debentures in a private placement. The notes were issued pursuant to an indenture dated as of November 12, 2004 between Gastar and CIBC Mellon Trust Company. The net proceeds of the convertible debentures were used to accelerate our drilling in East Texas and otherwise to fund our operations.

 

The convertible debentures are payable in cash at maturity on November 20, 2009. The convertible debentures bear interest at a rate of 9.75% per annum, payable quarterly in arrears on each February 12, May 12, August 12 and November 12, commencing on February 12, 2005. The convertible debentures are convertible, in whole or in part, at the option of the holders at any time prior to the close of business on November 19, 2009 into common shares at a conversion price of $4.38 per share. Upon conversion, all accrued but unpaid interest thereon up to but not including the conversion date will be paid in cash to the surrendering holder.

 

The convertible debentures are not redeemable, in whole or in part, on or before November 13, 2006, except upon a defined change of control of us. At any time after November 13, 2006, we may redeem the convertible debentures, in whole or in part, on the terms and conditions set forth in the indenture at a redemption price equal to par plus accrued but unpaid interest thereon, provided that the weighted average price of our common shares on The Toronto Stock Exchange for any 20 consecutive trading days in any 30 consecutive 30-day period ending on the fifth trading day preceding notice of redemption is at least 130% of the conversion price then in effect.

 

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SELLING SHAREHOLDERS

 

The selling shareholders may from time to time offer and sell pursuant to this prospectus all of the common shares covered by this prospectus, including shares issuable upon exercise of warrants, conversion of the convertible debentures and pursuant to subscription receipts. The selling shareholders may not offer or sell any of the warrants, convertible debentures or subscription receipts pursuant to this prospectus.

 

This prospectus has not been filed in respect of, and will not qualify, any distribution of the common shares covered by this prospectus in any province in the territory of Canada.

 

The following table sets forth certain information concerning the number of common shares beneficially owned by each of the selling shareholders. The first numerical column sets forth the number of common shares beneficially owned by each of the selling shareholders prior to this offering, assuming the full exercise of all warrants and the conversion of all convertible debentures held by such shareholder. The second numerical column sets forth the number of common shares being offered each selling shareholder pursuant to this prospectus. The third numerical column sets forth the number of common shares to be owned by each of the selling shareholders upon completion of this offering, assuming the sale of all common shares offered by this prospectus and the percentage of the class outstanding represented by such number of common shares.

 

We prepared this table based on the information furnished to us by the selling shareholders named in the table below, and we have not sought to verify such information. This table only reflects information regarding selling shareholders who furnished such information to us. We expect that we will update this table as we receive more information from shareholders who have not yet furnished the requested information to us. Information regarding selling shareholders not named as of the date hereof and information regarding transferees of named selling shareholders will be set forth in supplements to this prospectus or, if required by applicable law, amendments to the related registration statement, in each case upon request and provision of all required information to us. Information regarding named selling shareholders may change from time to time after the date of this prospectus. Any changed information will be set forth in prospectus supplements or, if required by applicable law, amendments to the related registration statement if and when necessary. In addition, upon our being notified by a selling shareholder that a donee or pledgee intends to sell more than 500 shares, we will file a supplement to this prospectus specifically naming such donee. No offer or sale pursuant to this prospectus may be made by a shareholder unless that holder is named in the table below, in a supplement to this prospectus or, if required by applicable law, in an amendment to the related registration statement that has become effective.

 

Any or all of the common shares offered hereby may be offered for sale pursuant to this prospectus by the selling shareholders from time to time. Please see “Plan of Distribution”. Accordingly, no estimate can be given as to the amounts of common shares that will be held by the selling shareholders upon consummation of any such sales. We have assumed for purposes of the table below that all of the selling shareholders will sell all of the common shares offered hereby pursuant to this prospectus. In addition, the selling shareholders named below may have sold, transferred or otherwise disposed of, in transactions exempt from the registration requirements of the Securities Act, all or a portion of their warrants, convertible debentures and subscription receipts and the underlying common shares since the date on which the information regarding their beneficial ownership of common shares was provided to us.

 

The percentage of common shares beneficially owned upon completion of this offering is based on 128,811,436 common shares outstanding as of August 1, 2005. Except as otherwise noted, beneficial ownership is determined in accordance with Rule 13d-3 under the Exchange Act. Accordingly, a person is deemed to be the beneficial owner of securities that can be acquired by that person within 60 days from August 1, 2005 upon the exercise of warrants or options or upon the conversion of the convertible debentures. Each beneficial owner’s percentage is determined by assuming that warrants or conversion rights that are held by that person, but not those held by any other person, and which are exercisable within 60 days from August 1, 2005, have been exercised. Unless otherwise indicated and subject to community property laws where applicable, we believe that

 

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each selling shareholder has sole voting and investment power over all common shares reported as beneficially owned by such selling shareholder.

 

Except as set forth below, to our knowledge, none of the selling shareholders has, or within the past three years has had, a material relationship with us or any of our affiliates, other than their ownership of securities as described below. Unless otherwise noted, no selling shareholder would beneficially own 1% or more of the outstanding common shares following the sale of all shares offered hereunder.

 

     Number of
Common
Shares
Beneficially
Owned


   Number of
Common
Shares
Offered
Hereunder


   Number of
Outstanding Common
Shares Owned After
Completion of
Offering


E. William Richardson Trust (1)

   25,000    25,000    -0-

Mary Lou Richardson Trust (1)

   31,343    31,343    -0-

Patrick K. Magette Revocable Trust (1)

   25,500    25,500    -0-

Rappaport Gamma, LP (1)

   1,533,333    1,000,000    533,333

Donald Marquardt (1)

   50,000    50,000    -0-

Michael E. & Christine A. Pacanowsky (1)

   25,000    25,000    -0-

Edwin L. Wolff Revocable Trust (1)

   100,313    30,000    70,313

Judith S. Hart Living Trust (1)

   45,000    45,000    -0-

Robert R. & Ruth J. Fink (1)

   59,120    25,000    34,120

Pete A. & Maureen P. Botting (1)

   193,184    133,184    60,000

Monty A. & Paula S. Franssen Trust (1)

   27,900    25,000    2,900

McCulloch Revocable Trust (1)

   91,905    40,000    51,905

Leo J. & Jean E. Hertzog (1) (19)

   2,144,928    144,928    2,000,000

Kevin Coccetti (1)

   27,247    7,247    20,000

James & Nancy C. Hanna Jt. Ten (1)

   7,169    7,169    -0-

John S. Poindexter III (1)

   263,429    7,143    256,286

Matt & Sharlene Klein Trust (1)

   38,023    3,301    34,722

Dr. Jose C. Jr. MD & Tina Dominguez, Jt. Ten. (1)

   6,780    6,780    -0-

John E. & Lydia E. Oliva, Jt. Ten (1)

   6,850    6,850    -0-

The Puls Family Trust (1)

   7,143    7,143    -0-

Paul T. Hackspiel (1)

   6,994    6,994    -0-

Clifford A. Cantrell Revocable Trust (1)

   214,085    14,085    200,000

Carol A. Chaffin Revocable Trust (1)

   7,093    7,093    -0-

Ingalls & Snyder LLC (2)

   1,700,000    1,700,000    -0-

Westwind Partners Inc (3)

   237,792    237,792    -0-

Prichard Capital Partners, LLC (4)

   31,948    21,948    10,000

Donald Arthur Wright (5)

   342,466    342,466    -0-

Middlemarch Partners Limited (6)

   375,297    365,297    10,000

Sprott Asset Management Inc., for Sprott Canadian Equity Fund (6)

   324,201    324,201    -0-

Aran Asset Management SA (7)

   431,909    229,909    202,000

Global Gestion (6)

   45,662    45,662    -0-

Front Street Investment Management Inc. (6)

   73,059    73,059    -0-

North Pole Capital Master Fund (6)

   559,361    559,361    -0-

Polaris Energy Offshore Master Fund (6)

   159,817    159,817    -0-

Kings Road Investment Limited (8)

   1,569,863    1,569,863    -0-

U.S. Global Investors Global Resources Fund (9)

   1,142,466    942,466    200,000

Caerus Fund Ltd. (6) (18)

   45,662    45,662    -0-

HFTP Investment LLC (10) (18)

   2,185,426    2,185,426    -0-

Gaia Offshore Masterfund Ltd. (11) (18)

   1,132,801    1,132,801    -0-

Leonardo, LP (12)

   2,206,355    2,206,355    -0-

 

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     Number of
Common
Shares
Beneficially
Owned


   Number of
Common
Shares
Offered
Hereunder


   Number of
Outstanding Common
Shares Owned After
Completion of
Offering


Wayland Recovery Fund, LLC (13)

   440,837    440,837    -0-

Wayzata Recovery Fund, LLC (14)

   265,023    265,023    -0-

Cyrus Opportunities Fund, LP (15)

   83,469    83,469    -0-

Cyrus Opportunities Fund II, LP (16)

   356,066    356,066    -0-

Fidelity Commonwealth Trust: Fidelity Small Cap Stock Fund

   2,764,411    2,264,411    500,000

Fidelity Securities Fund: Fidelity Small Cap Value Fund

   2,359,607    1,509,607    850,000

Byron A. Adams, Jr.

   71,200    60,000    11,200

Advantage Advisors Catalyst Intl.

   18,200    15,000    3,200

Advantage Advisors Catalyst Partners LP

   24,000    20,000    4,000

Michael S. Needleman

   10,000    10,000    -0-

Ironman Energy Capital, L.P.

   280,000    280,000    -0-

Ridgecrest Partners L.P.

   3,500    3,000    500

Ridgecrest Partners Ltd

   14,400    12,000    2,400

Atlas Master Fund, Ltd

   141,509    141,509    -0-

Grey K Fund, LP

   56,604    56,604    -0-

Grey K Offshore Fund, Ltd.

   84,905    84,905    -0-

Sanford B. Prater

   20,000    20,000    -0-

Ridgecrest Partners QP, L.P.

   89,900    80,000    9,900

Nite Capital LP

   72,500    72,500    -0-

RAB Energy Fund Ltd

   300,000    300,000    -0-

Any other holder of notes or future transferee, pledgee, donee, or successor of any such holder (17)

   4,131,668    4,131,668    -0-
    
  
  

Total

   29,089,223    24,022,444    5,066,779
    
  
  

(1) Includes common shares issuable upon the exercise of warrants to purchase common shares exercisable, or upon conversion of 9.75% Convertible Senior Unsecured Debentures, within 60 days.
(2) Represents 510,525 common shares issuable upon the exercise of warrants to purchase common shares and 1,989,475 common shares issuable upon the exercise of warrants to purchase common shares, all exercisable within 60 days. The warrants to purchase 510,525 common shares were issued to Ingalls & Snyder in connection with its purchase of $15 million in 15% senior unsecured notes in June 2004. The warrants to purchase 1,989,475 common shares were issued to Ingalls & Snyder in connection with its purchase of an additional $10 million in senior unsecured notes in October 2004.
(3) Represents common shares issuable upon the exercise of warrants to purchase common shares exercisable within 60 days. These warrants to purchase common shares were issued to Westwind Partners Inc. who acted as a placement agent in connection with the Company’s issuance of its convertible senior unsecured debentures in November 2004. Westwind Partners Inc. also acted as a placement agent in connection with the Company’s private placement of common shares in June 2005.
(4) Represents common shares issuable upon the exercise of warrants to purchase common shares exercisable within 60 days. These warrants to purchase common shares were issued to Pritchard Capital Partners, LLC who acted as a placement agent in connection with the Company’s issuance of its convertible senior unsecured debentures in November 2004. Pritchard Capital Partners, LLC also acted as a placement agent in connection with the Company’s private placement of common shares in June 2005 and also received a placement fee in connection with the Company’s issuance of $63 million in senior secured notes in June 2005.
(5) Includes 342,466 common shares issuable upon the conversion of 9.75% Convertible Senior Unsecured Debentures, which are convertible within 60 days.

 

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(6) Represents common shares issuable upon the conversion of 9.75% Convertible Senior Unsecured Debentures, which are convertible within 60 days. Includes 68,493 common shares issuable upon the conversion of 9.75% Convertible Senior Unsecured Debentures, which are convertible within 60 days.
(7) Includes 79,909 common shares issuable upon the conversion of 9.75% Convertible Senior Unsecured Debentures, which are convertible within 60 days.
(8) Includes 1,369,863 common shares issuable upon the conversion of 9.75% Convertible Senior Unsecured Debentures, which are convertible within 60 days.
(9) Includes 342,466 common shares issuable upon the conversion of 9.75% Convertible Senior Unsecured Debentures, which are convertible within 60 days.
(10) Includes 684,931 common shares issuable upon the conversion of 9.75% Convertible Senior Unsecured Debentures, which are convertible within 60 days. Includes an estimated 1,172,026 common shares issuable pursuant to subscription receipts, which shares may be sold pursuant to this prospectus upon issuance.
(11) Includes 426,941 common shares issuable upon the conversion of 9.75% Convertible Senior Unsecured Debentures, which are convertible within 60 days. Includes an estimated 551,286 common shares issuable pursuant to subscription receipts, which shares may be sold pursuant to this prospectus upon issuance.
(12) Includes an estimated 1,723,312 common shares issuable pursuant to subscription receipts, which shares may be sold pursuant to this prospectus upon issuance.
(13) Includes an estimated 344,228 common shares issuable pursuant to subscription receipts, which shares may be sold pursuant to this prospectus upon issuance.
(14) Includes an estimated 207,058 common shares issuable pursuant to subscription receipts, which shares may be sold pursuant to this prospectus upon issuance.
(15) Includes an estimated 65,113 common shares issuable pursuant to subscription receipts, which shares may be sold pursuant to this prospectus upon issuance.
(16) Includes an estimated 277,813 common shares issuable pursuant to subscription receipts, which shares may be sold pursuant to this prospectus upon issuance.
(17) Information about other selling shareholders will be set forth in one or more post-effective amendments, if required. Table assumes that these other shareholders, or any future transferees, pledges, donees, or successors of or from any such other holders in the table, do not beneficially own any common shares other than in respect of the securities pursuant to which the shares covered by this prospectus are issued.
(18) Promethean Asset Management, LLC, a New York limited liability company (“Promethean”), serves as investment manager to HFTP Investment L.L.C. (“HFTP”), Gaia Offshore Master Fund, Ltd. (“Gaia”) and Caerus Fund Ltd. (“Caerus”) and may be deemed to share beneficial ownership of the securities beneficially owned by HFTP, Gaia and Caerus, as a result of Promethean’s power to vote and dispose of securities in each of HFTP, Gaia and Caerus. The ownership information for each of these three selling shareholders does not include the ownership information for the others. Promethean disclaims beneficial ownership of the securities beneficially owned by HFTP, Gaia and Caerus, and each of HFTP, Gaia and Caerus disclaims beneficial ownership of the securities beneficially owned by the others. James F. O’Brien, Jr. indirectly controls Promethean. Mr. O’Brien disclaims beneficial ownership of the securities beneficially owned by Promethean, HFTP, Gaia and Caerus.
(19) Outstanding common shares owned after completion of the offering in full would constitute 1.55% of our outstanding common shares.

 

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PLAN OF DISTRIBUTION

 

We are registering certain of our common shares that are either now outstanding or will be issued upon exercise of certain warrants, conversion of convertible debentures or the issuance of additional shares pursuant to subscription receipts issued to holders of our senior secured notes. We are also offering the opportunity to participate in the registration statement to other holders of some of our restricted securities. Shares covered in the registration will include common shares currently held by some holders and certain common shares to be issued in the future upon the exercise or conversion of our securities or pursuant to subscription receipts. We will not receive any of the proceeds of the sale of the common shares offered by this prospectus. The common shares may be sold from time to time to purchasers:

 

    Directly by the selling shareholders; or

 

    Through underwriters, broker-dealers or agents who may receive compensation in the form of discounts, concessions or commissions from the selling shareholders or the purchasers of the common shares from the selling shareholders.

 

The selling shareholders and any underwriters, brokers, dealers or agents that participate in the distribution of the common shares may be deemed to be “underwriters” within the meaning of the Securities Act, and any discounts, concessions, commissions or fees received by them and any profit on the resale of the common shares sold by them may be deemed to be underwriting discounts and commissions.

 

If the common shares are sold through underwriters or broker-dealers, the selling shareholders will be responsible for any underwriting discounts or commissions or agent’s commissions.

 

The common shares may be sold in one or more transactions at:

 

    Fixed prices;

 

    Prevailing market prices at the time of sale;

 

    Prices related to prevailing market prices;

 

    Varying prices determined at the time of sale; or

 

    Negotiated prices.

 

These sales may be affected in transactions:

 

    On any national securities exchange or quotation service on which the common shares may be listed or quoted at the time of the sale, including The Toronto Stock Exchange;

 

    In the over-the-counter market;

 

    In transactions otherwise than on such exchanges or services or in the over-the-counter market;

 

    Through the writing and exercise of options, whether these options are listed on any options exchange or otherwise;

 

    Through the settlement of short sales; or

 

    Through any combination of the foregoing.

 

These transactions may include block transactions or crosses. Crosses are transactions in which the same broker acts as an agent on both sides of the trade. In connection with sales of the common shares, the selling shareholders may enter into hedging transactions with broker-dealers. These broker-dealers may in turn engage in short sales of the common shares in the course of hedging their positions. The selling shareholders may also sell the common shares short and deliver common shares to close out short positions provided that the short sales

 

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are made after the registration statement is declared effective, or loan or pledge common shares to broker-dealers that in turn may sell the common shares.

 

To our knowledge, there are currently no plans, arrangements or understandings between any selling shareholders and any underwriter, broker-dealer or agent regarding the sale of the common shares by the selling shareholders. Selling shareholders may choose not to sell any or all of the common shares offered by them pursuant to this prospectus. In addition, we cannot assure you that any such selling shareholder will not transfer, devise or gift the common shares offered hereby by other means not described in this prospectus. Any common shares that qualify for sale pursuant to Rule 144 or Rule 144A under the Securities Act may be sold under Rule 144 or Rule 144A rather than pursuant to this prospectus. There can be no assurance that any selling shareholder will sell any or all of the common shares registered pursuant to this registration statement of which this prospectus forms a part.

 

Our common shares are listed for trading on The Toronto Stock Exchange under the symbol “YGA” and may be traded in the United States over-the-counter market under the symbol “GSREF.PK”.

 

The selling shareholders and any other person participating in such distribution will be subject to applicable provisions of the Exchange Act and the rules and regulations promulgated thereunder, including Regulation M, which may limit the timing of purchases and sales of any of common shares by the selling shareholders and any other participating person. In addition, Regulation M may restrict the ability of any person engaged in the distribution of the common shares to engage in market-making activities with respect to the common shares. This may affect the marketability of the common shares and the ability of any person or entity to engage in market-making activities with respect to common shares.

 

Pursuant to the subscription agreements with the selling shareholders who hold convertible debentures, the form of which subscription agreement is filed as an exhibit to the registration statement of which this prospectus forms a part, we may be indemnified by the selling shareholders against liabilities, including liabilities under the Securities Act, that may arise from any written information furnished to us by the selling shareholder specifically for use in this prospectus. Pursuant to the agency agreement, we will indemnify Westwind and its officers, directors, shareholders, agents, employees and advisors against certain liabilities, including some liabilities under the Securities Act, or they will be entitled to contribution. We may be indemnified by Westwind and its officers, directors, shareholders, agents, employees and advisors against certain liabilities, including liabilities that may arise under the Securities Act, in accordance with the agency agreement, or we may be entitled to contribution. We have also agreed to indemnify the selling shareholders that are holders of our senior secured notes and their officers, directors, shareholders, agents, employees and advisors against certain liabilities, including some liabilities under the Securities Act, or they will be entitled to contribution.

 

We have agreed to pay substantially all of the expenses incidental to the registration, offering and sale of the common shares covered by this prospectus to the public other than commissions, fees and discounts of underwriters, brokers, dealers and agents.

 

To comply with the securities laws of some jurisdictions, if applicable, the holders of common shares may offer and sell the common shares in such jurisdictions only through registered or licensed brokers or dealers. In addition, under certain circumstances, in some jurisdictions shares of the common shares may not be offered or sold unless they have been registered or qualified for sale in the applicable jurisdiction or an exemption from registration or qualification requirements is available and is complied with.

 

If required, at the time of a particular offering of common shares by a selling shareholder, a supplement to this prospectus will be circulated setting forth the name or names of any underwriters, broker-dealers or agents, any discounts, commissions or other terms constituting compensation for underwriters and any discounts, commissions or concessions allowed or reallowed or paid to agents or broker-dealers. We have no obligation to

 

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any selling shareholder to arrange an underwriting, or assist in providing for any proposed sale, of any of the common shares offered hereby.

 

We have agreed with some of the selling shareholders to keep the registration statement of which this prospectus forms a part effective for specified periods of time or until the occurrence of certain events. We may under certain circumstances suspend the use of this prospectus, upon notice to the selling shareholders, to update the registration statement of which this prospectus forms a part with periodic information or material non-public information as required by the Securities Act. We have agreed with some of the selling shareholders to use our reasonable efforts to limit these suspended periods to those required by the Securities Act or limit them to contractually specified limits.

 

Once sold under the registration statement of which this prospectus forms a part, the common shares will be freely tradeable in the hands of persons other than our affiliates.

 

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CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS

 

Geostar is the beneficial owner of approximately 9.8% of our common shares. Thom Robinson serves as Chairman of the Board of Directors of Gastar and is an officer and director of Geostar.

 

On June 1, 2000, we entered into an agreement with Geostar, a significant shareholder, to settle accounts payable related to the development of natural gas and oil properties with the issuance of a floating convertible debenture for up to CDN$25.0 million. Under the agreement, Geostar would continue to provide funds for development and operations by allowing us to draw down on the debenture. Advances under the debenture were subject to Geostar’s availability of funds and the approval of the requested advances by Geostar’s board of directors. The debenture was payable in cash or convertible into common shares, at prevailing market prices at our option.

 

In 2001, we entered into a Participation and Operating Agreement, or POA, with Geostar. For the East Texas properties, the POA was replaced effective January 1, 2005 with a Joint Operating Agreement, or JOA. Pursuant to the terms of the original POA, which still governs West Virginia and certain of our Australian assets, we have the option to participate as a working interest partner in properties in which Geostar and its subsidiaries have interests in on an “at cost” basis, subject to our full due diligence review prior to our participation election. Upon agreeing to participate, we are responsible for its proportionate share of actual costs expended by Geostar and its subsidiaries to third parties on an “at cost” basis. The balances of $601,000 at December 31, 2004 and $39,000 at December 31, 2003 represented amounts owed to Geostar and its subsidiaries for natural gas and oil property development. The 2003 balance was settled in 2004 by cash payment. In 2004, pursuant to the terms of the POA, Geostar billed us $27,000 (2003—$369,000) for administrative overhead.

 

In 2004, we recorded $1.3 million in general and administrative costs for administrative and technical support provided by Geostar to us. Commencing April 1, 2004, we agreed with Geostar to replace the administrative fee with a cost sharing arrangement. As a result, Geostar charged us a proportionate amount of direct salary and shared premises rent expense for Geostar employees providing administrative and technical support services to us based on actual costs incurred. This cost sharing arrangement continued as long as Geostar is the operator of the properties. This arrangement resulted in 2004 charges of approximately $146,000 per month for the second and third quarter, $150,000 per month for the fourth quarter. We incurred approximately $115,000 in 2004 ($33,000 in 2003) of seismic reprocessing fees paid to a subsidiary of Geostar. The seismic reprocessing fees were capitalized to natural gas and oil properties.

 

Effective January 1, 2005, we entered into a JOA with Geostar covering an Area of Mutual Interest (“AMI”) in East Texas, with Gastar as a non-operator and Geostar as operator. Under the terms of the JOA, Geostar received overhead reimbursement equal to 12.5% of development costs for the first 10 wells drilled after the effective date, 10% of the development costs for the 11 th through 20 th wells and 8.5% of the developments costs for all subsequent wells. As a result, Geostar no longer charges us a proportionate amount of direct salary and shared premises rent expense for Geostar employees providing administrative and technical support services to us. At March 31, 2005, Geostar billed us $1.4 million, which was equal to 12.5% of development costs for the Greer #1 and F-K #2 wells. These amounts were paid subsequent to the end of the quarter. In conjunction with the execution of the JOA, we terminated the convertible debenture arrangement with Geostar and commenced operating the East Texas properties. Under the new arrangement, we are required to find financing for our share of future joint venture costs.

 

There is a balance of $2.7 million payable to Geostar as the operator pursuant to the JOA at March 31, 2005. Of the total revenue receivable at March 31, 2005, $3.0 million (2004—$1.6 million) represents amounts that were due from Geostar as operator of the properties, once Geostar received the revenue from the third party natural gas purchaser. These amounts were settled subsequent to the end of the quarter.

 

Concurrent with the private placement of senior secured notes on June 17, 2005, we closed the acquisition from Geostar of additional leasehold and working interest properties in the Hilltop area of East Texas and in the

 

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Powder River Basin of Wyoming and Montana. We paid Geostar a total of $68.5 million for the interests acquired from Geostar consisting of $30.5 million in cash, 1,650,133 common shares valued at CDN$4.50 per share and $32.0 million in unsecured subordinated notes maturing on January 31, 2006. The acquisition increased our working interest position in the Hilltop area from an average of over 70% to an average of over 90% and gave us operational control of the properties. The acquisition of additional Powder River Basin interests increased our working interest position from approximately 17% to approximately 38% in properties currently being developed through an existing joint venture.

 

On August 11, 2005, we executed an agreement with Geostar whereby the Geostar $32.0 million unsecured subordinated note was cancelled. In conjunction with the note cancellation, we agreed to issue Geostar $17.0 million of our common shares issued at a value of CDN$3.25 and a new unsecured subordinated note for $15.0 million. The new Geostar note bears interest, payable monthly commencing February 15, 2006, at three-month LIBOR plus 4.5% and matures November 15, 2006. The note requires monthly principal payments of $1.5 million commencing February 15, 2006 and continuing for nine months thereafter with a final principal payment of $1.5 million due on November 15, 2006. We may elect to pay interest in kind through the issuance of additional notes with such notes maturing on January 15, 2007. The Board of Directors retained a qualified, independent investment banking firm to render an opinion regarding the fairness of the Geostar acquisition. The investment banking firm provided the Board of Directors with their opinion that the Geostar acquisition was fair for Gastar’s shareholders from a financial perspective.

 

All related party transactions in the normal course of operations have been measured at the agreed to exchange amounts, which is the amount of consideration established and agreed to by the related parties and which is similar to those negotiated with third parties.

 

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MATERIAL INCOME TAX CONSEQUENCES

 

A brief description of certain provisions of the tax treaty between Canada and the United States is included below, together with a brief discussion of certain taxes, including withholding provisions, to which U.S. shareholders are subject under existing laws and regulations of Canada and the United States. The consequences, if any, of state and local taxes are not considered. The following information is general and security holders should seek the advice of their own tax advisors, tax counsel or accountants with respect to the applicability or effect on their own individual circumstances of not only the matters referred to herein, but also any state or local taxes.

 

Canadian Federal Income Tax Consequences Associated with our Common Shares

 

General. The following is a summary of the principal Canadian federal income tax consequences generally applicable in respect of the ownership of our common shares. The tax consequences to any particular holder of our common shares will vary according to the status of that holder as an individual, trust, corporation or member of a partnership, the jurisdiction in which that holder is subject to taxation, the place where that holder is resident and, generally, that holder’s particular circumstances. This summary is applicable only to holders who are resident in the United States and are subject to United States tax, are not (and have never been) resident in Canada, hold their shares as capital property and do not (and will not) use or hold their shares in, or in the course of, carrying on business in Canada. For purposes of this discussion, a non-resident holder means a holder of our common shares who does not reside in Canada.

 

The following general discussion in respect of taxation is based upon management’s understanding of the rules. No opinion was requested by us, or has been provided by our counsel or auditors, with respect to the Canadian income tax consequences described in the following discussion.

 

Dividend Withholding . We have not paid dividends on our common shares in any of the past three years and have no plans to pay dividends in the foreseeable future. Canadian federal tax legislation would require a 25% withholding from any dividends paid or deemed to be paid to our non-resident shareholders. However, shareholders resident in the United States and subject to United States tax would generally have this rate reduced to 15% pursuant to the tax treaty between Canada and the United States. The withholding tax rate on the gross amount of dividends is reduced to 5% if the beneficial owner of the dividend is a U.S. corporation which owns at least 10% of our voting stock.

 

The amount of stock dividends paid to non-residents of Canada would be subject to withholding tax at the same rate as cash dividends. The amount of a stock dividend (for tax purposes) would generally be equal to the amount by which our paid-up capital had increased by reason of the payment of such dividend. We will furnish additional tax information to shareholders in the event of such a stock dividend.

 

Capital Gains . A non-resident who holds common shares as capital property generally will not be subject to Canadian taxes on capital gains realized on the disposition of such shares unless the shares are “taxable Canadian property” within the meaning of the Income Tax Act (Canada), and no relief is afforded under any applicable tax treaty. Common shares generally will not be taxable Canadian property of a shareholder of us unless, at any time during the five-year period immediately preceding a disposition of such shares, not less than 25% of the issued shares of any class or series of our capital stock belonged to persons with whom the shareholder did not deal at arm’s length, or to the shareholder together with such persons or unless the shares were acquired by the holder in one of several tax deferred exchanges for shares which were themselves taxable Canadian property.

 

A non-resident shareholder whose common shares constitute taxable Canadian property and who is a resident of the United States for purposes of the tax treaty between Canada and the United States generally would be exempt from Canadian tax on any capital gain realized on a disposition of those shares in any event, provided the shares do not derive their value primarily from Canadian real property (including Canadian resource

 

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properties). Management is of the view that common shares do not derive their value primarily from Canadian real property.

 

United States Federal Income Tax Consequences Associated with our Common Stock

 

The following is a general discussion of certain U.S. federal income tax consequences that may apply to a holder of our common shares. This discussion is based on the Internal Revenue Code of 1986, as amended, which we refer to as the Code, Treasury Department regulations promulgated under the Code, published Internal Revenue Service, or IRS, rulings, published administrative positions of the IRS, and court decisions that are currently applicable, any or all of which could materially and adversely change at any time, possibly on a retroactive basis. In addition, the discussion does not consider the potential effects, both adverse and beneficial, of any proposed legislation which, if enacted, could be applied at any time, possibly on a retroactive basis. The following discussion is not intended to be, nor should it be construed to be, legal or tax advice to any holder or prospective holder of our common shares. No opinion was requested by us, or is provided by our counsel, with respect to the U.S. federal income tax consequences described in the following discussion. Accordingly, holders and prospective holders of our common shares should consult their own tax advisors about the U.S. federal, state, local and Non-U.S. tax consequences of purchasing, owning and disposing of our common shares.

 

United States Federal Income Taxation of U.S. Holders. As used in this discussion, a “U.S. Holder” means a holder of our common shares who is (1) a citizen or individual resident of the United States, (2) a corporation or entity taxable as a corporation for U.S. federal income tax purposes that is created or organized in or under the laws of the United States or of any political subdivision thereof or the District of Columbia, (3) an estate whose income is taxable in the United states irrespective of source or (4) a trust if a court within the United States is able to exercise primary jurisdiction over the administration of the trust and one or more United States persons have the authority to control all substantial decisions of the trust.

 

This summary does not address the tax consequences to, and U.S. Holder does not include, persons subject to specific provisions of federal income tax law, such as tax-exempt organizations, qualified retirement plans, individual retirement accounts and other tax-deferred accounts, financial institutions, insurance companies, real estate investment trusts, regulated investment companies, broker-dealers, persons or entities that have a “functional currency” other than the U.S. Dollar, shareholders subject to the alternative minimum tax, shareholders who hold our common shares as part of a straddle, hedging or a conversion transaction, constructive sale or other arrangement involving more than one position, partners and other pass-through entities and persons holding an interest in such entities, and shareholders who acquired their common shares through the exercise of employee stock options or otherwise as compensation for services. This summary is limited to U.S. Holders who own our common shares as capital assets (generally, property held for investment). This summary does not address the consequences to a person or entity holding an interest in a shareholder or the consequences to a person of the ownership, exercise or disposition of any options, warrants or other rights to acquire our common shares. If a partnership (including an entity treated as a partnership for U.S. federal income tax purposes) holds our common shares, the tax treatment of a partner generally will depend upon the status of the partner and upon the activities of the partnership. If you are a partnership, or a partner in a partnership, holding common shares, you should consult your tax advisor.

 

Distributions on Our Common Shares. We have never paid any cash dividends on our common shares and do not anticipate paying any cash dividends in the foreseeable future. However, if U.S. Holders receive dividend distributions (including constructive dividends) with respect to our common shares such holders would be required to include in gross income for U.S. federal income tax purposes the gross amount of such distributions equal to the U.S. Dollar value of such distributions on the date of receipt (based on the exchange rate on such date) to the extent that we have current or accumulated earnings and profits, without reduction for any Canadian income tax withheld from such distributions. Such Canadian tax withheld may be credited, subject to certain limitations, against the U.S. Holder’s U.S. federal income tax liability or, alternatively, may be deducted in computing the U.S. Holder’s U.S. federal taxable income by those who itemize deductions. See “Foreign Tax

 

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Credit”, below. To the extent that distributions exceed our current or accumulated earnings and profits, they will be treated first as a return of capital up to the U.S. Holder’s adjusted basis in our common shares (and not subject to tax) and thereafter as gain from the sale or exchange of the common shares (which is taxable as capital gain). Subject to certain exceptions, dividends paid on our common shares generally will not be eligible for the dividends-received deduction available to corporations receiving dividends from certain United States corporations.

 

Dividends , if any, paid on our common shares to a U.S. Holder who is an individual, trust or estate (a “U.S. Individual Holder”) will be treated as “qualified dividend income” that is taxable to such U.S. Individual Holder at preferential rates (through 2008) provided that (i) we are eligible for the benefits of a comprehensive income tax treaty with the United States that has been determined to be satisfactory for this purpose (the U.S.-Canadian Treaty is included for this purpose); (ii) we are not a passive foreign investment company or “PFIC” for the taxable year during which the dividend is paid or the immediately preceding taxable year (which we do not believe we are or have been or will be); (iii) the U.S. Individual Holder has owned the common shares for more than 60 days in the 121-day period beginning 60 days before the date on which the common shares become ex-dividend; and (iv) the U.S. Individual Holder is not under an obligation to make related payments with respect to positions in substantially similar or related property.

 

Special rules may apply to any “extraordinary dividend” paid by us. An extraordinary dividend is, generally, a dividend equal to or in excess of 10 percent of a shareholder’s adjusted basis (or fair market value in certain circumstances) in a share of common stock. If we pay an “extraordinary dividend” on our common shares that is treated as “qualified dividend income”, then any loss derived by a U.S. Individual Holder from the sale or exchange of common shares will be treated as long-term capital loss to the extent of such dividend.

 

Foreign Tax Credit. A U.S. Holder who pays (or has withheld from distributions) Canadian income tax with respect to the ownership of our common shares may be entitled, at his or her option, to either a deduction or a tax credit for such foreign tax paid or withheld. Furthermore, a U.S. Holder that is a domestic corporation that owns 10% or more of our voting stock may be eligible to claim a deemed paid foreign tax credit based on the underlying non-U.S. income taxes paid by us. Generally, it will be more advantageous to claim a credit because a credit reduces U.S. federal income taxes on a dollar-for-dollar basis, while a deduction merely reduces the taxpayer’s income subject to tax. This election is made on a year-by-year basis and applies to all foreign income taxes (or taxes in lieu of income tax) paid by (or withheld from) the U.S. Holder during the year.

 

There are significant and complex limitations which apply to the foreign tax credit, among which is the general limitation that the credit cannot exceed the proportionate share of the U.S. Holder’s U.S. federal income tax liability that the U.S. Holder’s foreign source income bears to his or her or our worldwide taxable income. There are further limitations based on the type of income. In addition, any foreign tax credits may also be subject to special treaty limitations. The availability of the foreign tax credit, the deemed paid foreign tax credit, and the application of the limitations on the credit are fact-specific and holders and prospective holders of our common shares should consult their own tax advisors regarding their individual circumstances.

 

Sale, Exchange or other Disposition of Common Shares. Assuming we do not constitute a PFIC for any taxable year, a U.S. Holder generally will recognize taxable gain or loss upon a sale, exchange or other disposition of our common shares in an amount equal to the difference between the amount realized by the U.S. Holder from such sale, exchange or other disposition and the U.S. Holder’s tax basis in such shares. Subject to the discussion of extraordinary dividends above, such gain or loss will be treated as long-term capital gain or loss if the U.S. Holder’s holding period is greater than one year at the time of the sale, exchange or other disposition. Preferential tax rates for long term capital gains may apply to certain U.S. Holders who satisfy minimum holding period and other requirements. There are currently no preferential tax rates for long term capital gains for any U.S. Holder that is a corporation. A U.S. Holder’s ability to deduct capital losses is subject to certain limitations.

 

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Special Rules. In the following circumstances, the above sections of the discussion may not describe the U.S. federal income tax consequences resulting from the holding, receipt of dividends and disposition of common shares. Management does not believe that we are a “PFIC”, or a “controlled foreign corporation” as those terms are defined below.

 

Passive Foreign Investment Company. A non-U.S. entity treated a corporation for U.S. federal income tax purposes will be a PFIC in any taxable year in which, after taking into account the income and assets of the corporation and certain subsidiaries pursuant to a “look through” rule, either (i) 75% or more of its gross income is “passive income” such as interest, dividends and certain rents and royalties or (2) at least 50% of the average value of its assets is attributable to assets that produce passive income or are held for the production of passive income. Management does not believe that we are a PFIC, or will be a PFIC in the future, because we are engaged primarily in the business of a natural gas and oil exploration and development. We have not received 75% or more of our gross income from passive sources, nor has 50% or more of the fair market value of our assets been held for the production of passive income. The taxation of a U.S. shareholder who owns stock in a PFIC is extremely complex and is beyond the scope of this discussion. U.S. persons should consult with their own tax advisors regarding the impact of these rules if we are or were to become a PFIC.

 

Controlled Foreign Corporation. A controlled foreign corporation or CFC is a foreign corporation more than 50% of the stock of which, by vote or value, is owned, directly, indirectly or constructively, by one or more U.S. shareholders who each owns, directly, indirectly or constructively, 10% or more of the total combined voting power of all classes of stock of the foreign corporation (each a “CFC Shareholder”). If we are a CFC, a CFC Shareholder would be treated as receiving current distributions of an allocable share of certain types of income. Additionally, such a CFC Shareholder would recognize ordinary income to the extent of an allocable share of our earnings and profits, rather than capital gain, on the sale of his or her common shares. Management does not believe that we are a CFC because shareholders who directly, indirectly or constructively control 10% or more of the total voting power of our outstanding common shares do not own more than 50% of our common shares.

 

United States Federal Income Taxation of Non-U.S. Holders. For purposes of this discussion, a beneficial owner of our common shares that is not a U.S. Holder (other than a partnership or entity treated as a partnership for U.S. federal income tax purposes) is a Non-U.S. Holder.

 

Distributions on our Common Shares. Distributions we pay to a Non-U.S. Holder will not be subject to U.S. federal income tax or withholding tax if the Non-U.S. Holder is not engaged in a U.S. trade or business. If the Non-U.S. Holder is engaged in a U.S. trade or business, distributions we pay will be subject to U.S. federal income tax at regular graduated rates if those distributions are effectively connected with that Non-U.S. Holder’s U.S. trade or business and, if an income tax treaty applies, are attributable to a permanent establishment maintained by that Non-U.S. Holder in the United States. In addition, a “branch profits tax” may be imposed at a 30% rate, or a lower rate under an applicable income tax treaty, on dividends received by a non-U.S. corporation that are effectively connected with its conduct of a trade or business in the United States.

 

Sale, Exchange or other Disposition of Common Shares. Non-U.S. Holders generally will not be taxed on any gain recognized on a disposition of our common stock unless the gain is effectively connected with the Non-U.S. Holder’s conduct of a trade or business in the United States and, if an income tax treaty applies, is attributable to a permanent establishment maintained by the non-U.S. holder in the United States. If the Non-U.S. Holder is engaged in a U.S. trade or business and the gain is effectively connected with that trade or business (and if a tax treaty applies, is attributable to a permanent establishment maintained by such Non-U.S. Holder in the United States), such gain will be subject to U.S. federal income tax at regular graduated rates and, if the Non-U.S. Holder is a corporation, the branch profits tax described above may also apply. A Non-U.S. Holder who is an individual and who is present in the United States for 183 days or more in the taxable year of the disposition and meets other requirements also will be subject to U.S. federal income tax on gain recognized on a disposition of our common stock.

 

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Information Reporting and Backup Withholding Tax. In general, dividend payments or other taxable distributions made within the United States will be subject to information reporting and U.S. backup withholding tax if a U.S Individual Holder fails to provide an accurate taxpayer identification number certified under penalties of perjury, as well as certain other information or otherwise establish an exemption from backup withholding.

 

Non-U.S. Holders may be required to establish their exemption from information reporting and backup withholding by certifying their status on an IRS Form W-8BEN, W-8ECI or W-8IMY as applicable.

 

If a Non-U.S. Holder sells shares to or through the U.S. office of a U.S. or foreign broker, the payment of the proceeds generally will be subject to information reporting requirements and backup withholding unless the Non-U.S. Holder properly certifies its non-U.S. status under penalties of perjury or otherwise establishes an exemption. Information reporting requirements and backup withholding generally will not apply to any payment of the proceeds of the sale of common shares affected outside the United States by a foreign office of a broker. However, U.S. information reporting requirements (but not backup withholding requirements) will apply to payment of the sales proceeds if the broker is a United States person or has certain other contacts with the United States.

 

Backup withholding is not an additional tax. Rather, a holder generally may obtain a refund of any amounts withheld under the backup withholding rules that exceed such holder’s U.S. federal income tax liability by timely filing a properly completed claim for refund with the U.S. Internal Revenue Service.

 

LEGAL MATTERS

 

The validity of the common shares offered by this prospectus will be passed upon for us by Burnet, Duckworth & Palmer LLP.

 

EXPERTS

 

Our consolidated financial statements as of and for each of the three years in the period ended December 31, 2004 included in this prospectus have been audited by BDO Dunwoody LLP, chartered accountants, as stated in their report appearing herein and elsewhere in this registration statement, and have been so included in reliance upon the report of such firm given upon their authority as experts in auditing and accounting.

 

Information included in this prospectus regarding our estimated quantities of natural gas and oil reserves were prepared by us. Our proved reserve estimates as of December 31, 2004, 2003 and 2002 included in this prospectus were prepared by Netherland, Sewell & Associates, Inc., independent petroleum engineers.

 

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WHERE YOU CAN FIND MORE INFORMATION

 

We have filed with the SEC a registration statement on Form S-1 regarding the common shares. This prospectus does not contain all of the information found in the registration statement. For further information regarding us and the common shares offered by this prospectus, you may desire to review the full registration statement, including its exhibits. The registration statement, including the exhibits, may be inspected and copied at the public reference facilities maintained by the SEC at 100 F Street, N.E, Room 1580, Washington, D.C. 20549. Copies of this material can also be obtained upon written request from the Public Reference Section of the SEC at 100 F Street, N.E, Room 1580, Washington, D.C. 20549, at prescribed rates or from the SEC’s web site on the Internet at http://www.sec.gov. Please call the SEC at 1-800-SEC-0330 for further information on public reference rooms.

 

As a result of the offering, we will file with or furnish to the SEC periodic reports and other information. These reports and other information may be inspected and copied at the public reference facilities maintained by the SEC or obtained from the SEC’s website as provided above. Our website on the Internet is located at http://www.gastar.com and we expect to make our periodic reports and other information filed with or furnished to the SEC available, free of charge, through our website, as soon as reasonably practicable after those reports and other information are electronically filed with or furnished to the SEC. Information on our website or any other website is not incorporated by reference into this prospectus and does not constitute a part of this prospectus.

 

We intend to furnish or make available to our shareholders annual reports containing our audited financial statements prepared in accordance with U.S. GAAP. We also intend to furnish or make available to our shareholders quarterly reports containing our unaudited interim financial information, including the information required by Form 10-Q, for the first three fiscal quarters of each fiscal year.

 

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GASTAR EXPLORATION LTD.

 

INDEX TO FINANCIAL STATEMENTS

 

     Page

CONSOLIDATED FINANCIAL STATEMENTS FOR THE FISCAL YEARS ENDED DECEMBER 31, 2004, 2003 AND 2002

    

Report of Independent Registered Public Accounting Firm

   F-2

Consolidated Balance Sheets as of December 31, 2004 and 2003 and as of March 31, 2005

   F-3

Consolidated Statements of Operations for the years ended December 31, 2004, 2003 and 2002 and the three months ended March 31, 2005 and 2004

   F-4

Consolidated Statements of Changes in Shareholders’ Equity and Comprehensive Loss for the years ended December 31, 2004, 2003 and 2002

   F-5

Consolidated Statements Changes Shareholders’ Equity and Comprehensive Loss for the three months ended March 31, 2005 and 2004

   F-6

Consolidated Statements of Cash Flows for the years ended December 31, 2004, 2003 and 2002 and the three months ended March 31, 2005 and 2004

   F-7

Notes to Consolidated Financial Statements

   F-8-39

 

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REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

To the Board of Directors of Gastar Exploration Ltd.

 

We have audited the accompanying consolidated balance sheets of Gastar Exploration Ltd. and subsidiaries (the “Company”) as of December 31, 2004 and 2003 and the related consolidated statements of operations, stockholders’ equity and comprehensive loss and cash flows for each of the three years in the period ended December 31, 2004. These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these financial statements based on our audits.

 

We conducted our audits in accordance with the Standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. Our audits included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion. An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.

 

In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of Gastar Exploration Ltd. and subsidiaries at December 31, 2004 and 2003 and the consolidated results of their statements of loss, stockholders’ equity and comprehensive loss and cash flows for each of the three years in the period ended December 31, 2004, in conformity with accounting principles generally accepted in the United States of America.

 

As discussed in Note 2, the Company, effective January 1, 2003, adopted SFAS No. 143 regarding asset retirement obligation recognition.

 

BDO Dunwoody LLP

 

Calgary, Alberta

March 18, 2005 (August 11, 2005 as to Note 21)

 

 

The accompanying notes are an integral part of these consolidated financial statements

 

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GASTAR EXPLORATION LTD.

 

CONSOLIDATED BALANCE SHEETS

 

     As of
March 31,
2005


    As of December 31,

 
       2004

    2003

 
     (unaudited)              
     (in thousands)  

Assets

                        

Current

                        

Cash

   $ 4,546     $ 15,842     $ 681  

Revenue receivable (Note 16(c))

     3,198       1,693       —    

Accounts receivable

     26       38       237  

Prepaid expenses

     177       307       157  

Current portion of deferred charges (Note 5)

     170       238       —    
    


 


 


       8,117       18,118       1,075  

Deferred charges (Note 5)

     3,155       3,442       400  

Cash call receivable (Note 3)

     5,339       6,318       1,220  

Property and equipment (Note 4)

     63,459       56,564       35,799  

Site restoration bond

     —         —         263  
    


 


 


     $ 80,070     $ 84,442     $ 38,757  
    


 


 


Liabilities and Shareholders’ Equity

                        

Current

                        

Accounts payable and accrued liabilities

   $ 2,144     $ 1,197     $ 600  

Accounts payable – joint venture partner (Note 16(c))

     2,673       601       —    

Commitments payable (Note 18(f) and (g))

     —         —         1,343  

Current portion of contract payable (Note 6)

     —         —         1,000  

Current portion of convertible notes (Note 8)

     —         —         1,552  
    


 


 


       4,817       1,798       4,495  

Long Term

                        

Accrued liability (Note 5(b))

     77       77       —    

Drilling advances liability (Note 9)

     —         1,002       3,008  

Senior notes (Note 11)

     24,989       24,840       —    

Subordinated, unsecured notes payable (Note 10)

     3,050       3,038       —    

Convertible notes (Note 8)

     30,000       30,000       —    

Asset retirement obligation (Note 7)

     1,980       1,711       984  
    


 


 


       64,913       62,466       8,487  
    


 


 


Debt to be Settled by the Issuance of Shares

                        

Due to related party (Notes 16(a))

     —         —         39  

Convertible notes (Note 8)

     —         —         6,562  
    


 


 


       —         —         6,601  
    


 


 


Commitments and Contingencies (Note 18)

                        

Shareholders’ Equity

                        

Common stock (Note 13)

     49,804       49,780       40,071  

Additional paid-in capital (Note 14)

     2,167       1,374       —    

Other comprehensive loss

     (95 )     (95 )     (95 )

Deficit

     (36,719 )     (29,083 )     (16,307 )
    


 


 


       15,157       21,976       23,669  
    


 


 


     $ 80,070     $ 84,442     $ 38,757  
    


 


 


 

The accompanying notes are an integral part of these consolidated financial statements

 

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GASTAR EXPLORATION LTD.

 

CONSOLIDATED STATEMENTS OF OPERATIONS

 

   

For the Three Months

Ended March 31,


    For the Years Ended December 31,

 
    2005

    2004

    2004

    2003

    2002

 
    (unaudited)                    
    (in thousands, except share and per share data)  

Revenues

  $ 4,731     $ 356     $ 6,059     $ 1,461     $ 783  

Expenses

                                       

Depletion, depreciation and amortization

    2,690       176       3,233       572       360  

Impairment of natural gas and oil properties

    4,410       —         6,306       552       377  

Interest and debt related items
(Note 12)

    2,153       419       3,248       2,567       2,043  

Accretion on asset retirement obligation (Note 7)

    19       13       52       54       —    

Mineral resource properties

    29       31       32       30       1  

Lease operating, transportation and selling

    1,315       211       2,000       712       769  

General and administrative

    1,765       167       4,023       1,909       1,933  
   


 


 


 


 


Net loss before other items

    (7,650 )     (661 )     (12,835 )     (4,935 )     (4,700 )
   


 


 


 


 


Other items

                                       

Investment income and other

    40       4       56       18       17  

Foreign exchange gain (loss)

    (26 )     (13 )     3       91       84  
   


 


 


 


 


      14       (9 )     59       109       101  
   


 


 


 


 


Net loss before income taxes and cumulative effect of change in accounting principle

    (7,636 )     (670 )     (12,776 )     (4,826 )     (4,599 )

Provision for income taxes
(Note 17)

    —         —         —         —         —    
   


 


 


 


 


Net loss before cumulative effect of change in accounting principle

    (7,636 )     (670 )     (12,776 )     (4,826 )     (4,599 )

Cumulative effect of change in accounting principle, net of tax ($nil) (Note 2(p))

    —         —         —         (121 )     —    
   


 


 


 


 


Net loss

  $ (7,636 )   $ (670 )   $ (12,776 )   $ (4,947 )   $ (4,599 )
   


 


 


 


 


Loss per share (Note 15)

                                       

Net loss per share before cumulative effect of change in accounting principle (basic and diluted)

  $ (0.067 )   $ (0.006 )   $ (0.115 )   $ (0.046 )   $ (0.047 )

Net loss per share (basic and diluted)

  $ (0.067 )   $ (0.006 )   $ (0.115 )   $ (0.047 )   $ (0.047 )

Weighted average shares outstanding

                                       

Basic and diluted

    113,788,198       107,265,493       111,374,446       104,958,180       98,617,920  

 

The accompanying notes are an integral part of these consolidated financial statements

 

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GASTAR EXPLORATION LTD.

 

CONSOLIDATED STATEMENTS OF CHANGES IN SHAREHOLDERS’ EQUITY AND COMPREHENSIVE LOSS

 

   

Shares

Issued


    Common
Stock


    Additional
paid-in
capital


  Other
Comprehensive
(loss)


    Retained
Deficit


    Total
Shareholders’
Equity


 
    (in thousands, except share data)  

For the Years Ended
December 31, 2002, 2003 and 2004:

                                           

Balance at December 31, 2002

  103,068,293     $ 33,813     $ —     $ (23 )   $ (11,360 )   $ 22,430  

Repurchase of shares (Note 13(c))

  (1,391,500 )     (450 )     —       —         —         (450 )

Settlement of debenture (Note 13(b))

  5,206,100       8,399       —       —         —         8,399  

Share cancellation costs

  —         (1,691 )     —       —         —         (1,691 )
   

 


 

 


 


 


    106,882,893       40,071       —       (23 )     (11,360 )     28,688  
   

 


 

 


 


 


Comprehensive loss:

                                           

Net loss

  —         —         —       —         (4,947 )     (4,947 )

Foreign currency translation loss

  —         —         —       (72 )     —         (72 )
   

 


 

 


 


 


Total comprehensive loss

  —         —         —       (72 )     (4,947 )     (5,019 )
   

 


 

 


 


 


Balance at December 31, 2003

  106,882,893       40,071       —       (95 )     (16,307 )     23,669  

Repurchase of shares (Note 13(c))

  (340,000 )     (888 )     —       —         —         (888 )

Conversion of convertible debenture (Note13(d))

  6,847,215       8,181       —       —         —         8,181  

Share cancellation costs

  —         (6 )     —       —         —         (6 )

Issuance of share purchase warrants (Note13(f))

  —         2,422       —       —         —         2,422  

Contributed surplus

  —         —         1,374     —         —         1,374  
   

 


 

 


 


 


    113,390,108       49,780       1,374     (95 )     (16,307 )     34,752  

Net loss

  —         —         —       —         (12,776 )     (12,776 )
   

 


 

 


 


 


Balance at December 31, 2004

  113,390,108     $ 49,780     $ 1,374   $ (95 )   $ (29,083 )   $ 21,976  
   

 


 

 


 


 


 

 

The accompanying notes are an integral part of these consolidated financial statements

 

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GASTAR EXPLORATION LTD.

 

CONSOLIDATED STATEMENTS OF CHANGES IN SHAREHOLDERS’ EQUITY AND COMPREHENSIVE LOSS

 

   

Shares

Issued


    Common
Stock


    Additional
paid-in
capital


  Other
Comprehensive
(loss)


    Retained
Deficit


    Total
Shareholders’
Equity


 
    (in thousands, except share data)  

For the Three Months Ended March 31, 2004 and 2005 (Unaudited):

                                           

Balance at December 31, 2003

  106,882,893     $ 40,071     $ —     $ (95 )   $ (16,307 )   $ 23,669  

Repurchase of shares

  (158,800 )     (58 )     —       —         —         (58 )

Conversion of convertible debenture

  6,099,999       6,710       —       —         —         6,710  

Share cancellation costs

  —         (344 )     —       —         —         (344 )
   

 


 

 


 


 


    112,824,092       46,379             (95 )     (16,307 )     29,977  

Net loss

  —         —         —       —         (670 )     (670 )
   

 


 

 


 


 


Balance at March 31, 2004

  112,824,092     $ 46,379     $ —     $ (95 )   $ (16,977 )   $ 29,307  
   

 


 

 


 


 


Balance at December 31, 2004

  113,390,108     $ 49,780     $ 1,374   $ (95 )   $ (29,083 )   $ 21,976  

Stock options exercised, cash

  127,500       24       —       —         —         24  

Stock options exercised,
non-cash

  1,012,500       1,012       —       —         —         1,012  

Stock options cancelled in lieu of non-cash exercise

  (332,175 )     (1,012 )     —       —         —         (1,012 )

Contributed surplus

  —         —         793     —         —         793  
   

 


 

 


 


 


    114,197,933       49,804       2,167     (95 )     (29,083 )     22,793  

Net loss

  —         —         —       —         (7,636 )     (7,636 )
   

 


 

 


 


 


Balance at March 31, 2005

  114,197,933     $ 49,804     $ 2,167   $ (95 )   $ (36,719 )   $ 15,157  
   

 


 

 


 


 


 

 

 

The accompanying notes are an integral part of these consolidated financial statements

 

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Gastar Exploration Ltd.

 

Consolidated Statements of Cash Flows

 

    For the Three Months
Ended March 31,


    

For the Years Ended

December 31,


 
    2005

     2004

     2004

     2003

     2002

 
    (unaudited)                       
    (in thousands)  

Cash flows from operating activities:

                                           

Net loss

  $ (7,636 )    $ (670 )    $ (12,776 )    $ (4,947 )    $ (4,599 )

Adjustments to reconcile net loss to net cash provided by (used in) operating activities:

                                           

Depletion, depreciation and amortization

    2,690        176        3,233        572        360  

Impairment of natural gas and oil properties

    4,410        —          6,306        552        377  

Amortization of deferred lease cost

    68        —          33        —          —    

Cumulative effect of a change in accounting principle

    —          —          —          121        —    

Stock compensation expense

    793        —          1,374        —          —    

Interest and debt related items

    447        242        2,291        1,363        1,089  

Accretion expense on asset retirement obligation (Note 7)

    19        13        52        54        —    

Other

    (2 )      —          —          —          —    

Changes in operating assets and liabilities:

                                           

Accounts receivable

    (1,493 )      (162 )      (1,494 )      (179 )      166  

Prepaid expenses

    130        7        (716 )      (45 )      (27 )

Accounts payable and accrued liabilities

    947        (268 )      575        62        1,682  

Foreign exchange

    (1 )      (6 )      (5 )      (80 )      (36 )
   


  


  


  


  


Net cash provided by (used in) operating activities

    372        (668 )      (1,127 )      (2,527 )      (988 )
   


  


  


  


  


Cash flows from investing activities:

                                           

Cash call receivable (Note 3)

    979        1,220        (5,098 )      (1,220 )      —    

Development and purchases of oil and gas properties (Note 4)

    (8,266 )      (1,314 )      (16,611 )      (4,763 )      (8,050 )

Sale of oil and gas properties (Note 4)

    1        3,000        3,000        8,618        —    

Purchase (sale) of furniture, equipment and other

    (91 )      —          (2 )      —          4  

Site restoration bond purchase (cancellation)

    —          —          263        30        (56 )

Foreign exchange

    2        —          1        —          (25 )
   


  


  


  


  


Net cash provided by (used in) investing activities

    (7,375 )      2,906        (18,447 )      2,665        (8,127 )
   


  


  


  


  


Cash flows from financing activities:

                                           

Repayments of contract payable

    —          (688 )      (688 )      —          (1,000 )

Repayment of commitments payable

    —          —          (1,342 )      —          —    

Repayment of convertible notes payable

    —          —          (100 )      —          —    

Proceeds from (repayment) of note payable

    —          —          —          (630 )      630  

Proceeds from issuance of convertible notes payable

    —          —          30,000        —          7,481  

Proceeds from drilling advances

    —          —          —          —          4,010  

Proceeds from issuance of senior notes

    —          —          25,000        —          —    

Proceeds from issuance of subordinated, unsecured notes payable

    —          —          3,250        —          —    

Accounts payable – joint venture partner

    (4,319 )      —          (17,649 )      3,054        —    

Debt issue costs

    —          —          (2,846 )      —          (693 )

Proceeds from issuance of common shares, net of share issue costs

    24        —          —          —          —    

Repurchase of common stock

    —          (403 )      (894 )      (2,141 )      (1,926 )

Foreign exchange

    2        —          —          —          -—    
   


  


  


  


  


Net cash provided by (used in) financing activities

    (4,293 )      (1,091 )      34,731        283        8,502  
   


  


  


  


  


Increase (decrease) in cash

    (11,296 )      1,147        15,157        421        (613 )

Foreign exchange gain on cash held in foreign currency

    —          —          4        4        7  

Cash, beginning of period

    15,842        681        681        256        862  
   


  


  


  


  


Cash, end of period

  $ 4,546      $ 1,828      $ 15,842      $ 681      $ 256  
   


  


  


  


  


Cash paid during the period for:

                                           

Interest

  $ 898      $ 383      $ 600      $ 1,272      $ 772  

Income taxes

  $ —        $ —        $ —        $ —        $ —    

 

The accompanying notes are an integral part of these consolidated financial statements

 

F-7


Table of Contents
Index to Financial Statements

GASTAR EXPLORATION LTD.

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

1. Business and Basis of Presentation

 

These consolidated financial statements represent the consolidated statements for First Sourcenergy Wyoming, Inc. (“FSW”) since February 29, 2000, the date it commenced operations. During 2000, FSW completed a reverse takeover (“RTO”) of CopperQuest Inc and this transaction was accounted for as a recapitalization of FSW. Effective May 16, 2000, CopperQuest Inc. changed its name to Gastar Exploration Ltd. (“the Company” or “Gastar”).

 

The Company’s principal business activities include the selection, acquisition, exploration and development of oil and gas properties. The Company continues to incur losses and has significant cash flow requirements in order to continue the process of exploring and developing its oil and gas properties.

 

The Company and a significant shareholder of the Company, Geostar Corporation (“Geostar” for the corporation and its subsidiaries), are partners to a signed Participation and Operating Agreement (“POA”). Pursuant to the terms of this POA, Geostar acquires in arms-length transactions properties from various third parties on behalf of itself and Gastar. Following successful due diligence, Gastar has the right to participate in up to a 75% interest in any Geostar properties that may be acquired under this POA on an “at cost” basis. As detailed in Note 16(b) Geostar has also provided a convertible debenture to the Company with the intent to provide up to CDN $25 million in funds for continued operations and to help develop the Company’s oil and gas properties. Advances under the debenture were subject to Geostar’s availability of funds and the approval of the requested advances by Geostar’s board of directors. The funds advanced under the convertible debenture were repayable by Gastar either in cash or in shares, at prevailing market prices, at the option of the Company.

 

Subsequent to year end, effective January 1, 2005, Geostar and the Company terminated the convertible debenture arrangement and commenced operating the East Texas properties under a Joint Operating Agreement (“JOA”) which has standard industry terms for the operator (Geostar) (Note 16(c). Under the new arrangement, the Company will be required to find financing for its share of future joint venture costs.

 

2. Significant Accounting Policies

 

The consolidated financial statements of the Company (in United States (“US”) dollars unless otherwise noted) have been prepared by management in accordance with generally accepted accounting principles (“GAAP”) in the United States. The preparation of consolidated financial statements in conformity with US GAAP requires management to make estimates and assumptions that affect the amounts reported in the consolidated financial statements and accompanying notes. Actual results could differ from those estimates. The consolidated financial statements have, in management’s opinion, been properly prepared using careful judgment with reasonable limits of materiality and within the framework of the significant accounting policies summarized below:

 

(a) Consolidation

 

The consolidated financial statements include the accounts of the Company and the consolidated accounts of all its subsidiaries. The entities included in these consolidated accounts are 100% owned unless specified: New Energy West Corporation (“NEC”); 616694 Alberta Ltd.; Monterey Resources, Inc.; New Energy West (U.S.A.) Corporation; 1075191 Ontario Ltd., (“OntarioCo”); First Sourcenergy Wyoming, Inc. (“FSW”); First Source Development, Inc. (“FSD”); First Texas Development, Inc. (“FTD”); First Source Gas LP; Bossier Basin LLC; First Sourcenergy Group, Inc. (“FSG”); First Sourcenergy Kansas, Inc. (“FSK”); First Sourcenergy Victoria, Inc. (“FSV”); Squaw Creek, Inc. (“SCI”); First Appalachian Development, Inc. (“FAD”) and Oil and Gas Services Inc. (“OGS”). All significant intercompany accounts and transactions have been eliminated.

 

F-8


Table of Contents
Index to Financial Statements

GASTAR EXPLORATION LTD.

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

(b) Furniture, Equipment and Other

 

Furniture, equipment and other are carried at historical cost and are amortized over various periods ranging from three to seven years on a straight-line basis.

 

(c) Oil and natural gas properties

 

The Company follows the full cost method of accounting for oil and gas operations pursuant to Statement of Financial Accounting Standards (“SFAS”) No. 19, “Financial Accounting and Reporting by Oil and Gas Producing Companies” (“SFAS No. 19”) whereby all costs of exploring for and developing oil and natural gas reserves are initially capitalized. Such costs include land acquisition costs, geological and geophysical expenses, carrying charges on non-producing properties, costs of drilling and overhead charges directly related to acquisition and exploration activities.

 

Costs capitalized, together with the costs of production equipment, are depleted and amortized on the unit-of-production method based on the estimated net proved reserves as determined by independent petroleum engineers, converting one barrel of oil to one thousand cubic feet natural gas equivalents (Mcfe) by multiplying barrels by a factor of 6. The percentage of total reserve volumes produced during the year is multiplied by the net capitalized investment plus future development costs in those reserves (“the depletable base”).

 

Costs of acquiring and evaluating unproved properties are initially excluded from depletion calculations. These unevaluated properties are assessed periodically to ascertain whether impairment has occurred. When proved reserves are assigned or the property is considered to be impaired, the cost of the property or the amount of the impairment is added to costs subject to depletion calculations.

 

Reserves, future production profiles, and net cash flows are estimated by an independent professional reservoir engineering firm. While Gastar has hired a qualified reservoir engineering firm, their estimates are inherently uncertain, involve numerous assumptions that may not be realized, and predict asset values that may not be indicative of the true market value of the assets evaluated. As a result of the inherent uncertainties and changing technical and economic assumptions, reserve estimates are subject to revisions that can materially impact Company results.

 

In applying the full cost method, the Company performs a ceiling test on properties which compares the net cost of oil and gas properties (“net cost”), which is equal to the unamortized cost of oil and gas properties less any deferred income taxes related to those properties with the calculated ceiling. The calculated ceiling (“ceiling”) is equal to the sum of the estimated discounted future net revenues from production of proved reserves as determined by an independent engineer, generally using prices in effect at the end of the period held flat for the life of production excluding the estimated abandonment cost for properties with asset retirement obligations recorded on the balance sheet and including the effect of derivative contracts that qualify as cash flow hedges, discounted at 10%, the lower of cost or estimated fair value of unproved properties included in the costs being amortized and the cost of properties not being amortized less the income tax effects. If the net cost exceeds the ceiling, an impairment loss will be determined. The impairment loss is measured as the amount by which the net cost exceeds the ceiling and is shown as a reduction in oil and gas properties and as additional depletion. Proceeds from a sale of oil and natural gas properties will be applied against capitalized costs, with no gain or loss recognized, unless such a sale would significantly alter the rate of depletion or amortization.

 

(d) Mineral resource properties

 

All acquisition, exploration and related direct and indirect overhead expenditures are capitalized. The costs relating to a property abandoned are written off when the decision to abandon is made.

 

F-9


Table of Contents
Index to Financial Statements

GASTAR EXPLORATION LTD.

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

(e) Site restoration bond

 

The site restoration bond is a drilling security bond with the Minister of Mineral Resources in Australia for future site restoration on Petroleum Exploration License 238 (“PEL 238”). The bond was refunded in 2004 as the Company is no longer the operator. The current operator has replaced the bond with the Minister of Mineral Resources.

 

(f) Revenue recognition

 

Revenue is recognized on delivery to customers pursuant to the sales method net of royalties.

 

(g) Financial instruments

 

The Company carries various forms of financial instruments. Unless otherwise indicated, it is management’s opinion that the Company is not exposed to significant interest, currency or credit risks arising from these financial instruments. The fair values of these financial instruments approximate their carrying values, unless otherwise noted.

 

(h) Foreign exchange

 

Foreign currency balances of the parent company and non-monetary assets and liabilities are translated at the rates of exchange on the particular transaction date. Monetary assets and liabilities denominated in foreign currencies that remain outstanding at the balance sheet date are translated at period end exchange rates with resulting gains (losses) being recognized in the period. The accounts of all active subsidiaries are maintained in US dollars.

 

(i) Deferred income taxes

 

The liability method of tax allocations is used, based on differences between financial reporting and tax bases of assets and liabilities. No future tax asset has been recorded as it is uncertain whether the Company will be able to realize this benefit.

 

(j) Reporting currency

 

Majority of the Company’s operations are conducted by its US subsidiaries in US dollars. The operations outside of the US are primarily oil and gas property development in Australia which are conducted in Australian dollars (“AUD”). Limited operations are conducted in Canadian dollars. The Company reports its operations in US dollars, its functional currency.

 

(k) Treasury stock method

 

Basic earnings per common share is computed by dividing earnings by the weighted average number of common shares outstanding for the period. Diluted per share amounts reflect the potential dilution that could occur if securities or other contracts to issue common shares were exercised or converted to common shares. The treasury stock method is used to determine the dilutive effect of stock options and other dilutive instruments.

 

F-10


Table of Contents
Index to Financial Statements

GASTAR EXPLORATION LTD.

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

(l) Cash and cash equivalents

 

Cash and cash equivalents include short-term investments, such as money market deposits or highly liquid debt instruments, with a maturity of three months or less when purchased. We maintain our cash in bank deposit accounts, which, at times, may exceed federally insured limits. We have not experienced any losses in such accounts and believe we are not exposed to any significant risk of loss.

 

(m) Stock-based compensation

 

The Company reports compensation expense for stock options granted to employees, officers and directors using the fair value method. Fair values are determined using the Black-Scholes model. Compensation costs are recorded over the vesting period.

 

Effective January 1, 2003, the Company adopted SFAS No. 123 which requires the Company to provide pro-forma information regarding net income as if the compensation costs for the Company’s stock option plan had been determined in accordance with the fair value based method prescribed in SFAS No. 123. To provide the required pro-forma information, the Company estimates the fair value of each stock option at the grant date by using the Black-Scholes option-pricing model.

 

The range of fair values of the Company’s stock options granted was CDN $0.58-$1.77 in 2004 and CDN $0.55 - $1.10 in 2002. The fair values were determined by using the Black-Scholes option model with the following weighted average assumptions for all periods: expected dividend yield 0%, expected volatility 30% - 55%, risk free interest rate 5% and expected option term of four years.

 

The table below reflects the pro-forma impact of stock-based compensation on the Company’s net loss and loss per share had the Company applied SFAS No, 123:

 

     For the Three Months
Ended March 31,


    For the Years Ended December 31,

 
     2005

    2004

    2004

    2003

    2002

 
     (unaudited)                    
     (in thousands except share and per share data)  

Net loss – US GAAP, as reported

   $ (7,636 )   $ (670 )   $ (12,776 )   $ (4,947 )   $ (4,599 )

Cost of Compensation expense using fair value

     (270 )     (678 )     (1,883 )     (3,743 )     (6,968 )
    


 


 


 


 


Net loss – US GAAP, pro forma

   $ (7,906 )   $ (1,348 )   $ (14,659 )   $ (8,690 )   $ (11,567 )

Loss per share – US GAAP, as reported

   $ (0.067 )   $ (0.006 )   $ (0.115 )   $ (0.047 )   $ (0.047 )

Loss per share – US GAAP, pro forma

   $ (0.069 )   $ (0.013 )   $ (0.132 )   $ (0.083 )   $ (0.117 )

 

(n) Deferred financing costs

 

Deferred financing costs include expenses of debt financings undertaken by the Company including commissions, legal fees, value attributed to warrants issued in conjunction with the financing and other direct costs of the financing. Using the interest method, the deferred financing costs are amortized over the term of the related debt.

 

(o) Accretion on convertible notes

 

Using the interest method, the equity component of the convertible notes are amortized over the term of the related debt.

 

F-11


Table of Contents
Index to Financial Statements

GASTAR EXPLORATION LTD.

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

(p) Asset retirement obligation

 

Effective January 1, 2003, the Company adopted SFAS No. 143, “Accounting for Asset Retirement Obligations” (“SFAS No. 143”) using a cumulative effect approach to recognize transition amounts for asset retirement obligations, asset retirement costs and accumulated depreciation. Asset retirement costs and liabilities associated with site restoration and abandonment of tangible long-lived assets are initially measured at a fair value which approximates the cost a third party would incur in performing the tasks necessary to retire such assets. The fair value is recognized in the financial statements as the present value of expected future cash flows. Subsequent to the initial measurement, the effect of the passage of time on the liability for the asset retirement obligation (accretion expense) and the amortization of the asset retirement cost are recognized in the results of operations. Upon adoption, the Company recorded a cumulative-effect-type adjustment for an increase to loss of $121,000 net of deferred taxes of $nil. Additionally, the Company established an asset retirement obligation of $769,000, an increase to property and equipment of $667,000 and an increase to accumulated DD&A of $19,000.

 

The schedule below reflects, on a pro forma basis, the net loss, net loss per share amounts and the liability for asset retirement obligations as if SFAS No. 143 had been applied during all the periods presented.

 

     For the Years Ended
December 31,


 
     2003

    2002

 
     (in thousands, except per share data)  

Net loss, as reported

   $ (4,947 )   $ (4,599 )
    


 


Plus cumulative effect of change in accounting principle

     121       —    

Net change in depletion, depreciation and amortization of property and equipment due to adoption of SFAS No. 143

     —         (20 )

Less accretion of asset retirement obligation

     —         (63 )

Deferred taxes

     —         —    
    


 


Effect on net loss

     121       (83 )
    


 


Net loss, as adjusted

   $ (4,826 )   $ (4,682 )
    


 


Basic earnings per share:

                

Net loss per share, as reported

   $ (0.047 )   $ (0.047 )

Effect on net loss

     0.001       (0.001 )
    


 


Net loss, as adjusted

   $ (0.046 )   $ (0.048 )
    


 


 

    

As of
December 31,

2002

As reported


    Adjustments

   

As of
December 31,

2002

as restated


 
     (in thousands)  

Oil and gas properties

   $ 34,457     $ 648     $ 35,105  

Asset retirement obligation

   $ (77 )   $ (769 )   $ (846 )

 

(q) Joint venture operations

 

The majority of the Company’s petroleum and natural gas exploration activities are conducted jointly with others. These consolidated financial statements reflect only the Company’s proportionate interest in such activities.

 

F-12


Table of Contents
Index to Financial Statements

GASTAR EXPLORATION LTD.

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

(r) Reclassification

 

Certain information provided for the prior year has been reclassified to conform to the presentation adopted in 2005.

 

(s) Goodwill

 

On January 1, 2002, the Company adopted SFAS No. 142, “Goodwill and Other Intangible Assets” (“SFAS No. 142”). Under SFAS No. 142, goodwill and indefinite-lived intangible assets are no longer amortized but are reviewed annually (or more frequently if impairment indicators arise) for impairment. Separable intangible assets that are not deemed to have an indefinite life will continue to be amortized over their useful lives (but with no maximum life). The Company has no goodwill, so adoption of this standard had no impact on our financial position or results of operations.

 

(t) Unaudited Periods

 

The financial information with respect to the three months ended March 31, 2005 and 2004 is unaudited. In the opinion of management, this information contains all adjustments, consisting only of normal recurring accruals, necessary for a fair presentation of the results for the periods presented. The results of operations for interim periods are not necessarily indicative of the results of operations for the full fiscal years.

 

(u) Industry Segment and Geographic Information

 

The Company operates in one industry segment, which is the exploration, development and production of natural gas and crude oil. The Company’s operational activities are conducted in the United States and Australia with only the United States currently having revenue generating operating results. The identifiable assets for each country have been disclosed in Note 4 .

 

(v) New accounting policies

 

In December of 2004, the Financial Accounting Standards Board (“FASB”) issued SFAS 123R “Share Based Payments” which addresses the accounting for transactions in which an entity exchanges its equity instruments for goods and services. It also addresses transactions in which an entity incurs liabilities in exchange for goods or services that are based on the fair value of the entity’s equity instruments or that may be settled by the issuance of those equity instruments. This statement is a revision of FASB statement SFAS No. 123, “Accounting for Stock-Based Compensation” (“SFAS No. 123”). This statement supersedes APB Opinion No. 25, “Accounting for Stock Issued to Employees”. Among other things, this statement requires a public entity to measure the cost of employee services received in exchange for an award of equity instruments based on the grant-date fair value of the award. That cost is recognized over the period during which an employee is required to provide service in exchange for the award – the requisite service period (usually the vesting period). This statement is to be applied as of the beginning of the first interim or annual period that begins after June 15, 2005, but earlier adoption is encouraged. Because we have disclosed pro-forma fair based value amounts in accordance with the original SFAS No. 123, it allows a company to adopt using a modified prospective approach. This will require the Company to recognize in the third quarter of 2005, compensation expense for options granted after June 15, 2005 and compensation expense for awards not yet vested but still outstanding.

 

In December of 2004, FASB issued SFAS No. 153, “Exchanges of Nonmonetary Assets – An Amendment of APB Opinion No. 29” (“SFAS No. 153”). The guidance in APB Opinion No. 29,

 

F-13


Table of Contents
Index to Financial Statements

GASTAR EXPLORATION LTD.

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

“Accounting for Nonmonetary Transactions” (“APB Opinion No. 29”) is based on the principle that exchanges of nonmonetary assets should be measured based on the fair value of the assets exchanged. The guidance in APB Opinion No. 29, however, included certain exceptions to that principle. This Statement amends APB Opinion No. 29 to eliminate the exception for nonmonetary exchanges of similar productive assets and replaces it with a general exception for exchanges of nonmonetary assets that do not have commercial substance. A nonmonetary exchange has commercial substance if the future cash flows of the entity are expected to change significantly as a result of the exchange. The provisions of this Statement are effective for nonmonetary asset exchanges occurring in fiscal periods beginning after June 15, 2005. Earlier application is permitted for nonmonetary asset exchanges occurring in fiscal periods beginning after the date this Statement is issued. The provisions of this Statement shall be applied prospectively. The adoption of SFAS No. 153 did not have any impact on the Company’s financial statements.

 

3. Cash Call Receivable

 

     Opening
balance


  

Cash Call

Advances


   Amounts
Spent


  

Cash Calls,

ending


     (in thousands)

Lone Oak Ranch #1 well

   $ 2,344    $ —      $ 2,068    $ 276

Greer #1 well

     3,974      1,460      3,687      1,747

Fridkin Kaufman #2 well

     —        5,680      2,364      3,316
    

  

  

  

Balance as of March 31, 2005

   $ 6,318    $ 7,140    $ 8,119    $ 5,339
    

  

  

  

Fridkin Kaufman #1 well

   $ 1,220    $ —      $ 1,220    $ —  

Cheney #1 well

     —        9,015      9,015      —  

Lone Oak Ranch #1 well

     —        8,397      6,053      2,344

Greer #1 well

     —        4,122      148      3,974
    

  

  

  

Balance as of December 31, 2004

   $ 1,220    $ 21,534    $ 16,436    $ 6,318
    

  

  

  

Fridkin Kaufman #1 well

   $ —      $ 5,310    $ 4,090    $ 1,220
    

  

  

  

Balance as of December 31, 2003

   $ —      $ 5,310    $ 4,090    $ 1,220
    

  

  

  

 

All cash calls are paid to the operator, Geostar (Note 1). Geostar invoices the Company for their proportionate share of planned authorized expenditures upon Company execution of the final drilling AFE.

 

F-14


Table of Contents
Index to Financial Statements

GASTAR EXPLORATION LTD.

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

4. Property and Equipment

 

The amount capitalized as oil and gas properties was incurred for the purchase and development of various properties in the states of California, Montana, Texas, West Virginia and Wyoming in the US and in New South Wales and Victoria in Australia.

 

The following schedule represents natural gas and oil property costs by country:

 

     US

    Australia

    Total

 
     (in thousands)  

From inception to March 31, 2005:

                        

Cost

   $ 81,410     $ 2,863     $ 84,273  

Asset retirement

     1,673       80       1,753  

Impairment of natural gas and oil properties

     (15,126 )     (604 )     (15,730 )

Accumulated depletion

     (6,933 )     —         (6,933 )
    


 


 


Net book value at March 31, 2005

     61,024       2,339       63,363  

Furniture, equipment and other, net

     89       7       96  
    


 


 


Total property and equipment, net

   $ 61,113     $ 2,346     $ 63,459  
    


 


 


From inception to December 31, 2004:

                        

Cost

   $ 67,991     $ 2,629     $ 70,620  

Asset retirement

     1,423       79       1,502  

Impairment of natural gas and oil properties

     (10,716 )     (604 )     (11,320 )

Accumulated depletion

     (4,246 )     —         (4,246 )
    


 


 


Net book value at December 31, 2004

     54,452       2,104       56,556  

Furniture, equipment and other, net

     —         8       8  
    


 


 


Total property and equipment, net

   $ 54,452     $ 2,112     $ 56,564  
    


 


 


From inception to December 31, 2003:

                        

Cost

   $ 35,274     $ 5,719     $ 40,993  

Asset retirement

     743       85       828  

Impairment of natural gas and oil properties

     (4,411 )     (604 )     (5,015 )

Accumulated depletion

     (1,015 )     —         (1,015 )
    


 


 


Net book value at December 31, 2003

     30,591       5,200       35,791  

Furniture, equipment and other, net

     —         8       8  
    


 


 


Total property and equipment, net

   $ 30,591     $ 5,208     $ 35,799  
    


 


 


 

Excluded from the depletion base are unproved property costs of $36.6 million at March 31, 2005, $29.8 at December 31, 2004 and $26.9 million at December 31, 2003, which consists primarily of drilling in progress costs of approximately $18.0 million at March 31, 2005, $12.9 million at December 31, 2004 and $9.8 million at December 31, 2003 and acreage acquisition costs of approximately $18.6 million at March 31, 2005, $16.9 million at December 31, 2004 and $17.1 million at December 31, 2003.

 

At March 31, 2005 and December 31, 2004, the results of management’s ceiling test evaluation resulted in a write down for the US properties of $4.4 million and $6.3 million (2003 - $451,000). Management also determined that there was no impairment in the carrying values of the Australian properties at March 31, 2005 and December 31, 2004 (2003-$100,000).

 

F-15


Table of Contents
Index to Financial Statements

GASTAR EXPLORATION LTD.

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

Of the total expenditures incurred on oil and gas properties in the first quarter of 2005 in the amount of $14.7 million, $6.4 million were incurred pursuant to the terms of the JOA with Geostar. Oil and gas properties were reduced by $1.0 million upon reclassification of drilling advances and $1,000 upon sale of acreage.

 

Of the total expenditures incurred on oil and gas properties during 2004 in the amount of $34.9 million (2003 - $11.3 million), $17.7 million (2003 - $5.2 million) were financed through the convertible debenture with Geostar. Proceeds from the sale of assets were $3.0 million (2003 - $8.6 million) and were credited to oil and gas properties. Oil and gas properties were reduced by $2.0 million (2003 - $1.0 million) upon reclassification of drilling advances and adjusted by $313,000 (2003- $ nil) for a settlement (Note 6).

 

Included in oil and gas properties are direct travel and supplies expenses capitalized in the amount of $Nil for the three months ended March 31, 2005, $6,000 for December 31, 2004 (2003 - $Nil).

 

In 2003, the Company entered into a farm-in agreement pursuant to the terms of which the Company received $3.0 million in 2004 for 30% of its PEL 238 CBM rights. The joint venture partners may earn an additional 35% by spending up to AUD $7.0 million of development costs. At December 31, 2004, the joint venture partners had earned an additional 20% (i.e. a total 50% working interest) by spending an additional AUD $4.0 million.

 

The Company also has a 75% working interest in the CBM and Mineral Sands rights in EL 4416 in the Gippsland Basin, Victoria, Australia property.

 

Pursuant to the terms of the Earn-In Joint Venture agreement with a third party, the Company’s interest in the Powder River Basin properties was reduced by 66%. The Company received approximately $6.9 million in 2003 in conjunction with the joint venture agreement. The Company has an overriding royalty interest in an additional 2,400 net acres in the Culp Draw and Table Mountain area of the Powder River Basin pursuant to the sale of its interest for approximately $1.7 million in cash in 2003.

 

The Company has, pursuant to the terms of an agreement executed in 2003 with an unrelated third party industry participant, earned a 56.25% working interest in the Company’s East Texas properties. The third party retained a right to a 25% back in after payout interest in the Lone Oak Ranch #1 well, drilled per the terms of a third party agreement.

 

F-16


Table of Contents
Index to Financial Statements

GASTAR EXPLORATION LTD.

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

5. Deferred Charges

 

     Cost

    Accumulated
Amortization


   

Net Book

Value


 
     (in thousands)  

Deferred Financing Costs

        

Balance as of December 31, 2002

   $ 1,119     $ (270 )   $ 849  

Additions in the year

     —         (449 )     (449 )
    


 


 


Balance as of December 31, 2003

     1,119       (719 )     400  

Additions in the year:

                        

Value assigned to warrants issued (Note a)

     358       (218 )     140  

Cash commissions and other related expenses paid (Notes 8,10, and 11)

     2,846       (215 )     2,631  
    


 


 


Balance as of December 31, 2004

     4,323       (1,152 )     3,171  

Amortization for the period

     —         (287 )     (287 )
    


 


 


Balance as of March 31, 2005

   $ 4,323     $ (1,439 )   $ 2,884  
    


 


 


Deferred Lease Costs

                        

Additions 2004 – Gas treating agreements

   $ 542                  

Amortization expense

     (33 )                

Reclass to current portion

     (238 )                
    


               

Balance – December 31, 2004

   $ 271                  

Balance – December 31, 2004, net

   $ 509                  

Amortization expense

     (68 )                

Reclass to current portion

     (170 )                
    


               

Balance – March 31, 2005

   $ 271                  
    


               

Total Deferred Charges – March 31, 2005

   $ 3,155                  
    


               

Total Deferred Charges – December 31, 2004

   $ 3,442                  
    


               

Total Deferred Charges – December 31, 2003

   $ 400                  
    


               

(a) In 2004, the Company issued 2,992,261 warrants expiring at varying dates commencing from October 13, 2007 to November 20, 2009 (Note 13(e)) with exercise prices ranging from $2.76 to $3.87 (CDN $3.64 to $4.65) per share in conjunction with financings completed in the year. The fair value of these warrants was estimated to be $2.4 million, of which $359,000 was deferred and is being amortized over the term of the related debt and $2.1 million was netted against the respective debt. The amortization period ranges from 3 to 5 years.

 

All of the above warrants were valued using the Black-Scholes option pricing model based on the following assumptions: dividend yield - nil; expected volatility – ranging from 30% to 40%; risk free interest rate – 5%; term 3 to 5 years.

 

(b)

In 2004, FTD and First Source Texas, Inc. (“FST”), a wholly owned subsidiary of Geostar, entered into Gas Treating Agreements with a third party for the Fridkin-Kaufman #1 (“F-K #1”) and Cheney #1 wells. The primary term of the agreements are 2 years beginning on the first day of the month immediately following the month during which the plant becomes operational. The Company’s portion of costs relating to equipment leases and operations of the plants over the two year period are estimated to approximate $1.1 million. The Company has recorded an estimated $465,000 for its portion of installation and transportation

 

F-17


Table of Contents
Index to Financial Statements

GASTAR EXPLORATION LTD.

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

 

costs for the plants and has also recorded an accrued liability for an estimated $77,000 for its portion of costs relating to the demobilization of the plants. These costs are being amortized to lease operating expense over the term of the related agreement.

 

6. Contract Payable

 

Pursuant to the acquisition of certain properties in Australia, the Company was obligated to pay $2.0 million, due in two installments. In August 2002, the first installment of $1.0 million was paid on the contract payable pursuant to the acquisition of PEL 238 interests in New South Wales, Australia from an unrelated third party and the second installment of $1.0 million was due in February 2004. The second payment was reduced to $688,000 per a settlement agreement in 2004 (Note 18 (c)) and was paid in the first quarter of 2004.

 

7. Asset Retirement Obligation

 

Effective January 1, 2003, the Company changed its policy on accounting for liabilities associated with site restoration and abandonment of its oil and gas properties pursuant to SFAS No. 143. The undiscounted amount of expected cash flows required to settle the asset retirement obligations is estimated at $2.5 million (December 31, 2004 - $2.5 million and December 31, 2003 - $1.5 million). Of these payments, 89% are expected to be made over the next 5 years, 9% is expected to be made in years 6-10, with the remainder being paid in years 11-19. The liability for the expected cash flows, as reflected in the consolidated financial statements, has been discounted at 6.8% (2003 - 7.34%).

 

     As of
March 31,
2005


   As of
December 31,


 
        2004

    2003

 
     (unaudited)             
     (in thousands)  

Asset retirement obligation, beginning of year

   $ 1,711    $ 984     $ 846  

Liabilities incurred

     250      166       174  

Accretion expense

     19      52       54  

Reduction due to sale of working interest

     —        (57 )     (347 )

Revision in estimated cash flows

     —        566       257  
    

  


 


Asset retirement obligation, end of year

   $ 1,980    $ 1,711     $ 984  
    

  


 


 

8. Convertible Notes

 

In 2002 the Company issued unsecured 12%, 2 year Convertible Notes, (“Convertible Notes”) in two offerings totaling $8.3 million. The first offering ($6.7 million) was convertible at $1.10 per share and the second ($1.6 million) at $1.97 per share. The Convertible Notes outstanding was represented by:

 

     As of
December 31,
2004


     (in thousands)

Current portion

   $ 1,552

Long term

     6,562

Unamortized debt discount

     167
    

     $ 8,281
    

 

F-18


Table of Contents
Index to Financial Statements

GASTAR EXPLORATION LTD.

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

In 2004, Convertible Notes totaling $8.2 million were converted and the Company issued the noteholders a total of 6,847,215 common shares (Note 13). Convertible Notes in the amount of $100,000 were not converted and were subsequently paid in the fourth quarter. The equity portion of these Convertible Notes in the amount of $1.8 million was reclassed to share capital upon conversion.

 

On November 16, 2004, the Company announced that it had closed a $30.0 million issuance of Convertible Senior Unsecured Debentures (“Convertible Senior Debentures”). The Convertible Senior Debentures have a term of 5 years and will be due November 20, 2009 and bear interest at 9.75% per annum, payable quarterly. The Convertible Senior Debentures are convertible by the holders into common shares at a conversion price of $4.38 (CDN $5.45) per share. The debentures may be redeemed by the Company in the event that the Liquidity Event (defined as the Company receiving a no-action letter from the SEC regarding the shares to be issued upon conversion, the Company’s pending U.S. Registration Statement being declared effective or the delivery of an opinion of Company’s counsel that the shares to be issued upon conversion are freely tradable) has not occurred on or prior to (i) March 10, 2005, the conversion price shall be automatically adjusted to equal $4.54, (ii) May 10, 2005, the conversion price shall be automatically adjusted to equal $4.46, and (iii) July 10, 2005, the conversion price shall be automatically adjusted to equal $4.38. Additionally, the Convertible Senior Debentures will be redeemable by the Company at any time after November 13, 2006 at a redemption price equal to par plus accrued and unpaid interest; provided that the volume weighted average trading price of the common shares of the Company, for at least 20 trading days in any consecutive 30 day period, exceeds $6.03 (CDN $7.50).

 

Convertible Senior Debenture Financing related costs paid to unrelated parties amounted to $1.9 million. These costs have been deferred and are being amortized over the life of the debentures. The Company also issued 259,740 broker warrants with an exercise price of $3.87 (CDN $4.65) (Note 13 (e)).

 

There was no beneficial conversion feature associated with the Convertible Senior Debentures.

 

9. Drilling Advances Liability

 

In 2002 the Company pre-sold working interests, to arms length third parties, in four wells and raised $4.0 million in financing for a planned drilling program on the Company’s East Texas natural gas assets. Share purchase warrants were also issued to subscribers on a pro-rata basis, with each warrant having a three year term entitling the holder to acquire one common share of Gastar at a price of $1.49 (CDN $2.35) per share. A total of 2,005,027 warrants were issued on September 23, 2002 and expire on September 23, 2005. The Company paid to the working interest owners an advance on production revenue equal to 10% per annum of the amount invested on a quarterly basis for the first 12 months of the investment (herein referred to as “interest advances”). These have been recorded as interest expense. These payments will be deducted against future working interest revenue earned by the working interest owners.

 

The $4.0 million was classified as a “drilling advances liability” with 25% being credited to oil and gas properties when the wells were drilled. At December 31, 2003 three wells remained to be drilled. Two were drilled in 2004 and the remaining well was drilled in the first quarter of 2005.

 

10. Subordinated, Unsecured Notes Payable

 

In 2004, the Company completed a $3.25 million subordinated, unsecured note financing (“Unsecured Notes”). The Unsecured Notes mature between April and September 2009 and bear interest at 10% per annum and are callable by the Company after 2 years at 108% of the principal amount. The call premium reduces to

 

F-19


Table of Contents
Index to Financial Statements

GASTAR EXPLORATION LTD.

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

105% after three years and 101% after four years. The subscribers were issued 232,521 warrants exercisable at prices ranging from $2.76 to $3.03 (CDN $3.64 to $4.18) expiring at varying dates between April and September 2009. The value of the warrants ($235,000) (Note 13(e)) was deducted against the debt. Interest expense relating to the amortization of the warrants of $12,000 was recorded for the first quarter of 2005 (2004 - $24,000). Cash commissions of $196,000 were incurred, which have been capitalized and will be amortized over the term of the subordinated, unsecured notes.

 

11. Senior Notes

 

In June 2004, a wholly-owned subsidiary of the Company issued $15.0 million of unsecured senior notes (“Senior Notes”) to a private investment company. The Senior Notes mature on July 1, 2009 and bear an annual interest rate of 15% payable semi-annually with a Company option to pay interest due before December 31, 2005 in-kind through the issuance of additional Senior Notes. The Senior Notes are callable at any time by the Company at a call premium of 104% (decreasing ½% every six months) of the principal outstanding. Warrants representing in value 10% of the principal balance were issued in conjunction with the Senior Notes. The warrants are exercisable into an aggregate of 510,525 common shares of the Company upon payment of an exercise price of $3.23 (CDN $4.40) per common share on or before five years from date of issuance. The Company has reserved the common shares to be issued upon exercise of these warrants.

 

As part of the financing, the Senior Note subscriber additionally received a 2% overriding royalty interest (“ORRI”) in the F-K #1, Cheney #1, and two future deep wells in which Gastar participates in the East Texas Bossier project area. Gastar has a right of first refusal on any sale of the ORRI granted to the subscriber of the Senior Notes.

 

In October 2004, the wholly-owned subsidiary of the Company issued an additional $10.0 million of Senior Notes to the same private investment company on the same terms and conditions as the June 2004 Senior Notes. In conjunction with the additional Senior Note issuance, the maturity of all Senior Notes and warrants expiry was amended from five years to three years. Thus all Senior Notes mature and related warrants expire on October 13, 2007. With the October 2004 Senior Note issuance, additional warrants exercisable into an aggregate of 1,989,475 common shares of the Company upon payment of an exercise price of $3.63 (CDN $4.54) were issued. The Company has reserved the common shares to be issued upon exercise of these warrants.

 

As part of the October 2004 Senior Note issuance, the subscriber received a small proportionate ORRI in one future deep Hilltop Bossier well in which Gastar participates in the East Texas Bossier project area. Gastar has a right of first refusal on any sale of the ORRI granted to the subscriber of the Notes.

 

Interest payable in 2004 in the amount of $1.5 million was paid in-kind via the issuance of additional Senior Notes. This additional note bears the same terms as the related Senior Notes. No additional warrants are issuable on these interest payable notes. The value of the warrants ($1.8 million) Note 13(e) was deducted from the debt. Interest expense relating to the amortization of the warrants of $149,000 for the first quarter of 2005 and $184,000 for year end 2004 was also recorded.

 

Total commissions and other direct costs of $750,000 were incurred and will be amortized over the life of the Senior Notes.

 

F-20


Table of Contents
Index to Financial Statements

GASTAR EXPLORATION LTD.

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

12. Interest Expense

 

The following table summarizes interest expense components:

 

     For the
Three Months
Ended
March 31,


   For the Years Ended
December 31,


     2005

   2004

   2004

   2003

   2002

     (unaudited)               
     (in thousands)

Cash and accrued

   $ 1,706    $ 177    $ 957    $ 1,204    $ 954

Paid in-kind

     —        —        1,483      —        —  

Deferred financing cost amortization

     447      242      808      1,363      1,089
    

  

  

  

  

Total

   $ 2,153    $ 419    $ 3,248    $ 2,567    $ 2,043
    

  

  

  

  

 

13. Common Stock

 

(a) Authorized

 

Unlimited number of common shares without par value.

 

  (b) In 2003, at various times during the year, the Company exercised its option under the Convertible Debenture Agreement with Geostar (Note 1) to issue shares of Gastar in full payment of amounts owed to Geostar. A total of 5,206,100 shares were issued at market prices ranging from $1.56 (CDN$2.10) to $1.95 (CDN$2.52).

 

  (c) The Company conducted normal course issuer bids at various times in 2004 and 2003. Pursuant to this program, the Company repurchased 340,000 (2003 – 1,391,500) common shares for a total amount of $888,000 (2003 - $2.1 million). The bid expired on August 4, 2004.

 

  (d) As detailed in Note 8, during 2004 a principal amount of $8.2 million in 12% convertible debentures and notes were converted into an aggregate of 6,847,215 shares of Company common stock. Of the shares issued 6,099,999 shares were at a conversion price of $1.10 and 747,216 shares were at a conversion price of $1.97 per share.

 

  (e) The following table summarizes warrant information to purchase common shares:

 

     Number of
Warrants


  

Value of
Warrants

(in
thousands)


   Warrant
Price per
Share
Range in
CDN$


   Warrant
Price per
Share
Range in
USD$


  

WA (1)
Remaining

Life in

Years


  

WA (1)
Exercise

Price in
CDN$


  

WA (1)
Exercise

Price in
USD$


Warrants outstanding December 31, 2002 and 2003

   2,005,027    $ 425    2.35    1.49    0.50    2.35    1.49
Issued in conjunction with:                                     

Senior Notes (Notes 11 and 18(n))

   2,500,000      1,828    4.40 - 4.54    3.23 - 3.63    2.50    4.51    3.55

Unsecured Notes (Note 10)

   232,521      235    3.64 - 4.18    2.76 - 3.03    4.11    3.76    2.80

Convertible Notes (Note 8)

   259,740      359    4.65    3.87    4.67    4.65    3.87
    
  

  
  
  
  
  

Warrants outstanding December 31, 2004 and March 31, 2005

   4,997,288    $ 2,847    2.35 - 4.65    1.49 - 3.87    1.89    3.62    2.70
    
  

  
  
  
  
  

 

F-21


Table of Contents
Index to Financial Statements

GASTAR EXPLORATION LTD.

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 


(1) WA – weighted average

 

  (f) At March 31, 2005, the Company has reserved 35,075,203 shares to be issued pursuant to the conversion of convertible debt up to (6,849,315), exercise of options (23,228,600), and the exercise of warrants (4,997,288).

 

14. Stock-Based Compensation

 

The Company has a stock-based compensation plan that allows employees to purchase common shares of the Company. Option exercise prices approximate the market price for the common shares on the date the options were issued. Options granted under the plan are generally fully exercisable after four years and expire five years after the grant date. The Company can issue up to 25% of the issued and outstanding shares under this plan.

 

The Company recorded $793,000 in stock-based compensation expense for stock options granted to employees and directors in the first quarter of 2005 and $1.4 million for the year 2004 using the fair-value method with the following assumptions: volatility – 30% to 55%; risk-free interest rate – 5%; and expected life of 4 years. The 5,470,000 options issued in 2004 had a fair value on grant date ranging from $0.47 to $1.42 per option.

 

The following is a summary of options to purchase common shares outstanding:

 

   

Number of

Options


    Option Price
per Share
Range in
CDN$


 

Option Price

per Share
Range in

USD$


  WA (1)
Remaining
Life in
Years


 

WA (1)
Exercise

Price in
CDN$


 

WA (1)
Exercise

Price in
USD$


Options outstanding, December 31, 2002 and 2003

  18,898,600     0.30 - 2.81   0.19 - 1.79   —     1.92   1.20

Options issued, April 20, 2004

  825,000     3.70   2.75   —     3.70   2.75

Options issued, August 4, 2004

  4,645,000     3.41   2.59   —     3.41   2.59
   

 
 
 
 
 

Options outstanding, December 31, 2004

  24,368,600     0.30 - 3.70   0.19 - 2.75   —     2.26   1.52

Options exercised 2005:

                         

February 4 to March 14, 2005

  (240,000 )   0.30   0.19   —     0.30   0.19

February 9, 2005

  (700,000 )   0.30 - 2.76   0.19 - 1.74   —     1.35   0.85

March 2, 2005

  (200,000 )   1.66   1.09   —     1.66   1.09
   

 
 
 
 
 

Options outstanding, March 31, 2005

  23,228,600     0.30 - 3.70   0.19 - 2.75   1.71 years   2.30   1.55
   

 
 
 
 
 

(1) WA – weighted average

 

In 2005, 1,140,000 stock options were exercised with exercise prices ranging from $0.19—$1.74 (CDN $0.30—$2.76). A portion of the stock options exercised were on a non-cash basis. The Company issued a total of 807,825 shares and 332,175 shares reserved for stock option exercise were cancelled. Shares related to the options exercised in March were issued in April 2005.

 

F-22


Table of Contents
Index to Financial Statements

GASTAR EXPLORATION LTD.

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

Of the total options outstanding, 14,533,700 options have vested as of March 31, 2005 which have a weighted average exercise price of $1.10 and a weighted average life of .83 years. The expiry dates for the issued 23,228,600 options outstanding are as detailed below:

 

Number of

Options


  

Option Price

per Share Range in CDN$


  

Option Price

per
Share Range in USD$


  

Expiry date


5,971,500    0.30    0.19    May 31, 2005
—      1.66    1.09    July 9, 2005
11,087,100    2.76    1.74    July 13, 2006
700,000    2.81    1.79    April 26, 2007
825,000    3.70    2.75    April 20, 2009
4,645,000    3.41    2.59    August 4, 2009

  
  
    
23,228,600    0.30 - 3.70    0.19 - 2.75     

  
  
    

 

15. Loss per share

 

In accordance with the provisions of SFAS No. 128, “Earnings per Share” (“SFAS No. 128”), basic earnings per share is computed on the basis of the weighted-average number of common shares outstanding during the periods. Diluted earnings per share is computed based upon the weighted-average number of common shares plus the assumed issuance of common shares for all potentially dilutive securities. Diluted amounts are not shown below as such would be anti-dilutive.

 

    

For the Three Months

Ended March 31,


    For the Years Ended December 31,

 
     2005

    2004

    2004

    2003

    2002

 
     (unaudited)                    
     (in thousands)  

Basic loss per share:

                                        

Numerator

                                        

Net loss before cumulative effect of change in accounting principle

   $ (7,636 )   $ (670 )   $ (12,776 )   $ (4,826 )   $ (4,599 )

Net loss

   $ (7,636 )   $ (670 )   $ (12,776 )   $ (4,947 )   $ (4,599 )

Denominator

                                        

Common shares outstanding

     113,788,198       107,265,493       111,374,446       104,958,180       98,617,920  

Basic loss per share:

                                        

Net loss per share before cumulative effect of change in accounting principle

   $ (0.067 )   $ (0.006 )   $ (0.115 )   $ (0.046 )   $ (0.047 )

Net loss per share applicable to all common shares

   $ (0.067 )   $ (0.006 )   $ (0.115 )   $ (0.047 )   $ (0.047 )

 

16. Related Party Transactions

 

Except as disclosed elsewhere in these financial statements, the Company had the following related party transactions:

 

  (a)

In 2001, the Company entered into a POA with Geostar. For the East Texas properties, the POA was replaced effective January 1, 2005 with a Joint Operating Agreement (“JOA”) as detailed in Note 16(c)

 

F-23


Table of Contents
Index to Financial Statements

GASTAR EXPLORATION LTD.

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

 

below. Pursuant to the terms of the original POA, which still governs the Company’s West Virginia and certain of our Australian assets, the Company has the option to participate as a working interest partner in properties in which Geostar and its subsidiaries have interests in on an “at cost” basis, subject to Gastar’s full due diligence review prior to its participation election. Upon agreeing to participate, the Company is responsible for its proportionate share of actual costs expended by Geostar and its subsidiaries to third parties on an “at cost” basis. The balance of $601,000 at December 31, 2004 and $39,000 at December 31, 2003, represented amounts owed to Geostar and its subsidiaries for natural gas and oil property development. The 2003 balance was settled in 2004 by cash payment.

 

  (b) On June 1, 2000, the Company entered into an agreement with Geostar, a significant shareholder, to settle accounts payable related to the development of natural gas and oil properties with the issuance of a floating convertible debenture for up to CDN$25.0 million. Under the agreement, Geostar would continue to provide funds for development and operations by allowing the Company to draw down on the debenture. Advances under the debenture were subject to Geostar’s availability of funds and the approval of the requested advances by Geostar’s board of directors. The debenture was payable in cash or convertible into common shares, at prevailing market prices at the option of the Company.

 

  (c) Effective January 1, 2005, the Company and Geostar entered into a JOA covering an Area of Mutual Interest (“AMI”) in East Texas, with Gastar as non operator and Geostar as operator. Under the terms of the JOA, Geostar receives overhead reimbursement equal to 12.5% of development costs for the first 10 wells drilled after the effective date, 10% of the development costs for the 11 th through 20 th wells and 8.5% of the developments costs for all subsequent wells. As a result, Geostar no longer charges Gastar a proportionate amount of direct salary and shared premises rent expense for Geostar employees providing administrative and technical support services to Gastar. At March 31, 2005, Geostar billed Gastar $1.4 million, which was equal to 12.5% of development costs for the Greer #1 and F-K #2 wells. These amounts were paid subsequent to the end of the quarter. In conjunction with the execution of the JOA, the Company terminated the convertible debenture arrangement with Geostar and commenced operating the East Texas properties. Under the new arrangement, the Company will be required to find financing for its share of future joint venture costs.

 

There is a balance of $2.7 million payable to Geostar as the operator pursuant to the JOA at March 31, 2005. Of the total revenue receivable at March 31, 2005, $3.0 million (2004 - $1.6 million) represents amounts that were due from Geostar as operator of the properties, once Geostar received the revenue from the third party gas purchaser. These amounts were settled subsequent to the end of the quarter.

 

  (d) In 2004, pursuant to the terms of the POA, Geostar billed the Company $27,000 (2003 - $369,000) for administrative overhead.

 

  (e) In 2004, FSW recorded $1.3 million (2003 - $Nil) in general and administrative costs for administrative and technical support provided by Geostar to the Company. Commencing April 1, 2004, FSW and Geostar agreed to replace the administrative fee with a cost sharing arrangement. As a result, Geostar charged FSW a proportionate amount of direct salary and shared premises rent expense for Geostar employees providing administrative and technical support services to Gastar based on actual costs incurred. This cost sharing arrangement continued as long as Geostar is the operator of the properties. This arrangement resulted in a charge of approximately $146,000 per month for the second and third quarter, $150,000 per month for the fourth quarter. The consolidated statements also include approximately $Nil in seismic reprocessing at March 31, 2005 ($115,000 – December 31, 2004 and $33,000 – December 31, 2003) fees paid to a subsidiary of Geostar. The seismic reprocessing fees were capitalized to natural gas and oil properties.

 

  (f) Effective January 1, 2005, the Company has agreed to hire and employ directly certain Geostar employees as members of the management team. The Company will invoice Geostar for their share of common costs, if applicable.

 

F-24


Table of Contents
Index to Financial Statements

GASTAR EXPLORATION LTD.

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

All related party transactions in the normal course of operations have been measured at the agreed to exchange amounts, which is the amount of consideration established and agreed to by the related parties and which is similar to those negotiated with third parties.

 

17. Income Taxes

 

The effective tax rate of income tax varies from the statutory rate as follows:

 

     As of December 31,

 
     2004

    2003

 
    

(in thousands

except tax rate)

 

Combined effective tax rate

     36.7 %     36.7 %
    


 


Expected income tax provision at statutory rates

   $ (2,451 )   $ (1,437 )

Unrecorded loss carryovers

     2,451       1,437  
    


 


Actual income tax provision

   $ —       $ —    
    


 


 

The Company has the following approximate undeducted Canadian tax pools:

 

     As of December 31,

     2004

   2003

     (in thousands)

Cumulative Canadian exploration expense

   $ 801    $ 159
    

  

Cumulative Canadian development expense

   $ 171    $ 107
    

  

Foreign exploration and development expense

   $ 660    $ 525
    

  

Undeducted undepreciated capital cost

   $ 3    $ 2
    

  

Undeducted non-capital loss carryforwards

   $ 8,090    $ 6,111
    

  

 

If not utilized, the non-capital loss carryforwards for the above expire between 2005 and 2014.

 

The Company has the following approximate undeducted US tax pools:

 

     As of December 31,

     2004

   2003

     (in thousands)

Undeducted capital costs

   $ 30,429    $ 28,223
    

  

Undeducted loss carryforwards

   $ 45,891    $ 23,274
    

  

 

If not utilized, the loss carryforwards for the above expire between 2020 and 2024.

 

The Company has the following approximate undeducted Australian tax pools:

 

     As of December 31,

     2004

   2003

     (in thousands)

Undeducted capital costs

   $ 1,896    $ 3,781
    

  

Undeducted loss carryforwards

   $ 3,121    $ 2,885
    

  

 

The loss carryforwards for the above do not expire.

 

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Index to Financial Statements

GASTAR EXPLORATION LTD.

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

The components of the Company’s future income tax are a result of the origination and reversal of temporary differences in Canada are comprised of the following:

 

     As of December 31,

 
     2004

    2003

 
     (in thousands)  

Nature of temporary differences

                

Capital assets

   $ 600     $ 291  

Share issue costs

     7       13  

Unused tax losses carryforward

     2,970       2,243  

Valuation allowance

     (3,577 )     (2,547 )
    


 


Future income tax asset (liability)

   $ —       $ —    
    


 


 

The components of the Company’s future income tax are a result of the origination and reversal of temporary differences in the US are comprised of the following:

 

     As of December 31,

 
     2004

    2003

 
     (in thousands)  

Nature of temporary differences

                

Capital assets

   $ (11,692 )   $ (1,528 )

Unused tax losses carryforward

     16,842       8,542  

Valuation allowance

     (5,150 )     (7,014 )
    


 


Future income tax asset (liability)

   $ —       $ —    
    


 


 

The components of the Company’s future income tax are a result of the origination and reversal of temporary differences in Australia are comprised of the following:

 

     As of December 31,

 
     2004

    2003

 
     (in thousands)  

Nature of temporary differences

                

Capital assets

   $ (108 )   $ (552 )

Unused tax losses carryforward

     1,145       1,059  

Valuation allowance

     (1,037 )     (507 )
    


 


Future income tax asset (liability)

   $ —       $ —    
    


 


 

No future tax asset has been set up for the unutilized tax balances as their ultimate utilization of this asset is currently uncertain.

 

18. Commitments and Contingencies

 

  (a)

The Company and its joint venture partner were awarded by the Provincial Government of Victoria, Australia four of seven mineral exploration licenses overlying the Gippsland Basin which required the Company and its partner to spend AUD $944,000 by the second quarter of 2004. In 2004, the Company renegotiated the terms of its Gippsland Basin spending commitment and obtained an extension until April 2005. The Company proposed to the Government of Victoria, a relinquishment of approximately

 

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Index to Financial Statements

GASTAR EXPLORATION LTD.

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

 

382,000 gross acres as a result of not meeting the spending commitment. This proposal was approved by the Government of Victoria. Gastar has a 75% working interest and is subsequently responsible for 75% of future expenditures.

 

  (b) The Company had committed to a work program on PEL 238 which included drilling three vertical wells and one horizontal well by August of 2005. The Company entered into an agreement with an outside third party who completed this work program as required.

 

  (c) The Company was a party to an arbitration claim brought by Forest Oil International Corp. (“Forest”) v. FSG. The arbitration has been settled and a Settlement and Release Agreement has been executed. The $1.0 million accrued at December 31, 2003 was settled via a net payment of $688,000 in 2004 (Note 6).

 

  (d) FSG is a named party to an arbitration proceeding captioned Estate of Virgil Sparks and Oil Wells of Kentucky, Inc. v FSG and Geostar. The dispute involves historical dealings with the development of an Authority to Prospect (“ATP”) Area in Queensland, Australia, as well as an ancillary agreement. The formal arbitration is in discovery stages. FSG and Geostar have moved to dismiss the arbitration on the grounds of a claimed prior settlement and release agreement. FSG and Geostar are vigorously defending the arbitration, and firmly believes that its position is sound. Further, the Company’s interest in ATP 560 were transferred from FSG to Conquest Exploration, Inc. (“Conquest”) in 2001, the result of which means that, although FSG is a named defendant, Conquest and Geostar would bear primary liability from this Arbitration action.

 

  (e) Gastar was a party to a lawsuit, as successor, captioned Jabiru Energy Development and Innovation Pty Ltd. (“Jabiru”) v. FSG. The Claim has been settled by the Company, with no admission of liability by any party. In 2003, FSG paid approximately $204,000 for settlement, legal fees and other costs related to this matter.

 

  (f) Under the terms of a third party agreement, to maintain its interests in the joint venture acreage, Gastar was obligated to provide a final payment on the leases acquired by August 15, 2004 and to spud a well by December 31, 2004 on the acquired leases to drill and test the Deep Bossier formation. At December 31, 2003, the Company had accrued approximately $600,000 for its share of the final payment on the leases. The final payment was paid in 2004 and a well was spud prior to December 31, 2004 satisfying this obligation.

 

  (g) In 2004, FST and Navasota Resources Inc. (“NRI”) entered into an agreement (“the 2004 Agreement”) that resulted in the amendment of the previous executed August 27, 2003 Agreement. Under the terms of the 2004 Agreement, FST agreed to pay, within 5 days of the execution of the 2004 Agreement, a total of $1.1 million to two banks for the account of NRI as compensation for the amendment to the August 27, 2003 Agreement, to resolve past joint interest billing disputes and as full and final settlement of amounts owed by FST to NRI under previous agreements. As a result of the 2004 Agreement, NRI’s overriding royalty interest in the leases held by FST and Gastar within the Area of Mutual Interest (“AMI”) under the July 7, 2000 joint operating agreement were reduced from 4.75% to 2.0%. In addition, NRI’s rights to participate on an after payout basis in certain leases within the AMI was reduced from 12.5% to 5.26316% and from 20% to 10%. Gastar is obligated to fund its 75% interest in the payments required under the 2004 Agreement and Gastar’s interest in the leases within the AMI will increase accordingly as a result of the reductions in NRI’s interest detailed above. At December 31, 2003, the Company had accrued its proportionate share of the final payment for the agreement of $743,000. In the second quarter of 2004, the Company paid its proportionate share of the final payment pursuant to the 2004 Agreement.

 

  (h)

During the quarter, FST and FTD entered into an agreement with a third party for natural gas transportation and purchasing services. The Company will reimburse the party for the actual cost of the

 

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Index to Financial Statements

GASTAR EXPLORATION LTD.

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

 

taps, metering, measurement and other facilities necessary to receive the gas hereunder. The Company’s estimated portion of these costs is not to exceed $97,000.

 

  (i) As part of the Senior Note financing (Note 11), the subscribers received a 2% overriding royalty interest (“ORRI”) in the F-K #1, Cheney #1, and two future deep East Texas project wells in which Gastar participates. Gastar has a right of first refusal on any sale of the ORRI granted to the subscriber of the Senior Notes.

 

  (j) The Company is subject to various regulatory and statutory requirements relating to the protection of the environment. These requirements, in addition to contractual agreements and management decisions, result in the accrual of estimated future removal and site restoration costs. These costs are initially measured at a fair value and are recognized in the consolidated financial statements as the resent value of expected future cash flows. Subsequent to the initial measurement, the effect of the passage of time on the liability for the ARO (accretion expense) and the amortization of the ARO cost are recognized in the results of operations. Costs attributable to these commitments and contingencies are expected to be incurred over an extended period of time and are to be funded mainly from the Company’s cash provided by operating activities. Although the ultimate impact of these matters on net earnings cannot be determined at this time, it could be material for any quarter or year.

 

  (k) Under the terms of the proposed employment agreement to be executed in March 2005, the Company has agreed to indemnify an individual, who has acted at the Company’s request to be a officer of the Company, to the extent permitted by law, against any and all damages, liabilities, costs, charges or expenses suffered by or incurred by the individual as a result of their service. The nature of the indemnification agreements prevents the Company from making a reasonable estimate of the maximum potential amount it could be required to pay to beneficiary of such indemnification agreement. The Company has purchased various insurance policies to reduce the risks association with such indemnification.

 

  (l) FSW has entered into an employment agreement with a certain executive officer. In addition to defining the terms of employment, the agreement entitles the executive to termination payments, of up to two years compensation and the immediate vesting of all options previously granted, in the event of termination of employment upon death, disability, termination by the employer with or without cause or upon termination by the officer with adequate notice.

 

  (m) In 2004, the Company and certain of its subsidiaries acted as guarantors in certain senior note financing agreements totaling $25 million (Note 11).

 

Additionally, in the ordinary course of business, other indemnifications may have also been provided pursuant to provisions of purchase and sale contracts, service agreements, joint venture agreements, operating agreements and leasing agreements. In these agreements, the Company has indemnified counterparties if certain events occur. These indemnification provisions vary on an agreement by agreement basis. In some cases, there are no pre-determined amounts or limits included in the indemnification provisions and the occurrence of contingent events that will trigger payment under them is difficult to predict. Therefore, the maximum potential future amount that the Company could be required to pay cannot be estimated.

 

  (n)

In 2004, the Company issued 1,989,475 warrants in conjunction with the $10 million Senior Note financing (Note 11). The Company obtained the required regulatory approvals and intended to issue these warrants at 110% of the market price on the closing date (i.e. the warrants are to be exercisable at $3.63 per share). It has come to the Company’s attention that the warrant certificate as issued reflects a price of $3.30 per share not $3.63. It is further the Company’s belief and position that this was an error. The Company’s intends to take all necessary steps to effect an amendment in the warrant certificate

 

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Index to Financial Statements

GASTAR EXPLORATION LTD.

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

 

consistent with its position. The impact of issuing warrants exercisable at $3.63 per share versus $3.30 per share amounts to $657,000 of reduced proceeds on the warrant exercise. In addition, had the Company valued these warrants with an exercise price of $3.30 per share (versus the $3.63 per share as recorded), the value attributable to the warrants would increase by approximately $268,000. As of June 8, 2005, a corrected warrant certificate had been executed for the corrected price of $3.63 per share.

 

  (o) The Company issued a letter of credit in regards to future office rental payments in the amount of $127,000 bearing interest at a rate of 2.71%, with a maturity date of January 15, 2006.

 

  (p) On May 3, 2005 Western Gas Resources, Lance Oil and Gas Company, Inc and Williams Production RMT Company filed a lawsuit against First Sourcenergy Wyoming, Inc., First Sourcenergy Group, Inc. and others over a dispute that has arisen concerning a June 2002 Lease Exchange and Purchase Agreement between certain of the parties. The issue involves a certain gas gathering agreement and its applicability to certain properties exchanged under the June 2002 Agreement. A formal response to the complaint is not due until June 2005. The Company believes that it has multiple strong defenses to this action and intends to vigorously advance its positions. Further, at this very preliminary stage, it would appear that the Company’s exposure is significantly lower than that of the other defendants.

 

  (q) In 2004, FST and FTD entered into gas treatment agreements with a third party for the F-K #1 and Cheney #1 wells. The primary term of the agreements is 2 years beginning on the first day of the month immediately following the month during which the plant becomes operational. The following is a schedule of future lease payments (in thousands):

 

2005

   $ 532

2006

     483

2007

     49
    

Total

   $ 1,064
    

 

19. Financial Instruments and Other Concentrations

 

The Company holds various forms of financial instruments. The nature of these instruments and the Company’s operations expose the Company to interest rate risk, credit risk and fair value risk. The Company manages its exposure to these risks by operating in a manner that minimizes its exposure to the extent practical.

 

(a) Interest rate risk management

 

Fixed rate debt and receivables are subject to interest rate price risk, as the value will fluctuate as a result of changes in market rates. At December 31, 2004, the Company had fixed interest rates on 100% of its interest bearing obligations at an effective rate of approximately 10 to 15%.

 

(b) Credit risk

 

Substantially all of the Company’s cash is held at one institution and therefore the Company is subject to concentrations of credit risk.

 

(c) Fair value risk

 

The fair value of the Company’s current financial assets and liabilities is approximated by their carrying values due to the short-term nature of the items. The fair value of the Company’s due to related party balance has not been disclosed as the amount is due to a private company and no reliable market information is available. The fair value of the Company’s other long-term investments is reflected by their carrying values as the instruments have recently been negotiated and, as such, reflect prevailing market rates.

 

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Index to Financial Statements

GASTAR EXPLORATION LTD.

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

(d) Concentration risk

 

Approximately 59% of the Company’s 2004 revenues are from the production at the F-K #1 well in Texas. This well commenced production on September 28, 2004.

 

(e) During 2004, ETC Texas Pipeline Ltd. and Western Gas Resources, Inc. accounted for 59% and 10%, respectively, of the Company’s oil and natural gas revenues. During 2003, Western Gas Resources, Inc. and Equitable Gas Company a division of Equitable Resources, Inc. accounted for 72% and 17%, respectively, of the Company’s natural gas and oil revenues. Management believes that the loss of any individual purchaser would not have a long-term material adverse impact on the financial position or results of operations of the Company.

 

20. Statement of Cash Flows

 

Non-cash transactions have been disclosed in Notes 4, 5, 7 - 14, 16 and 18.

 

21. Subsequent Events

 

On April 19, 2005 Gastar announced that it had entered into a Letter of Intent (“LOI”) with Geostar for the acquisition of Geostar’s interest in the East Texas play and in the Powder River Basin of Wyoming for $37.5 million in cash and $6 million in stock at closing and an additional $25 million cash payment in January 2006. In addition, Geostar will receive a payment in stock during the first quarter of 2007 under a look-back provision on the East Texas assets, based on a required number of drilled wells, and net reserve additions valued at $1.50 per Mcf less attributable capital expenditures to Geostar’s former ownership position on the East Texas development costs. In a separate transaction, Gastar announced its intention to acquire an option to purchase up to 50% interest in the brown coal mining rights to existing and future mining licenses held by a Geostar subsidiary in the Gippsland Basin of Victoria, Australia. The price of the option is $2.5 million at closing and $2.5 million in January 2006 for up to 25% interest and another $5 million payable on or before July 31, 2006 for an additional 25% interest. The option is exercisable for 90 days following the delivery to Gastar of a final feasibility study on the initial mining and processing facility. If exercised, the option cost will be US $1.00 per ton of coal reserves to be mined and processed in the initial facility related to the feasibility study. The option will be payable in a combination of cash and stock, not to exceed 50% in cash.

 

On June 17, 2005, the Company completed the private placement of $63.0 million in principal amount of senior secured notes (“Secured Notes”) and 1,217,269 common shares. The Secured Notes bear interest at three month LIBOR plus 6% and mature on June 18, 2010. The Company also committed to issue to the purchasers of the Secured Notes, for no additional consideration, common shares in CDN$4.5 million increments on each of the six, twelve and eighteen-month anniversaries of the original Secured Notes closing date valued on a five day weighted average trading price prior to the date of issuance.

 

The Company has the right, exercisable quarterly during the period from August 17, 2005 to June 16, 2007, to require the original purchaser of the Secured Notes to purchase additional Secured Notes in an amount limited to an aggregate of $20.0 million in principal, provided that the Company complies with certain financial and other covenants. If additional Secured Notes are issued, the purchasers will also be entitled to receive, for no additional consideration, additional common shares on similar terms as those issued with the original Secured Notes in a pro rata amount based on the additional principal amount of the Secured Notes. To issue these additional Secured Notes, we must meet certain requirements including a minimum ratio of our present value discounted at 10%, based on prices specified in the Secured Notes, proved plus probable reserves to net debt ratio must be at least 2.0:1.

 

Concurrently with the private placement of Secured Notes, the Company closed the acquisition of additional leasehold and working interest properties from Geostar in the Hilltop area of East Texas and in the Powder River

 

F-30


Table of Contents
Index to Financial Statements

GASTAR EXPLORATION LTD.

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

Basin of Wyoming and Montana. The Company paid a total of $68.5 million for the interests acquired from Geostar consisting of $30.5 million in cash, 1,650,133 common shares valued at CDN$4.50 per share and $32.0 million in unsecured subordinated notes maturing on January 31, 2006. The acquisition increased Gastar’s working interest position in the Hilltop area to an average of over 90% and gave us operational control of the properties. The acquisition of additional Powder River Basin interests provides Gastar with a larger interest in properties currently being developed through an existing joint venture.

 

On August 11, 2005, the Company executed an agreement with Geostar whereby the Geostar $32.0 million unsecured subordinated note was cancelled. In conjunction with the note cancellation, the Company agreed to issue Geostar $17.0 million of our common shares issued at a value of CDN $3.25 and a new unsecured subordinated note for $15.0 million. The new Geostar note bears interest, payable monthly commencing February 15, 2006, at three-month LIBOR plus 4.5% and matures November 15, 2006. The note requires monthly principal payments of $1.5 million commencing February 15, 2006 and continuing for nine months thereafter with a final principal payment of $1.5 million due on November 15, 2006. The Company may elect to pay interest in kind through the issuance of additional notes with such notes maturing on January 15, 2007.

 

On June 30, 2005, Gastar completed a private placement of 6,617,736 common shares at CDN$3.31 per share. The estimated net proceeds from this placement were $16.4 million (CDN$20.5 million), after deducting placement fees and expenses.

 

22. Supplemental Oil and Gas Disclosures – Unaudited

 

Oil and Gas Producing Activities

 

The following disclosures for the Company are made in accordance with SFAS No. 69, “Disclosures About Oil and Gas Producing Activities (An Amendment of FASB Statements 19, 25, 33 and 39)” (“SFAS No. 69”). Users of this information should be aware that the process of estimating quantities of proved, proved developed and proved undeveloped crude oil and natural gas reserves is very complex, requiring significant subjective decisions in the evaluation of all available geological, engineering and economic data for each reservoir. The data for a given reservoir may also change substantially over time as a result of numerous factors including, but not limited to, additional development activity, evolving production history and continual reassessment of the viability of production under varying economic conditions. Consequently, material revisions to existing reserve estimates occur from time to time. Although every reasonable effort is made to ensure that reserve estimates reported represent the most accurate assessments possible, the significance of the subjective decisions required and variances in available data for various reservoirs make these estimates generally less precise than other estimates presented in connection with financial statement disclosures.

 

Proved reserves represent estimated quantities of natural gas and crude oil that geological and engineering data demonstrate, with reasonable certainty, to be recoverable in future years from known reservoirs under economic and operating conditions existing at the time the estimates were made.

 

Proved developed reserves are proved reserves expected to be recovered, through wells and equipment in place and under operating methods being utilized at the time the estimates were made.

 

Proved undeveloped reserves are reserves that are expected to be recovered from new wells on undrilled acreage or from existing wells where a relatively major expenditure is required for recompletion. Reserves on undrilled acreage are limited to those drilling units offsetting productive units that are reasonably certain of production when drilled. Proved reserves for other undrilled units can be claimed only where it can be demonstrated with certainty that there is continuity of production from the existing productive formation.

 

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Index to Financial Statements

GASTAR EXPLORATION LTD.

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

Estimates for proved undeveloped reserves are not attributed to any acreage for which an application of fluid injection or other improved recovery technique is contemplated, unless such techniques have been proved effective by actual tests in the area and in the same reservoir.

 

Estimates of proved developed and proved undeveloped reserves as of December 31, 2004, 2003 and 2002, were based on estimates prepared by Netherland, Sewell & Associates Inc. (“NSAI”) an independent petroleum reservoir engineer.

 

Our independent engineer is engaged by and provides their reports to the Reserve Committee of the Board of Directors. The reservoir engineer is independent and engaged to prepare the reserves reports rather than to audit reports prepared by the Company. Company management represents to the independent engineers that we have provided all relevant operating data and documents, and management reviews the reports to ensure completeness and accuracy. The final independent engineer report is approved by the Reserve Committee.

 

Our relevant management controls over proved reserve attribution, estimation and evaluation include:

 

    controls over and processes for the collection and processing of all pertinent operating data and documents needed by our independent reservoir engineers to estimate our proved reserves;

 

    engagement of well qualified and independent reservoir engineers for review of our operating data and documents and preparation of reserve reports annually in accordance with all SEC reserve estimation guidelines; and

 

    review by our senior management of the independent reservoir engineers’ reserves reports for completion and accuracy.

 

Market prices as of each year-end were used for future sales of natural gas, crude oil and natural gas liquids. Future operating costs, production and ad valorem taxes and capital costs were based on current costs as of each year-end, with no escalation. There are numerous uncertainties inherent in estimating quantities of proved reserves and in projecting the future rates of production and timing of development expenditures. Reserve data represent estimates only and should not be construed as being exact. Moreover, the standardized measure should not be construed as the current market value of the proved oil and gas reserves or the costs that would be incurred to obtain equivalent reserves. A market value determination would include many additional factors including (a) anticipated future changes in natural gas and crude oil prices, production and development costs, (b) an allowance for return on investment, (c) the value of additional reserves, not considered proved at present, which may be recovered as a result of further exploration and development activities, and (d) other business risk.

 

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Table of Contents
Index to Financial Statements

GASTAR EXPLORATION LTD.

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

Capitalized Costs Relating Oil and Producing Activities

 

The following table presents the Company’s aggregate capitalized costs relating to oil producing activities and the related depreciation, depletion and amortization:

 

     United States

   Australia

   Total

     (in thousands)

At December 31, 2004

                    

Proved properties

   $ 41,748    $ 615    $ 42,363

Unproved properties

     27,666      2,093      29,759
    

  

  

       69,414      2,708      72,122

Less accumulated depreciation, depletion and amortization

     4,246      —        4,246

Less impairment allowance

     10,716      604      11,320
    

  

  

Total

   $ 54,452    $ 2,104    $ 56,556
    

  

  

At December 31, 2003

                    

Proved properties

   $ 14,351    $ 604    $ 14,955

Unproved properties

     21,666      5,200      26,866
    

  

  

       36,017      5,804      41,821
                      

Less accumulated depreciation, depletion and amortization

     1,015      —        1,015

Less impairment allowance

     4,411      604      5,015
    

  

  

Total

   $ 30,591    $ 5,200    $ 35,791
    

  

  

At December 31, 2002

                    

Proved properties

   $ 13,816    $ 504    $ 14,320

Unproved properties

     20,260      4,765      25,025
    

  

  

       34,076      5,269      39,345

Less accumulated depreciation, depletion and amortization

     444      —        444

Less impairment allowance

     3,959      504      4,463
    

  

  

Total

   $ 29,673    $ 4,765    $ 34,438
    

  

  

 

Pursuant to SFAS No. 143, net capitalized cost includes related asset retirement cost of $1.5 million, $828,000 and $77,000 at December 31, 2004, 2003 and 2002, respectively.

 

Costs Incurred in Oil and Gas Property Acquisition, Exploration and Development Activities

 

The acquisition, exploration and development costs disclosed in the following tables are in accordance with definitions in SFAS No. 19. Acquisition costs include costs incurred to purchase, lease or otherwise acquire property. Exploration costs include exploration expenses and additions to exploration wells, including those in progress. Development costs include additions to production facilities and equipment, as well as additions to development wells, including those in progress. The following table sets forth costs incurred related to the Company’s oil and gas activities for the years ended December 31, 2004, 2003, and 2002:

 

F-33


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Index to Financial Statements

GASTAR EXPLORATION LTD.

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

Costs incurred in oil and gas-producing activities are as follows:

 

     United
States


   Australia

    Total

     (in thousands)

For the year ended December 31, 2004

                     

Proved property acquisition

   $ 1,460    $ 2     $ 1,462

Unproved property acquisition

     3,163      (288 )     2,875

Exploration

     27,662      195       27,857

Development

     2,437      —         2,437
    

  


 

Total

   $ 34,722    $ (91 )   $ 34,631
    

  


 

 

     United
States


   Australia

   Total

     (in thousands)

For the year ended December 31, 2003

                    

Proved property acquisition

   $ 826    $ 3    $ 829

Unproved property acquisition

     3,600      100      3,700

Exploration

     6,012      346      6,358

Development

     458      —        458
    

  

  

Total

   $ 10,896    $ 449    $ 11,345
    

  

  

 

     United
States


   Australia

   Total

     (in thousands)

For the period ended December 31, 2002

                    

Proved property acquisition

   $ 1,223    $ 46    $ 1,269

Unproved property acquisition

     5,895      153      6,048

Exploration

     2,681      256      2,937

Development

     1,780      —        1,780
    

  

  

Total

   $ 11,579    $ 455    $ 12,034
    

  

  

 

Costs incurred include capitalized general and administrative costs of $6,000 in 2004 all of which were related to US Operation. No capitalized general and administrative costs were incurred in 2003 and 2002

 

Costs relating to unevaluated properties which have been excluded from amortization at December 31, 2004 are as follows:

 

     As of December 31,

     2004

    2003

   2002

   2001 and
prior


   Total

     (in thousands)

Property acquisition

   $ (125 )   $ 1,059    $ 7,853    $ 7,964    $ 16,751

Exploration

     5,713       415      459      1,464      8,051

Development

     874       135      734      3,136      4,879

Other capitalized costs

     —         —        —        78      78
    


 

  

  

  

Total

   $ 6,462     $ 1,609    $ 9,046    $ 12,642    $ 29,759
    


 

  

  

  

 

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Index to Financial Statements

GASTAR EXPLORATION LTD.

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

The US properties are expected to be developed over the next two to five years while the Australian properties are anticipated to be developed over the next three to seven years.

 

Results of Operations for Oil and Gas Producing Activities

 

The following table sets forth results of operations for oil and gas producing activities for the years ended December 31, 2004, 2003 and 2002:

 

    

United

States


 
     (in thousands)  

For the year ended December 31, 2004

        

Oil and gas sales

   $ 6,059  

Production expenses

     (2,000 )

Impairment of natural gas and oil properties

     (6,306 )

Depletion, depreciation and amortization

     (3,231 )
    


Results of producing activities

   $ (5,478 )
    


Depletion, depreciation and amortization per Mcfe

   $ 2.89  
    


For the year ended December 31, 2003

        

Oil and gas sales

   $ 1,461  

Production expenses

     (712 )

Impairment of natural gas and oil properties

     (552 )

Depletion, depreciation and amortization

     (570 )
    


Results of producing activities

   $ (373 )
    


Depletion, depreciation and amortization per Mcfe

   $ 1.46  
    


For the year ended December 31, 2002

        

Oil and gas sales

   $ 783  

Production expenses

     (769 )

Impairment of natural gas and oil properties

     (377 )

Depletion, depreciation and amortization

     (358 )
    


Results of producing activities

   $ (721 )
    


Depletion, depreciation and amortization per Mcfe

   $ 0.87  
    


 

The results of producing activities exclude interest charges and general corporate expenses and represent US activities only due to no producing operations activities in Australia to date.

 

Net Proved and Proved Developed Reserve Summary

 

The Company’s proved net developed and proved undeveloped reserves are located only in the United States. The Company cautions that there are many uncertainties inherent in estimating proved reserve quantities and in projecting future production rates and the timing of development expenditures. In addition, estimates of new discoveries are more imprecise than those of properties with a production history. Accordingly, these estimates are expected to change as future information becomes available. Material revisions of reserve estimates may occur in the future; development and production of the oil and gas reserves may not occur in the periods assumed and actual prices realized and actual costs incurred may vary significantly from those used. Proved

 

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Index to Financial Statements

GASTAR EXPLORATION LTD.

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

reserves represent estimated quantities of natural gas, crude oil and condensate that geological and engineering data demonstrate, with reasonable certainty, to be recoverable in future years from known reservoirs under economic and operating conditions existing at the time the estimates were made. Proved developed reserves are proved reserves expected to be recovered through wells and equipment in place and under operating methods being utilized at the time the estimates were made.

 

The following table sets forth changes in estimated net proved and proved developed reserves for the years ended December 31, 2004, 2003 and 2002:

 

     Gas (Mmcf)

    Oil (MBbl)

 

December 31, 2001

   8,461     44  

Extensions and discoveries

   7,261     —    

Purchases of minerals in place

   481     —    

Revisions of previous estimates

   (634 )   (15 )

Production

   (393 )   (3 )
    

 

December 31, 2002

   15,176     26  

Extensions and discoveries

   5,067     —    

Sales of minerals in place

   (9,082 )   —    

Revisions of previous estimates

   (2,912 )   (21 )

Production

   (385 )   (1 )
    

 

December 31, 2003

   7,864     4  

Extensions and discoveries

   14,931     4  

Purchases of minerals in place

   2,528     —    

Sales of minerals in place

   (2,408 )   —    

Revisions of previous estimates

   (407 )   —    

Production

   (1,108 )   (2 )
    

 

December 31, 2004

   21,400     6  
    

 

Proved developed reserves:

            

December 31, 2002

   4,650     26  
    

 

December 31, 2003

   1,865     4  
    

 

December 31, 2004

   6,179     6  
    

 

 

Standardized Measure of Discounted Future Net Cash Flows Relating to Proved Oil and Gas Reserves

 

The following information has been developed utilizing procedures prescribed by SFAS No. 69 and based on natural gas and crude oil reserve and production volumes estimated by the independent petroleum reservoir engineers. This information may be useful for certain comparison purposes but should not be solely relied upon in evaluating the Company or its performance. Further, information contained in the following table should not be considered as representative of realistic assessments of future cash flows, nor should the standardized measure of discounted future net cash flows be viewed as representative of the current value of the Company’s oil and gas assets.

 

The future cash flows presented below are based on sales prices, cost rates and statutory income tax rates in existence as of the date of the projections. It is expected that material revisions to some estimates of natural gas

 

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Index to Financial Statements

GASTAR EXPLORATION LTD.

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

and crude oil reserves may occur in the future, development and production of the reserves may occur in periods other than those assumed, and actual prices realized and costs incurred may vary significantly from those used. Income tax expense has been computed using expected future tax rates and giving effect to tax deductions and credits available, under current laws, and which relate to oil and gas producing activities.

 

Management does not rely upon the following information in making investment and operating decisions. Such decisions are based upon a wide range of factors, including estimates of probable as well as proved reserves and varying price and cost assumptions considered more representative of a range of possible economic conditions that may be anticipated.

 

The Standardized Measure of Discounted Future Net Cash Flows relating to proved oil and gas reserves is presented below:

 

    

United States

(in thousands)


 

December 31, 2002:

        

Future cash inflows

   $ 39,004  

Future production costs

     (14,312 )

Future development costs

     (7,727 )

Future income taxes

     (586 )
    


Future net cash flows

     16,379  

10% annual discount for estimated timing of cash flows

     (5,884 )
    


Standardized measure of discounted future cash flows

   $ 10,495  
    


December 31, 2003:

        

Future cash inflows

   $ 36,842  

Future production costs

     (16,927 )

Future development costs

     (8,475 )

Future income taxes

     —    
    


Future net cash flows

     11,440  

10% annual discount for estimated timing of cash flows

     (3,303 )
    


Standardized measure of discounted future cash flows

   $ 8,137  
    


December 31, 2004:

        

Future cash inflows

   $ 106,830  

Future production costs

     (32,654 )

Future development costs

     (39,680 )

Future income taxes

     —    
    


Future net cash flows

     34,496  

10% annual discount for estimated timing of cash flows

     (8,887 )
    


Standardized measure of discounted future cash flows

   $ 25,609  
    


 

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Index to Financial Statements

GASTAR EXPLORATION LTD.

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

Changes in Standardized Measure of Discounted Future Net Cash Flows

 

The principal sources of changes in the Standardized Measure of Future Net Cash Flows are as follows:

 

    

United States

(in thousands)


 

December 31, 2001

   $ 5,120  

Extensions and discoveries, less related costs

     3,593  

Sales of oil and gas, net of production costs

     (14 )

Purchases of minerals in place

     478  

Revisions in previous quantity estimates

     (732 )

Net change in income tax

     (111 )

Net changes in prices and production costs

     2,208  

Accretion of discount

     480  

Development costs incurred

     294  

Net change in estimated future development costs

     (1,107 )

Change in production rates (timing)—other

     286  
    


December 31, 2002

     10,495  

Extensions and discoveries, less related costs

     5,378  

Sales of oil and gas, net of production costs

     (749 )

Sales of minerals in place

     (10,054 )

Revisions in previous quantity estimates

     (4,675 )

Net change in income tax

     111  

Net changes in prices and production costs

     2,129  

Accretion of discount

     1,273  

Development costs incurred

     1,713  

Net change in estimated future development costs

     3,689  

Change in production rates (timing)—other

     (1,173 )
    


December 31, 2003

     8,137  

Extensions and discoveries, less related costs

     21,371  

Sales of oil and gas, net of production costs

     (4,059 )

Purchases of minerals in place

     2,853  

Sales of minerals in place

     (2,718 )

Revisions in previous quantity estimates

     (1,458 )

Net change in income tax

     —    

Net changes in prices and production costs

     291  

Accretion of discount

     864  

Development costs incurred

     337  

Net change in estimated future development costs

     1,684  

Change in production rates (timing) - other

     (1,693 )
    


December 31, 2004

   $ 25,609  
    


 

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Index to Financial Statements

GASTAR EXPLORATION LTD.

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

Average prices in effect at December 31, 2004, 2003 and 2002 used in determining future net revenues related to the standardized measure calculations are as follows:

 

     2004

   2003

   2002

Oil (per Bbl)

   $ 39.75    $ 29.25    $ 27.50

Gas (per Mcf)

                    

Powder River Basin (Wyoming and Montana)

   $ 5.52    $ 5.58    $ 3.12

Hilltop Area (East Texas)

   $ 5.82    $ 5.97    $ 4.74

Appalachian Basin (West Virginia)

   $ 6.45    $ 5.71    $ 4.80

Cherokee Basin (Kansas)

   $ 6.18    $ 5.97    $ 4.74

 

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Index to Financial Statements

Appendix A

 

GLOSSARY OF NATURAL GAS AND OIL TERMS

 

Bbl. One stock tank barrel, or 42 U.S. gallons liquid volume, used herein in reference to crude oil or other liquid hydrocarbons.

 

Bod. One stock tank barrel per day.

 

BOE. One barrel of oil equivalent determined using the ratio of six Mcf of natural gas to one Bbl of crude oil, which approximates the relative energy content between crude natural gas and oil.

 

Bcf. One billion cubic feet of natural gas.

 

Bituminous coal. Higher rank coals.

 

Bwd . Barrels of water per day.

 

CBM. Coal bed methane.

 

CDN$ . Canadian dollars.

 

Completion. The installation of permanent equipment for the production of oil or gas, or in the case of a dry hole, the reporting of abandonment to the appropriate agency.

 

Developed acreage. The number of acres that are allocated or assignable to producing wells or wells capable of production.

 

Developed well. A well drilled within the proved area of a natural gas and oil reservoir to the depth of a stratigraphic horizon known to be productive.

 

Dry hole or well. A well found to be incapable of producing hydrocarbons in sufficient quantities such that proceeds from the sale of such production exceeds production expenses and taxes.

 

Exploration. The search for accumulations of natural gas and oil reserves by any geologic, geophysical, or other means.

 

Exploratory well. A well drilled to find and produce natural gas and oil reserves not classified as proved, to find a new reservoir in a field previously found to be productive of natural gas and oil in another reservoir or to extend a known reservoir.

 

Farmout agreement. An agreement between a leaseholder and a party willing to drill natural gas and oil wells on a leasehold property in exchange for assignments from the leaseholder of part or all of the leasehold interests. The agreement is an executory contract in that performance will take place in the future. A farmout agreement will typically (1) outline the future drilling obligations and (2) provide the framework in which the leaseholder will effect the future leasehold assignments, assuming the drilling obligations are met. The leaseholder typically reserves overriding royalty interests at the time that the leaseholder finally executes an assignment.

 

Field. An area consisting of single reservoir or multiple reservoirs all grouped on or related to the same individual geological structural feature and/or stratigraphic condition.

 

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Gross acres or gross wells. The total acres or wells, as the case may be, in which a working interest is owned.

 

Horizon. A geological layer or strata that may or may not contain oil or natural gas.

 

Mcf. One thousand cubic feet of natural gas.

 

Mcfd. One thousand cubic feet of natural gas per day.

 

Mcfe . One thousand cubic feet of natural gas equivalent determined using the ratio of six Mcf of natural gas to one Bbl of oil, which approximates the relative energy content between natural gas and oil.

 

MBbl. One thousand stock tank barrels, or 42,000 U. S. gallons liquid volume, used herein in reference to crude oil or other liquid hydrocarbons.

 

MMcf. One million cubic feet of natural gas.

 

MMcfd. One million cubic feet of natural gas per day.

 

MMcfe . One million cubic feet of natural gas equivalent determined using the ratio of six Mcf of natural gas to one Bbl of oil, which approximates the relative energy content between natural gas and oil.

 

Net acres or net wells. The sum of the fractional working interests owned in gross acres or gross wells.

 

Net smelter return. An interest in a mining property held by the vendor on the net revenues generated from the sale of metal produced by the mine.

 

NYMEX. The New York Mercantile Exchange, which is the primary exchange on which natural gas futures contracts are traded.

 

Present value or PV(10). When used with respect to natural gas and oil reserves, the estimated future gross revenue to be generated from the production of proved reserves, net of estimated production and future development costs, using prices and costs in effect as of the date indicated, without giving effect to non-property related expenses such as general and administrative expenses, debt service and future income tax expenses or to depreciation, depletion and amortization, discounted using an annual discount rate of 10%.

 

Productive well. A well that is, or is capable of, producing hydrocarbons in sufficient quantifies such that proceeds from the sale of such production exceed production expenses and taxes.

 

Proved developed producing reserves. Proved developed reserves that are expected to be recovered from completion intervals currently open in existing wells and able to produce to market.

 

Proved developed nonproducing reserves. Proved developed reserves expected to be recovered from zones behind casing in existing wells.

 

Proved reserves. The estimated quantities of crude oil, natural gas and natural gas liquids which geological and engineering data demonstrate with reasonable certainty to be recoverable in future years from known reservoirs under existing economic and operating conditions.

 

Proved undeveloped location. A site on which a development well can be drilled consistent with spacing rules for purposes of recovering proved undeveloped reserves.

 

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Index to Financial Statements

Proved undeveloped reserves. Proved reserves that are expected to be recovered from new wells on undrilled acreage or from existing wells where a relatively major expenditure is required for recompletion.

 

Rank. A measure of the maturity, or age and degree of carbonization, of coals.

 

Recompletion. The completion for production of an existing well bore in another formation from that in which the well has been previously completed.

 

Reservoir. A porous and permeable underground formation containing a natural accumulation of producible oil and/or natural gas that is confined by impermeable rock or water barriers and is individual and separate from other reservoirs.

 

Royalty interest. An interest in an oil or natural gas property entitling the owner to a share of gas production free of costs of production.

 

Subbituminous coal. Lower rank coals.

 

Tcf. Trillion cubic feet of natural gas.

 

3-D (three dimensional) seismic. Geophysical data that depicts the subsurface strata in three dimensions. 3-D seismic data typically provides a more detailed and accurate interpretation of the subsurface strata than two dimensional seismic data.

 

2-D (two dimensional) seismic. The method by which a cross-section of the earth’s subsurface is created through the interpretation of reflected seismic data collected along a single source profile.

 

Undeveloped acreage. Lease acreage on which wells have not been drilled or completed to a point that would permit the production of commercial quantities of natural gas regardless of whether such acreage contains proved reserves.

 

Vitrinite reflectance. Technical test of the reflectivity of a coal surface, generally associated with the rank of a coal.

 

Working interest. The operating interest which gives the owner the right to drill, produce and conduct operating activities on the property and a share of production. A working interest pays its share of the costs of drilling and production, as compared to an overriding royalty or royalty interest, which does not pay any costs associated with drilling or production.

 

Workover. Operations on a producing well to restore or increase production from the currently producing formation.

 

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Index to Financial Statements

 

 

24,022,444 Shares

 

Gastar Exploration Ltd.

 

Common Shares

 


 

Prospectus

 

                    , 2005

 


 

 

Until                      (25 days after the commencement of this offering), all dealers that effect transactions in our common shares, whether or not participating in this offering, may be required to deliver a prospectus.

 



Table of Contents
Index to Financial Statements

PART II

 

INFORMATION NOT REQUIRED IN PROSPECTUS

 

Item 13. Other Expenses of Issuance and Distribution.

 

Set forth below are the expenses expected to be incurred in connection with the issuance and distribution of the securities registered hereby. With the exception of the Securities and Exchange Commission registration fee, the amounts set forth below are estimates.

 

Registration fee

   $ 7,400

Printing expenses

     11,000

Fees and expenses of legal counsel

      

Accounting fees and expenses

      

Miscellaneous

      
    

Total

   $ *
    


* To be completed by pre-effective amendment.

 

Item 14. Indemnification of Directors and Officers.

 

The Business Corporations Act (Alberta) and our bylaws provide that we will indemnify each of our directors and officers and any person who acts or acted at our request as a director or officer of a body corporate of which we are or were a shareholder or creditor, and the heirs and legal representatives of each of them, against all costs, charges and expenses reasonably incurred by such director, officer or person, and their respective heirs or legal representatives, in respect of any action or proceeding to which any of them is made a party by reason of such director, officer or person being or having served in that position, if: (1) the director, officer or person acted honestly and in good faith with a view to the best interests of us; and (2) in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, the director, officer or person had reasonable grounds for believing that his conduct was lawful. As used above, “costs, charges and expenses” includes but is not limited to the fees, charges and disbursements or legal counsel on an as-between-a solicitor-and-the-solicitor’s-own-client basis and an amount paid to settle an action or satisfy a judgment.

 

In April 2003, we entered into Indemnity Agreements with each of our directors and executive officers. Pursuant to these Indemnity Agreements, which are governed by the laws of Alberta, Canada, we will, subject to the Business Corporations Act (Alberta), indemnify and hold harmless the director or officer:

 

    From and against any and all claims that may be made against such director or officer by any person or other entity (including governmental entities) arising out of or in any way in connection with such individual having been a director and/or officer of us or another entity;

 

    From and against any and all liability (except where such liability relates to a failure of the director or officer to act honestly and in good faith with a view to the best interests of us), losses, damages, costs, charges, expenses, fines and penalties, including an amount paid to settle an action or satisfy a judgment, and the fees, charges and disbursements of legal counsel, which the director or officer may reasonably sustain, incur or be liable for in consequence of acting as an officer and/or director of us or another entity; and

 

    Without limiting the generality of the foregoing, from and against all liabilities and penalties at any time imposed upon the director or officer or any claims at any time made against the director or officer by virtue of the Business Corporations Act (Alberta), the Workers’ Compensation Act (Alberta), the Bankruptcy Act (Canada), the Income Tax Act (Canada) and the Alberta Corporate Income Tax Act, or any re-enactment or amendment of any such statues and which in any way involve the affairs of business of us or another entity.

 

The above indemnities will continue in effect after the director or officer resigns his position or his position is terminated for any reason.

 

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Index to Financial Statements

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling us under the indemnification arrangements described above, the SEC is of the opinion that this indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.

 

Item 15. Recent Sales of Unregistered Securities.

 

During the three years preceding the date of this registration statement, the registrant has sold the following securities without registration under the Securities Act:

 

In September 2002, the registrant completed an offering of an additional $1,570,920 in aggregate principal amount of its 12% unsecured convertible notes. These convertible notes had a two-year term. They were converted at the rate of one common share for each $1.97 of the principal amount of the notes during the 30-day period immediately before maturity. The Private Consulting Group, Inc. acted as placement agent for this offering. The purchasers of these notes were U.S. residents. The issuance of the notes was exempt from registration pursuant to Rule 506 of Regulation D under the Securities Act.

 

Also in September 2002, the registrant completed an offering of $4,010,050 of working interests in a four-well drilling program on its Bossier sand natural gas properties. In connection with the offering, an aggregate of 2,005,027 warrants were issued to subscribers on a pro-rata basis, with each warrant having a three-year term and entitling the holder to acquire one share of the registrant’s common shares at an exercise price of CDN$2.35 per share. The registrant paid to the working interest owner an advance on production revenue equal to 10% of the amount invested on a quarterly basis for the first 12 months of the investment. All of the working interests and warrants were issued to U.S. residents. The Private Consulting Group, Inc. acted as placement agent for this offering. This issuance was exempt from registration pursuant to Rule 506 of Regulation D under the Securities Act.

 

On September 30, 2002, the registrant exercised its option under the CDN$25.0 million floating convertible debenture agreement with Geostar to issue shares of its common shares for partial payment of amounts owed to Geostar at that time. The registrant issued 1,343,219 shares of its common shares to Geostar at the September 30, 2002 closing market price of CDN$2.35 per share for amounts owing of $2,000,000. There was no underwriter involved in this transaction. This issuance was exempt from registration under Section 4(2) of the Securities Act.

 

On December 31, 2002, the registrant exercised its option under the CDN$25.0 million floating convertible debenture agreement with Geostar to issue shares of its common shares for payment of amounts owed to Geostar at that time. The registrant issued 3,798,895 shares of its common shares to Geostar at the December 31, 2002 closing market price of CDN$2.20 per share for amounts owing of $5,300,000. There was no underwriter involved in this transaction. This issuance was exempt from registration under Section 4(2) of the Securities Act.

 

On June 30, 2003, the registrant again exercised its option under the CDN$25.0 million floating convertible debenture agreement with Geostar to issue shares of its common shares for full payment of amounts owed to Geostar at that time. The registrant issued 4,236,946 shares of its common shares to Geostar at the June 30, 2003 closing market price of CDN$2.10 per share for amounts owing of $6,603,032. There was no underwriter involved in this transaction. The issuance was exempt from registration under Section 4(2) of the Securities Act.

 

On November 26, 2003, the registrant again exercised its option under the CDN$25.0 million floating convertible debenture agreement with Geostar to issue shares of its common shares for full payment of amounts owed to Geostar as of September 30, 2003. The registrant issued 852,514 shares of its common shares to Geostar at the November 26, 2003 closing market price of CDN$2.40 per share for amounts owing of $1,568,805. There was no underwriter involved in this transaction. The issuance was exempt from registration under Section 4(2) of the Securities Act.

 

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Index to Financial Statements

On December 31, 2003, the registrant again exercised its option under the CDN$25.0 million floating convertible debenture agreement with Geostar to issue shares of its common shares for full payment of amounts owed to Geostar at that time. The registrant issued 116,640 shares of its common shares to Geostar at the December 31, 2003 closing market price of CDN$2.52 per share for amounts owing of $227,045. There was no underwriter involved in this transaction. The issuance was exempt from registration under Section 4(2) of the Securities Act.

 

On April 11, 2004, $6,710,000 in aggregate principal amount of the registrant’s 12% unsecured convertible notes issued in March 2002 converted into 6,099,999 common shares at a conversion price of $1.10 per share.

 

On October 5, 2004, $1,570,920 in aggregate principal amount of the registrant’s 12% unsecured convertible notes issued in September 2002 converted into 747,216 common shares at a conversion price of $1.97 per share.

 

On November 12, 2004, the registrant issued $24,930,000 aggregate principal amount of its 9.75% Senior Convertible Unsecured Subordinated Debentures due 2009. The notes are convertible into shares of the registrant’s common shares at a current conversion price of $4.38 per share. Westwind Partners Inc. acted as placement agent for this offering. The issuance of the convertible debentures was exempt from registration pursuant to Rule 506 of Regulation D and Regulation S under the Securities Act.

 

On November 16, 2004, the registrant issued $5,070,000 aggregate principal amount of its 9.75% Senior Convertible Unsecured Subordinated Debentures due 2009. The notes are convertible into shares of the registrant’s common shares at a current conversion price of $4.38 per share. Westwind Partners Inc. acted as placement agent for this offering. The issuance of the convertible debentures was exempt from registration pursuant to Rule 506 of Regulation D and pursuant to Regulation S under the Securities Act.

 

On June 17, 2005, the registrant issued $63.0 million of Senior Secured Notes bearing interest at three-month LIBOR plus 6% due 2010. In conjunction with the note placement, the registrant issued 1,217,269 common shares to the purchasers of the notes, for no additional consideration, and also committed to issue to the purchasers of the notes, for no additional consideration, common shares in CDN$4.5 million increments on each of the six, twelve and eighteen-month anniversaries of the closing date, subject to the registrant’s compliance with certain financial and other covenants. The issuance of the senior secured notes and the common shares together with subscription receipts were exempt from registration pursuant to Rule 506 of Regulation D under the Securities Act.

 

On June 17, 2005, concurrent with the private placement of its senior secured notes, the registrant issued 1,650,133 common shares valued at CDN$4.50 per share and $32.0 million in unsecured subordinated notes maturing on January 31, 2006 representing a portion of the purchase price in connection with the acquisition of additional leasehold and working interest properties from Geostar. The issuance of the shares and unsecured subordinated notes to Geostar was exempt from registration pursuant to Section 4(2) under the Securities Act.

 

On June 30, 2005, the registrant issued 6,617,736 common shares at CDN$3.31 per share in a private offering. Pritchard Capital, LLC and Westwind Partners Inc. acted as placement agents for this offering. The issuance of the shares was exempt from registration pursuant to Rule 506 of Regulation D and pursuant to Regulation S under the Securities Act.

 

On August 11, 2005, we executed an agreement with Geostar Corporation whereby a $32.0 million unsecured subordinated note of the registrant was cancelled. In conjunction with the note cancellation, the registrant agreed to issue Geostar $17.0 million of registrant’s common shares issued at a value of CDN$3.25 and a new unsecured subordinated note for $15.0 million.

 

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Index to Financial Statements

Options to purchase a total of 17,329,600 shares of the registrant’s common shares have been issued under the 2002 Stock Option Plan, of which options to purchase 6,392,500 shares have been exercised. These issuances were exempt under Section 4(2) of the Securities Act and Rule 701 issued under the Securities Act. The issuance of the shares and unsecured subordinated notes to Geostar was exempt from registration pursuant to Section 4(2) under the Securities Act.

 

Item 16. Exhibits

 

The following documents are filed as exhibits to this registration statement:

 

Exhibit
Number


  

Description


3.1*    Amended and Restated Articles of Incorporation of Gastar Exploration Ltd.
3.2    Bylaws of Gastar Exploration Ltd.
4.1    Indenture dated as of November 12, 2004 between Gastar Exploration Ltd. and CIBC Mellon Trust Company, as trustee.
4.2    Form of 9.75% Convertible Senior Unsecured Subordinated Debenture of Gastar Exploration Ltd.
4.3    Form of placement agent warrant to Purchase Common shares of Gastar Exploration Ltd. in connection with issuances of 9.75% Convertible Senior Unsecured Subordinated Notes of Gastar Exploration Ltd.
4.4    Agency Agreement dated as of November 12, 2004 between Gastar Exploration Ltd. and Westwind Partners Inc. in connection with issuances of 9.75% Convertible Senior Unsecured Subordinated Notes of Gastar Exploration Ltd.
4.5    Form of Subscription Agreement for U.S. purchasers of 9.75% Convertible Senior Unsecured Subordinated Debentures of Gastar Exploration Ltd.
4.6    Form of Subscription Agreement for Non-U.S. purchasers of 9.75% Convertible Senior Unsecured Subordinated Debentures of Gastar Exploration Ltd.
4.7    Securities Purchase Agreement dated as of June 17, 2005, by and among Gastar Exploration Ltd. and the purchasers named therein for the purchase of $63.0 million in principal amount of Senior Secured Notes.
4.8    Form of Senior Secured Note dated as of June 17, 2005.
4.9    Registration Rights Agreement dated as of June 17, 2005, by and among Gastar Exploration Ltd. and the purchasers named therein.
4.10    Form on Subscription Agreement for U.S. Purchasers of common shares of Gastar Exploration Ltd. in a private placement dated June 30, 2005.
4.11    Form of Subscription Agreement for non-U.S. Purchasers of common shares of Gastar Exploration Ltd. in a private placement dated June 30, 2005.
4.12    Placement agent warrant to purchase 510,525 common shares of Gastar Exploration Ltd. in connection with the sale of $15.0 million in principal amount of 15% subordinate notes in October 2004.
4.13    Placement agent warrant to purchase 1,989,475 common shares of Gastar Exploration Ltd. in connection with the sale of $10.0 million in principal amount of 15% subordinate notes in February 2005.
4.14    Form on 10% subordinated note issued June 2004.

 

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Exhibit
Number


    

Description


4.15      Form of warrant to purchase common shares of Gastar Exploration Ltd. issued in connection with the sale of 10% subordinated notes in June 2004
4.16      Form of warrant to purchase common shares of Gastar Exploration Ltd. issued in connection with the private placement of working interests in 2002.
5.1 *    Opinion of Burnet, Duckworth & Palmer LLP
10.1      The Gastar Exploration Ltd. 2002 Stock Option Plan
10.2      Employment Agreement dated March 23, 2005 by and among First Sourcenergy Wyoming, Inc., Gastar Exploration, Ltd. and J. Russell Porter.
10.3      Employment Agreement dated April 26, 2005 by and among First Sourcenergy Wyoming, Inc., Gastar Exploration, Ltd. and Michael A. Gerlich.
21.1      Subsidiaries of Gastar Exploration Ltd.
23.1      Consent of BDO Dunwoody LLP
23.2      Consent of Netherland, Sewell and Associates, Inc.
23.3      Consent of Burnet, Duckworth & Palmer LLP (included in Exhibit 5.1)
24.1      Power of Attorney (included on signature page).

* To be filed by amendment.

 

Item 17. Undertakings

 

Insofar as indemnification by the registrant for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer, or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer, or controlling person in connection with the securities being registered hereunder, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

 

The undersigned registrant hereby undertakes:

 

  (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:

 

  (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;

 

  (ii)

To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate

 

II-5


Table of Contents
Index to Financial Statements
 

offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;

 

  (iii) To include any material information with respect to the distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;

 

  (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

  (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

 

The registrant hereby undertakes that:

 

  (1) For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.

 

  (2) For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

II-6


Table of Contents
Index to Financial Statements

SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, Texas on August 12, 2005.

 

Gastar Exploration Ltd.
By:  

/ S /    J. R USSELL P ORTER

   

Name: J. Russell Porter

Title:   Chief Executive Officer and President

 

Each person whose signature appears below appoints J. Russell Porter and Michael A. Gerlich, and each of them, any of whom may act without the joinder of the other, as his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and any Registration Statement (including any amendment thereto) for this offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he might or would do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them of their or his substitute and substitutes, may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.

 

Signature


  

Title


 

Date


/ S /    J. R USSELL P ORTER        


J. Russell Porter

  

Chief Executive Officer, President, Chief Operating Officer and Director (Principal Executive Officer)

  August 12, 2005

/ S /    M ICHAEL A. G ERLICH        


Michael A. Gerlich

  

Vice President and Chief Financial Officer and Director (Principal Financial and Accounting Officer)

  August 12, 2005

/ S /    T HOMAS E. R OBINSON        


Thomas E. Robinson

  

Chairman of the Board of Directors

  August 12, 2005

/ S /    R ICHARD K APUSCINSKI        


Richard Kapuscinski

  

Director

  August 12, 2005

/ S /    M ATTHEW J. P. H EYSEL        


Matthew J. P. Heysel

  

Director

  August 12, 2005

/ S /    T HOMAS C ROW        


Thomas Crow

  

Director

  August 12, 2005

/ S /    A BBY B ADWI        


Abby Badwi

  

Director

  August 12, 2005

 

II-7

EXHIBIT 3.2

 

BYLAWS

 

Approved at the

Special Meeting of Shareholders

on March 31, 2000


BYLAWS

 

TABLE OF CONTENTS

 

SECTION I     
DEFINITIONS AND INTERPRETATION     
1.    Definitions    1
2.    Interpretation    2
3.    Headings    2
4.    By-laws Subject to the ABCA    2
SECTION II     
BUSINESS OF THE CORPORATION     
1.    Execution of Documents    2
2.    Cheques, Drafts and Notes    2
3.    Corporate Seal    2
4.    Banking Arrangements    2
5.    Voting Rights in Other Bodies Corporate    3
6.    Withholding Information from Shareholders    3
7.    Divisions    3
SECTION III     
BORROWING     
1.    Borrowing Power    3
SECTION IV     
DIRECTORS     
1.    Management of Business    4
2.    Qualification    4
3.    Number of Directors    4
4.    Increase Number    4
5.    Decrease Number    4
6.    Election and Term    4
7.    Removal of Directors    5
8.    Consent    5
9.    Ceasing to Hold Office    5
10.    Filling Vacancies    5
11.    Delegation to a Managing Director or Committee    5
12.    Remuneration and Expenses    6
13.    Annual Financial Statements    6
SECTION V     
MEETINGS OF DIRECTORS     
1.    Calling Meetings    6
2.    Notice    6
3.    Notice of Adjourned Meeting    7
4.    Meetings Without Notice    7
5.    Waiver of Notice    7
6.    Quorum    7
7.    Regular Meetings    7
8.    Chairperson of Meetings    7
9.    Decision on Questions    8
10.    Meeting by Telephone    8
11.    Resolution in Lieu of Meeting    8
SECTION VI     
OFFICERS AND APPOINTEES OF THE BOARD     
1.    Appointment of Officers    8
2.    Term of Office    8
3.    Duties of Officers    8
4.    Remuneration    8
5.    Chairperson of the Board    9
6.    Managing Director    9
7.    President    9
8.    Vice-President    9
9.    Secretary    9
10.    Treasurer    9
11.    Agents and Attorneys    9
SECTION VII     
CONFLICT OF INTEREST     
1.    Disclosure of Interest    9
2.    Approval and Voting    10
3.    Effect of Conflict of Interest    10
SECTION VIII     
LIABILITY AND INDEMNIFICATION     
1.    Limitation of Liability    10
2.    Indemnity    11
3.    Insurance    11
SECTION IX     
SECURITIES     
1.    Shares    11
2.    Options and Other Rights to Acquire Securities    12
3.    Commissions    12
4.    Securities Register    12
5.    Transfer Agents and Registrars    12
6.    Dealings with Registered Holders    12
7.    Transfers of Securities    12
8.    Registration of Transfers    12
9.    Lien    13
10.    Security Certificates    13
11.    Entitlement to a Security Certificate    13
12.    Securities Held Jointly    13
13.    Replacement of Security Certificates    13
14.    Fractional Shares    13
SECTION X     
MEETINGS OF SHAREHOLDERS     
1.    Annual Meeting of Shareholders    14
2.    Special Meetings of Shareholders    14
3.    Special Business    14
4.    Place and Time of Meetings    14
5.    Notice of Meetings    14
6.    Notice of Adjourned Meetings    15
7.    Waiver of Notice    15
8.    Shareholder List    15
9.    Persons Entitled to Vote    15
10.    Chairperson of Meetings    16
11.    Scrutineer    16
12.    Procedure at Meetings    16
13.    Persons Entitled to be Present    16
14.    Quorum    16
15.    Loss of Quorum    16
16.    Proxy Holders and Representatives    17
17.    Time for Deposit of Proxies    17
18.    Revocation of Proxies    17
19.    Joint Shareholders    17
20.    Decision on Questions    17
21.    Voting by Show of Hands    18
22.    Voting by Ballot    18
23.    Number of Votes    18
24.    Meeting by Telephone    18
25.    Resolution in Lieu of Meeting    18
SECTION XI     
NOTICES     
1.    Method of Notice    18
2.    Notice to Joint Shareholders    18
3.    Notice to Successors    19
4.    Non-Receipt of Notice    19
5.    Failure to Give Notice    19
6.    Execution of Notices    19


SECTION I

DEFINITIONS AND INTERPRETATION

 

1. Definitions

 

In the By-laws, unless the context otherwise requires:

 

  (a) “ABCA” means the business Corporations Act (Alberta);

 

  (b) “appoint” includes elect and vice versa;

 

  (c) “Articles” includes the original or restated articles of incorporation, articles of amendment, articles of amalgamation, articles of continuance, articles of reorganization, articles of arrangement, articles of dissolution and articles of revival of the Corporation, and any amendment to any of them;

 

  (d) “Board” means the board of directors of the Corporation;

 

  (e) “By-laws” means this by-law and all other by-laws of the Corporation from time to time in force;

 

  (f) “Corporation” means COPPERQUEST INC.;

 

  (g) “Director” means an individual who is elected or appointed as a director of the Corporation;

 

  (h) “Indemnified Party” has the meaning set out in section (VIII) for purposes of that section;

 

  (i) “Officer” means an officer of the Corporation appointed by the Board;

 

  (j) “Record Date” means, for the purpose of determining shareholders entitled to receive notice of a meeting of shareholders:

 

  i) the date fixed in advance by the Board for that determination which precedes the date on which the meeting is to be held by not more than 50 days and not less than 21 days,

 

  ii) if no notice is sent, the day on which the meeting is held;

 

  (k) “Recorded Address” means:

 

  i) in the case of a Shareholder, the Shareholder’s latest address as shown in the Corporation’s records or those of its transfer agent,

 

  ii) in the case of joint Shareholders, the latest address as shown in the Corporation’s records or those of its transfer agent in respect of those joint holders, or the first address appearing if there is more than one address,

 

  iii) in the case of a Director, the Director’s latest address as shown in the Corporation’s records or in the last notice of directors filed with the Registrar, and

 

  iv) in the case of an Officer or auditor of the Corporation, that person’s latest address as shown in the Corporation’s records;

 

  (l) “Registrar” means the Registrar of Corporations or a Deputy Registrar of Corporations appointed under the ABCA;

 

  (m) “Regulations” means the Regulations, as amended, in force from time to time under the ABCA; and

 

1


  (n) “Shareholder” means a shareholder of the Corporation.

 

2. Interpretation

 

In the By-laws, except if defined in this section or the context does not permit:

 

  (a) words and expressions defined or used in the ABCA have the meaning or use given to them in the ABCA;

 

  (b) words importing the singular include the plural and vice versa;

 

  (c) words importing gender include masculine, feminine and neuter genders; and

 

  (d) words importing persons include bodies corporate.

 

3. Headings

 

The headings used in the By-laws are inserted for convenience of reference only. The headings are not to be considered or taken into account in construing the terms of the By-laws nor are they to be deemed in any way to clarify, modify or explain the effect of any term of the By-laws.

 

4. By-laws Subject to the ABCA

 

The By-laws are subject to the ABCA and the Regulations, to any unanimous shareholder agreement and to the Articles, in that order.

 

SECTION II

BUSINESS OF THE CORPORATION

 

1. Execution of Documents

 

Documents may be executed on behalf of the Corporation in the manner and by the persons the Board may designate by resolution.

 

2. Cheques, Drafts and Notes

 

Cheques, drafts or orders for the payment of money, notes, acceptances and bills of exchange must be signed in the manner and by the persons the Board may designate by resolution.

 

3. Corporate Seal

 

The Board may, by resolution, adopt a corporate seal containing the name of the Corporation as the corporate seal. A document issued by or executed on behalf of the Corporation is not invalid only because the corporate seal is not affixed to that document. A document requiring authentication by the Corporation does not need to be under seal.

 

4. Banking Arrangements

 

The Board may open any bank accounts the Corporation may require at a financial institution designated by resolution of the Board. The Board may adopt, authorize, execute or deposit any document furnished or required by the financial institution and may do any other thing as may be necessarily incidental to the banking and financial arrangements of the Corporation.

 

5. Voting Rights in Other Bodies Corporate

 

The persons designated by the Board to execute documents on behalf of the Corporation may execute and deliver instruments of proxy and arrange for the issue of voting certificates or other evidence of the right to exercise voting

 

2


rights attached to any securities held by the Corporation in another body corporate. The instruments, certificates or other evidence shall be in favour of the person that is designated by the persons executing the instruments of proxy or arranging for the issue of voting certificates or other evidence of the right to exercise voting rights. In addition, the Board may direct the manner in which and the person by whom any particular voting right or class of voting rights may be exercised.

 

6. Withholding Information from Shareholders

 

No Shareholder is entitled to obtain any information respecting any detail or conduct of the Corporation’s business which, in the opinion of the Board, would not be in the best interests of the Shareholders or the Corporation to communicate to the public.

 

The Board may determine whether and under what conditions the accounts, records and documents of the Corporation are open to inspection by the Shareholders. No Shareholder has a right to inspect any account, record or document of the Corporation except as conferred by the ABCA or authorized by resolution of the Board or by resolution passed at a meeting of Shareholders.

 

7. Divisions

 

The Board may cause any part of the business and operations of the Corporation to be segregated or consolidated into one or more divisions upon the basis the Board considers appropriate. Any division may be designated by the name the Board determines and may transact business under that name. The name of the Corporation must be set out in legible characters in and on all contracts, invoices, negotiable instruments and orders for goods or services issued or made by or on behalf of any division of the Corporation.

 

SECTION III

BORROWING

 

1. Borrowing Power

 

Without limiting the borrowing power of the Corporation provided by the ABCA, the Board may, without authorization of the Shareholders,

 

  (a) borrow money on the credit of the Corporation;

 

  (b) issue, reissue, sell or pledge debt obligations of the Corporation;

 

  (c) subject to section 42 of the ABCA, give a guarantee on behalf of the Corporation to secure performance of an obligation of any person; and

 

  (d) mortgage, hypothecate, pledge or otherwise create a security interest in all or any property of the Corporation, owned or subsequently acquired, to secure any obligation of the Corporation.

 

The Directors may, by resolution, delegate to a Director, a committee of Directors or an Officer all or any of the powers conferred on them by this section.

 

SECTION IV

DIRECTORS

 

1. Management of Business

 

The Board shall manage the business and affairs of the Corporation. Every Director must comply with the ABCA, the Regulations, the Articles and the By-laws.

 

3


2. Qualification

 

A person is disqualified for election as a Director if that person:

 

  (a) is less than 18 years of age;

 

  (b) is a person who is of unsound mind and has been so found by a court in Canada or elsewhere;

 

  (c) is not an individual; or

 

  (d) as the status of bankrupt.

 

A Director is not required to hold shares issued by the Corporation.

 

3. Number of Directors

 

The Board is to consist of that number of Directors permitted by the Articles. In the event the Articles permit a minimum and maximum number of Directors, the Board is to consist of the number of Directors the Shareholders determine by special resolution or, if the special resolution empowers the Directors to determine the number, by resolution of the Directors. The number of Directors at any one time may not be less than the minimum or more than the maximum number permitted by the Articles.

 

4. Increase Number

 

The Shareholders may amend the Articles to increase the number, or the minimum or maximum number of Directors. Upon the adoption of an amendment increasing the number or minimum number of Directors, the Shareholders may, at the meeting at which they adopt the amendment, elect the additional number of Directors authorized by the amendment. Upon the issue of a certificate of amendment, the Articles are deemed to be amended as of the date the Shareholders adopted the amendment.

 

5. Decrease Number

 

The Shareholders may amend the Articles to decrease the number, or the minimum or maximum number, of Directors. No decrease shortens the term of an incumbent Director.

 

6. Election and Term

 

Each Director named in the notice of directors filed at the time of incorporation holds office from the issue of the certificate of incorporation until the first meeting of Shareholders. The Shareholders are to elect Directors by ordinary resolution at the first meeting of Shareholders and at each succeeding annual meeting at which an election of Directors is required. The elected Directors are to hold office for a term expiring not later than the close of the next annual meeting of Shareholders following the election. A Director not elected for an expressly stated term ceases to hold office at the close of the first annual meeting of Shareholders following the Directors election. If Directors are not elected at a meeting of Shareholders, the incumbent Directors continue in office until their respective successors are elected.

 

7. Removal of Directors

 

The Shareholders may by ordinary resolution passed at a special meeting of Shareholders remove a Director from office. Any vacancy created by the removal of a Director may be filled at the meeting at which the Director was removed, failing which time vacancy may be filled by a quorum of Directors.

 

8. Consent

 

No election or appointment of an individual as a Director is effective unless:

 

  (a) the individual was present at the meeting when elected or appointed and did not refuse to act as Director, or

 

4


  (b) if the individual was not present at the meeting when elected or appointed as a Director, the individual

 

  i) consented in writing to act as a Director before the individual’s election or appointment or within 10 days after it, or

 

  ii) has acted as a Director pursuant to the election or appointment.

 

9. Ceasing to Hold Office

 

A Director ceases to hold office when:

 

  (a) the Director dies or resigns;

 

  (b) the Director is removed from office by the Shareholders who elected the Director; or

 

  (c) the Director ceases to be qualified for election as a Director under subsection (2).

 

A Director’s resignation is effective at the time a written resignation is sent to the Corporation, or at the time specified in the resignation, whichever is later.

 

10. Filling Vacancies

 

A quorum of Directors may fill a vacancy in the Board, except a vacancy resulting from an increase in the number or minimum number of Directors or from a failure to elect the number or minimum number of Directors required by the Articles. If there is not a quorum of Directors, or if there has been a failure to elect the number or minimum number of Directors required by the Articles, the Directors then in office must immediately call a special meeting of Shareholders to fill the vacancy. If the Directors fail to call a meeting, or if there are no Directors then in office, the meeting may be called by any Shareholder.

 

11. Delegation to a Managing Director or Committee

 

The Directors may appoint from their number a Managing Director or a committee of Directors. At least half of the members of a committee of Directors must be resident Canadians. A Managing Director must be a resident Canadian. The Directors may delegate to a Managing Director or a committee of Directors any of the powers of the Directors. However, no Managing Director and no committee of Directors has authority to:

 

  (a) submit to the Shareholders any question or matter requiring the approval of the Shareholders;

 

  (b) fill a vacancy among the Directors or in the office of auditor;

 

  (c) issue securities, except in the manner and on the terms authorized by the Directors;

 

  (d) declare dividends;

 

  (e) purchase, redeem or otherwise acquire shares issued by the Corporation, except in the manner and on the terms authorized by the Directors;

 

  (f) pay a commission in connection with the sale of shares of the Corporation;

 

  (g) approve a management proxy circular;

 

  (h) approve any financial statements; or

 

  (i) adopt, amend or repeal By-laws.

 

5


12. Remuneration and Expenses

 

The Directors are entitled to receive remuneration for their services in the amount the Board determines. Subject to the Board’s approval, the Directors are also entitled to be reimbursed for traveling and other expenses incurred by them in attending meetings of the Board or any committee of Directors or in the performance of their duties as Directors.

 

Nothing contained in the By-laws precludes a Director from serving the Corporation in another capacity and receiving remuneration for acting in that other capacity.

 

The Directors must disclose to the Shareholders the aggregate remuneration paid to the Directors. The disclosure must be in a written document to be placed before the Shareholders at every annual meeting of Shareholders and must relate to the same time period as the financial statements required to be presented at the meeting relate to.

 

13. Annual Financial Statements

 

The Board must place before the Shareholders at every annual meeting of Shareholders financial statements which have been approved by the Board as evidenced by the signature of one or more of the Directors, the report of the auditor and any further information respecting the financial position of the Corporation and the results of its operations that is required by the ABCA, the Regulations, the Articles, the By-laws or any unanimous shareholder agreement.

 

SECTION V

MEETINGS OF DIRECTORS

 

1. Calling Meetings

 

The Chairperson of the Board, the Managing Director or any Director may call a meeting of Directors. A meeting of Directors or of a committee of Directors may be held within or outside of Ontario at the time and place indicated in the notice referred to in subsection (2).

 

2. Notice

 

Notice of the time and place of a meeting of Directors or any committee of Directors must be given to each Director or each Director who is a member of a committee not less than 48 hours before the time fixed for that meeting. Notice must be given in the manner prescribed in subsection 11. A notice of a meeting of Directors need not specify the purpose of the business to be transacted at the meeting except when the business to be transacted deals with a proposal to:

 

  (a) submit to the Shareholders any question or matter requiring the approval of the Shareholders;

 

  (b) fill a vacancy among the Directors or in the office of auditor;

 

  (c) issue securities;

 

  (d) declare dividends;

 

  (e) purchase, redeem or otherwise acquire shares issued by the Corporation;

 

  (f) pay a commission in connection with the sale of shares of the Corporation;

 

  (g) approve a management proxy circular;

 

  (h) approve any financial statements; or

 

  (i) adopt, amend or repeal By-laws.

 

6


3. Notice of Adjourned Meeting

 

Notice of an adjourned meeting of Directors is not required if a quorum is present at the original meeting and if the time and place of the adjourned meeting is announced at the original meeting. If a meeting is adjourned because a quorum is not present, notice of the time and place of the adjourned meeting must be given as for the original meeting. The adjourned meeting may proceed with the business to have been transacted at the original meeting, even though a quorum is not present at the adjourned meeting.

 

4. Meetings Without Notice

 

No notice of a meeting of Directors or of a committee of Directors needs to be given:

 

  (a) to a newly elected Board following its election at an annual or special meeting of Shareholders; or

 

  (b) for a meeting of Directors at which a Director is appointed to fill a vacancy in the Board,

 

if a quorum is present.

 

5. Waiver of Notice

 

A Director may waive, in any manner, notice of a meeting of Directors or of a committee of Directors. Attendance of a Director at a meeting of Directors or of a committee of Directors is a waiver of notice of the meeting, except when the Director attends the meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called.

 

6. Quorum

 

The Directors may fix the quorum for meetings of Directors or of a committee of Directors, but unless so fixed, a majority of the Directors or of a committee of Directors constitutes a quorum.

 

7. Regular Meetings

 

The Board may by resolution establish one or more days in a month for regular meetings of the Board at a time and place to be named in the resolution. No notice is required for a regular meeting.

 

8. Chairperson of Meetings

 

The chairperson of any meeting of Directors is the first mentioned of the following Officers (if appointed) who is a Director and is present at the meeting: Chairperson of the Board, Managing Director, or President. If none of the foregoing Officers are present, the Directors present may choose one of their number to be chairperson of the meeting.

 

9. Decision on Questions

 

Every resolution submitted to a meeting of Directors or of a committee of Directors must be decided by a majority of votes cast at the meeting. In the case of an equality of votes, the chairperson does not have a casting vote.

 

10. Meeting by Telephone

 

If all the Directors consent, a Director may participate in a meeting of Directors or of a committee of Directors by means of telephone or other communication facilities that permit all persons participating in the meeting to hear each other. A Director participating in a meeting by means of telephone or other communication facilities is deemed to be present at the meeting.

 

7


11. Resolution in Lieu of Meeting

 

A resolution in writing signed by all the Directors entitled to vote on that resolution at a meeting of Directors or committee of Directors is as valid as if it had been passed at a meeting of Directors or committee of Directors. A resolution in writing takes effect on the date it is expressed to be effective.

 

A resolution in writing may be signed in one or more counterparts, all of which together constitute the same resolution. A counterpart signed by a Director and transmitted by facsimile or other device capable of transmitting a printed message is as valid as an originally signed counterpart.

 

SECTION VI

OFFICERS AND APPOINTEES OF THE BOARD

 

1. Appointment of Officers

 

The Directors may designate the offices of the Corporation, appoint as officers individuals of full capacity, specify their duties and delegate to them powers to manage the business and affairs of the Corporation, except those powers referred to in section IV which may not be delegated to a Managing Director or to a committee of Directors. Unless required by the By-laws, an Officer does not have to be a Director. The same individual may hold two or more offices of the Corporation.

 

2. Term of Office

 

An Officer holds office from the date of the Officer’s appointment until a successor is appointed or until the Officer’s resignation or removal. An officer may resign by giving written notice to the Board. All Officers are subject to removal by the Board, with or without cause.

 

3. Duties of Officers

 

An Officer has all the powers and authority and must perform all the duties usually incident to, or specified in the By-laws or by the Board for, the office held.

 

4. Remuneration

 

The Officers are entitled to receive remuneration for their services in the amount the Board determines. The Directors must disclose to the Shareholders the aggregate remuneration paid to the five highest Officers. The disclosure must be in a written document to be placed before the Shareholders at every annual meeting of Shareholders and must relate to the same time period as the financial statements required to be presented at the meeting relate to.

 

5. Chairperson of the Board

 

If appointed and present at the meeting, the Chairperson of the Board presides at all meetings of Directors, committees of Directors and, in the absence of the President, at all meetings of Shareholders. The Chairperson of the Board must be a Director.

 

6. Managing Director

 

If appointed, the Managing Director is responsible for the general supervision of the affairs of the Corporation. During the absence or disability of the Chairperson of the Board, or if no Chairperson of the Board has been appointed, the Managing Director exercises the functions of that office. Subject to section IV, the Board may delegate to the Managing Director any of the powers of the Board.

 

8


7. President

 

If appointed, the President is the chief executive officer of the Corporation responsible for the management of the business and affairs of the Corporation. During the absence or disability of the Managing Director, or if no Managing Director has been appointed, the President also exercises the functions of that office. The President may not preside as chairperson at any meeting of the Directors or of any committee of Directors unless the President is a Director.

 

8. Vice-President

 

During the absence or disability of the President, or if no President has been appointed, the Vice-President or if there is more than one, the Vice-President designated by the Board, exercises the functions of the office of the President.

 

9. Secretary

 

If appointed, the Secretary shall call meetings of the Directors or of a committee of Directors at the request of a Director. The Secretary shall attend all meetings of Directors, of committees of Directors and of Shareholders and prepare and maintain a record of the minutes of the proceedings. The Secretary is the custodian of the corporate seal, the minute book and all records, documents and instruments belonging to the Corporation.

 

10. Treasurer

 

If appointed, the Treasurer is responsible for the preparation and maintenance of proper accounting records, the deposit of money, the safe-keeping of securities and the disbursement of funds of the Corporation. The Treasurer must render to the Board an account of all financial transactions of the Corporation upon request.

 

11. Agents and Attorneys

 

The Board has the power to appoint agents or attorneys for the Corporation in or outside of Canada with any power the Board considers advisable.

 

SECTION VII

CONFLICT OF INTEREST

 

1. Disclosure of Interest

 

A Director or Officer who:

 

  (a) is a party to a material contract or proposed material contract with the Corporation; or

 

  (b) is a director or an officer of or has a material interest in any person who is a party to a material contract or proposed material contract with the Corporation,

 

must disclose in writing to the Corporation or request to have entered in the minutes of meetings of the Directors the nature and extent of the Director’s or Officer’s interest.

 

2. Approval and Voting

 

A Director or Officer must disclose in writing to the Corporation, or request to have entered in the minutes of meetings of Directors, the nature and extent of the Director’s or Officer’s interest in a material contract or proposed material contract if the contract is one that in the ordinary course of the Corporation’s business would not require approval by the Board or the Shareholders. The disclosure must be made immediately after the Director or Officer becomes aware of the contract or proposed contract. A Director who is required to disclose an interest in a material contract or proposed material contract may not vote on any resolution to approve the contract unless the contract is:

 

  (a) an arrangement by way of security for money lent to or obligations undertaken by the Director, or by a body corporate in which the Director has an interest, for the benefit of the Corporation or an affiliate;

 

9


  (b) a contract relating primarily to the Directors remuneration as a Director or Officer, employee or agent of the Corporation or as a director, officer, employee or agent of an affiliate;

 

  (c) a contract for indemnity or insurance under the ABCA; or

 

  (d) a contract with an affiliate.

 

3. Effect of Conflict of Interest

 

If a material contract is made between the Corporation and a Director or Officer, or between the Corporation and another person of which a Director or Officer is a director or officer or in which the Director or Officer has a material interest:

 

  (a) the contract is neither void nor voidable by reason only of that relationship, or by reason only that a Director with an interest in the contract is present at or is counted to determine the presence of a quorum at a meeting of Directors or committee of Directors that authorized the contract; and

 

  (b) a Director or Officer or former Director or Officer to whom a profit accrues as a result of the making of the contract is not liable to account to the Corporation for that profit by reason only of holding office as a Director or Officer,

 

if the Director or Officer disclosed the Director’s or Officer’s interest in the contract in the manner prescribed by the ABCA and the contract was approved by the Board or the Shareholders and was reasonable and fair to the Corporation at the time it was approved.

 

SECTION VIII

LIABILITY AND INDEMNIFICATION

 

1. Limitation of Liability

 

Every Director and Officer in exercising the powers and discharging the duties of office must act honestly and in good faith with a view to the best interests of the Corporation and must exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. No Director or Officer is liable for:

 

  (a) the acts, omissions or defaults of any other Director or Officer or an employee of the Corporation;

 

  (b) any loss, damage or expense incurred by the Corporation through the insufficiency or deficiency of title to any property acquired for or on behalf of the Corporation;

 

  (c) the insufficiency or deficiency of any security in or upon which any of the money of the Corporation is invested;

 

  (d) any loss or damage arising from the bankruptcy, insolvency or tortious or criminal acts of any person with whom any of the Corporation’s money is, or securities or other property are, deposited;

 

  (e) any loss occasioned by any error of judgment or oversight; or

 

  (f) any other loss, damage or misfortune which occurs in the execution of the duties of office or in relation to it,

 

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unless occasioned by the willful neglect or default of that Director or Officer. Nothing in this By-law relieves any Director or Officer of any liability imposed by the ABCA or otherwise by law.

 

2. Indemnity

 

The Corporation shall indemnify a Director or Officer, a former Director or Officer and a person who acts or acted at the Corporation’s request as a director or officer of a body corporate of which the Corporation is or was a shareholder or creditor (the “Indemnified Parties”) and the heirs and legal representatives of each of them, against all costs, charges and expenses, which includes, without limiting the generality of the foregoing, the fees, charges and disbursements of legal counsel on an as-between-a-solicitor-and-the-solicitor’s-own-client basis and an amount paid to settle an action or satisfy a judgment, reasonably incurred by an Indemnified Party, or the heirs or legal representatives of an Indemnified Party, or both, in respect of any action or proceeding to which any of them is made a party by reason of an Indemnified Party being or having been a Director or Officer or a director or officer of that body corporate, if:

 

  (a) the Indemnified Party acted honestly and in good faith with a view to the best interests of the Corporation; and

 

  (b) in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, the Indemnified Party had reasonable grounds for believing that the Indemnified Party’s conduct was lawful.

 

The Corporation shall indemnify an Indemnified Party and the heirs and legal representatives of an Indemnified Party in any other circumstances that the ABCA permits or requires. Nothing in this By-law limits the right of a person entitled to indemnity to claim indemnity apart from the provisions of this By-law.

 

3. Insurance

 

The Corporation may purchase and maintain insurance for the benefit of a person referred to in subsection (2) against the liabilities and in the amounts the ABCA permits and the Board approves.

 

SECTION IX

SECURITIES

 

1. Shares

 

Shares of the Corporation may be issued at the times, to the persons and for the consideration the Board determines. No share may be issued until the consideration for the share is fully paid in money or in property or past service that is not less in value than the fair equivalent of the money that the Corporation would have received if the share had been issued for money.

 

2. Options and Other Rights to Acquire Securities

 

The Corporation may issue certificates, warrants or other evidences of conversion privileges, options or rights to acquire securities of the Corporation. The conditions attached to the conversion privileges, options and rights must be set out in the certificates, warrants or other evidences or in certificates evidencing the securities to which the conversion privileges, options or rights are attached.

 

3. Commissions

 

The Board may authorize the Corporation to pay a reasonable commission to any person in consideration of that person purchasing or agreeing to purchase shares of the Corporation from the Corporation or from any other person, or procuring or agreeing to procure purchasers for shares of the Corporation.

 

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4. Securities Register

 

The Corporation shall maintain at its records office a securities register in which it records the securities issued by it in registered form, showing with respect to each class or series of securities:

 

  (a) the names, alphabetically arranged and the latest known address of each person who is or has been a security holder;

 

  (b) the number of securities held by each security holder; and

 

  (c) the date and particulars of the issue and transfer of each security.

 

The Corporation shall keep information relating to a security holder that is entered in the securities register for at least seven years after the security holder ceases to be a security holder.

 

5. Transfer Agents and Registrars

 

The Corporation may appoint one or more trust corporations as its agent to maintain a central securities register and one or more agents to maintain a branch securities register. An agent may be designated as a transfer agent or a branch transfer agent, and a registrar, according to the agent’s function. An agent’s appointment may be terminated at any time. The Board may provide for the registration or transfer of securities by a transfer agent, branch transfer agent or registrar.

 

6. Dealings with Registered Holders

 

The Corporation may treat the registered owner of a security as the person exclusively entitled to vote, to receive notices, to receive any interest, dividend or other payments in respect of the security, and otherwise to exercise all the rights and powers of an owner of the security.

 

7. Transfers of Securities

 

Securities of the Corporation may be transferred in the form of a transfer endorsement on the security certificates issued in respect of the securities of the Corporation, or in any form of transfer endorsement which may be approved by resolution of the Board.

 

8. Registration of Transfers

 

If a security in registered form is presented for registration of transfer, the Corporation must register the transfer if:

 

  (a) the security is endorsed by the person specified by the security or by special endorsement to be entitled to the security or by the person’s successor, fiduciary, survivor, attorney or authorized agent, as the case may be;

 

  (b) reasonable assurance is given that the endorsement is genuine and effective;

 

  (c) the Corporation has no duty to inquire into adverse claims, or has discharged its duty to do so;

 

  (d) any applicable law relating to the collection of taxes has been complied with;

 

  (e) the transfer is rightful or is to a bona fide purchaser; and

 

  (f) the fee prescribed by the Board for a security certificate issued in respect of a transfer has been paid.

 

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9. Lien

 

If the Articles provide that the Corporation has a lien on a share registered in the name of a Shareholder or the Shareholder’s legal representative for a debt of the Shareholder to the Corporation, and the Shareholder is indebted to the Corporation, the Corporation may refuse to register any transfer of the holder’s shares pending enforcement of the lien.

 

10. Security Certificates

 

Security certificates and acknowledgments of a security holder’s right to obtain a security certificate must be in a form the Board approves by resolution. A security certificate must be signed by at least one Director or Officer. Unless the Board otherwise determines, security certificates representing securities in respect of which a transfer agent or registrar has been appointed are not valid unless countersigned by or on behalf of the transfer agent or registrar. Any signature may be printed or otherwise mechanically reproduced on a security certificate. If a security certificate contains a printed or mechanically reproduced signature of a person, the Corporation may issue the security certificate, notwithstanding that the person has ceased to be a Director or Officer, and the security certificate is as valid as if the person were a Director or Officer at the date of issue.

 

11. Entitlement to a Security Certificate

 

A security holder is entitled at the holder’s option to a security certificate or to a non-transferable written acknowledgment of the holder’s right to obtain a security certificate from the Corporation in respect of the securities of the Corporation held by that holder.

 

12. Securities Held Jointly

 

The Corporation is not required to issue more than one security certificate in respect of securities held jointly by several persons. Delivery of a certificate to one of the joint holders is sufficient delivery to all of them. Any one of the joint holders may give effectual receipts for the certificate issued in respect of the securities or for any dividend, bonus, return of capital or other money payable or warrant issuable in respect of the security.

 

13. Replacement of Security Certificates

 

The Board or an Officer or agent designated by the Board may in its or the Officer’s or agent’s discretion direct the issue of a new security certificate in place of a certificate that has been lost, destroyed or wrongfully taken. A new security certificate may be issued only on payment of a reasonable fee and on any terms as to indemnity, reimbursement of expenses and evidence of loss of title as the Board may prescribe.

 

14. Fractional Shares

 

The Corporation may issue a certificate for a fractional share or may issue in its place scrip certificates in a form that entitles the holder to receive a certificate for a full share by exchanging scrip certificates aggregating a full share. The Directors may attach conditions to any scrip certificates issued by the Corporation, including conditions that:

 

  (a) the scrip certificates become void if they are not exchanged for a share certificate representing a full share before a specified date; and

 

  (b) any shares for which those scrip certificates are exchangeable may, notwithstanding any pre-emptive right, be issued by the Corporation to any person and the proceeds of those shares distributed ratably to the holders of the scrip certificates.

 

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SECTION X

MEETINGS OF SHAREHOLDERS

 

1. Annual Meeting of Shareholders

 

The Board must call an annual meeting of Shareholders to be held not later than 18 mouths after the date of incorporation and subsequently, not later than 15 months after holding the last preceding annual meeting. An annual meeting is to be held for the purposes of considering the financial statements and auditor’s report, fixing the number of Directors for the following year, electing Directors, appointing an auditor and transacting any other business that may properly be brought before the meeting.

 

2. Special Meetings of Shareholders

 

The Board may at any time call a special meeting of Shareholders.

 

3. Special Business

 

All business transacted at a special meeting of Shareholders and all business transacted at an annual meeting of Shareholders, except consideration of the financial statements and auditor’s report, fixing the number of Directors for the following year, election of Directors and reappointment of the incumbent auditor, is deemed to be special business.

 

4. Place and Time of Meetings

 

Meetings of Shareholders may be held at the place within Ontario and at the time the Board determines. A meeting of Shareholders may be held outside Ontario if all the Shareholders entitled to vote at that meeting agree to holding the meeting outside Ontario. A Shareholder who attends a meeting of Shareholders held outside Ontario is deemed to have agreed to holding the meeting outside Ontario, except when the Shareholder attends the meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully held.

 

5. Notice of Meetings

 

Notice of the time and place of a meeting of Shareholders must be sent not less than 21 days and not more than 50 days before the meeting to:

 

  (a) each Shareholder entitled to vote at the meeting;

 

  (b) each Director; and

 

  (c) the auditor of the Corporation.

 

Notice of a meeting of Shareholders called for the purpose of transacting any business other than consideration of the financial statements and auditor’s report, fixing the number of Directors for the following year, election of Directors and reappointment of the incumbent auditor must state the nature of the business to be transacted in sufficient detail to permit a Shareholder to form a reasoned judgment on that business and must state the text of any special resolution to be submitted to the meeting.

 

6. Notice of Adjourned Meetings

 

With the consent of the Shareholders present at a meeting of Shareholders, the chairperson may adjourn that meeting to another fixed time and place. If a meeting of Shareholders is adjourned by one or more adjournments for an aggregate of less than 30 days, it is not necessary to give notice of the adjourned meeting, other than by verbal announcement at the time of the adjournment. If a meeting of Shareholders is adjourned by one or more adjournments for an aggregate of 30 days or more, notice of the adjourned meeting must be given as for the original meeting. The adjourned meeting may proceed with the business to have been transacted at the original meeting, even though a quorum is not present at the adjourned meeting.

 

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7. Waiver of Notice

 

A Shareholder and any other person entitled to attend a meeting of Shareholders may waive in any manner notice of a meeting of Shareholders. Attendance of a Shareholder or other person at a meeting of Shareholders is a waiver of notice of the meeting, except when the Shareholder or other person attends the meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called.

 

8. Shareholder List

 

If the Corporation has more than 15 Shareholders entitled to vote at a meeting of Shareholders, the Corporation must prepare a list of Shareholders entitled to receive notice of the meeting, arranged in alphabetical order and showing the number of shares held by each Shareholder,

 

  (a) if a Record Date is fixed, not later than 10 days after that date; or

 

  (b) if no Record Date is fixed,

 

  i) at the close of business on the last business day preceding the day on which the notice is given, or

 

  ii) if no notice is given, on the day on which the meeting is held.

 

A Shareholder may examine the list of Shareholders:

 

  (c) during usual business hours at the Corporation’s records office or at the place where its central securities register is maintained; and

 

  (d) at the meeting of Shareholders for which the list was prepared.

 

9. Persons Entitled to Vote

 

A person named in a list of Shareholders is entitled to vote the shares shown opposite the person’s name at the meeting to which the list relates, except to the extent that:

 

  (a) if:

 

  i) a Record Date is fixed, the person transfers ownership of any of the person’s shares after the Record Date, or

 

  ii) if no Record Date is fixed, the person transfers ownership of any of the person’s shares after the date on which the list of Shareholders is prepared; and

 

  (b) provided that the transferee of those shares

 

  i) produces properly endorsed share certificates, or

 

  ii) otherwise establishes ownership of the shares,

 

and demands, not later than 10 days before the meeting, that the transferee’s name be included in the list before the meeting, then the transferee is entitled to vote the shares.

 

10. Chairperson of Meetings

 

The chairperson of any meeting of Shareholders is the first mentioned of the following Officers (if appointed) who is present at the meeting: President, Chairperson of the Board or Managing Director. If none of the foregoing

 

15


Officers are present, the Shareholders present and entitled to vote at the meeting may choose a chairperson from among those individuals present.

 

11. Scrutineer

 

If desired, one or more scrutineers, who need not be Shareholders, may be appointed by resolution or by the chairperson of the meeting with the consent of the meeting.

 

12. Procedure at Meetings

 

The chairperson of any meeting of Shareholders shall conduct the proceedings at the meeting in all respects. The chairperson’s decision on any matter or thing relating to procedure, including, without limiting the generality of the foregoing, any question regarding the validity of any instrument of proxy or other evidence of authority to vote, is conclusive and binding upon the Shareholders.

 

13. Persons Entitled to be Present

 

The only persons entitled to be present at a meeting of Shareholders are:

 

  (a) the Shareholders entitled to vote at the meeting;

 

  (b) the Directors;

 

  (c) the auditor of the Corporation; and

 

  (d) any others who, although not entitled to vote, are entitled or required under any provision of the ABCA, any unanimous shareholder agreement, the Articles or the By-laws to be present at the meeting.

 

Any other person may be admitted only on the invitation of the chairperson of the meeting or with the consent of the meeting.

 

14. Quorum

 

A quorum of Shareholders is present at a meeting of Shareholders if a holder or holders of not less than 5% of the shares entitled to vote at a meeting of shareholders are present in person or by proxy. If any share entitled to be voted at a meeting of Shareholders is held by two or more persons jointly, the persons or those of them who attend the meeting of Shareholders constitute only one Shareholder for the purpose of determining whether a quorum of Shareholders is present.

 

15. Loss of Quorum

 

If a quorum is present at the opening of a meeting of Shareholders, the Shareholders present or represented by proxy may proceed with the business of the meeting, even if a quorum is not present throughout the meeting. If a quorum is not present at the opening of a meeting of Shareholders, the Shareholders present or represented by proxy may adjourn the meeting to a fixed time and place but may not transact any other business.

 

16. Proxy Holders and Representatives

 

A Shareholder entitled to vote at a meeting of Shareholders may by means of a proxy appoint a proxy holder and one or more alternate proxy holders, who are not required to be Shareholders, to attend and act at the meeting in the manner and to the extent authorized by the proxy and with the authority conferred by the proxy. A proxy must be executed by the Shareholder or by the Shareholder’s attorney authorized in writing and be in the form prescribed by the Regulations. A proxy is valid only at the meeting in respect of which it is given or any adjournment of that meeting.

 

16


A Shareholder that is a body corporate or association may, by resolution of its directors or governing body, authorize an individual to represent it in person at a meeting of Shareholders. That individual’s authority may be established by depositing with the Corporation prior to the commencement of the meeting a certified copy of the resolution passed by the Shareholder’s directors or governing body or other evidence of the individual’s authority to vote. A resolution or other evidence of authority to vote is valid only at the meeting in respect of which it is given or any adjournment of that meeting.

 

17. Time for Deposit of Proxies

 

The Board may specify in a notice calling a meeting of Shareholders a time not exceeding 48 hours, excluding Saturdays and holidays, preceding the meeting or an adjournment of the meeting before which proxies to be used at the meeting must be deposited with the Corporation or its agent. If no time for the deposit of proxies has been specified in a notice calling a meeting of Shareholders, a proxy to be used at the meeting must be deposited with the Secretary of the Corporation or the chairperson of the meeting prior to the commencement of the meeting.

 

18. Revocation of Proxies

 

A Shareholder may revoke a proxy:

 

  (a) by depositing an instrument in writing executed by the Shareholder or by the Shareholder’s attorney authorized in writing:

 

  i) at the registered office of the Corporation at any time up to and including the last business day preceding the day of the meeting, or an adjournment of that meeting, at which the proxy is to be used, or

 

  ii) with the chairperson of the meeting on the day of the meeting or an adjournment of the meeting; or

 

  (b) in any other manner permitted by law.

 

19. Joint Shareholders

 

If two or more persons hold shares jointly, one of those holders present at a meeting of Shareholders may, in the absence of the others, vote the shares. If two or more of those persons are present in person or by proxy, they must vote as one on the shares jointly held by them.

 

20. Decision on Questions

 

At every meeting of Shareholders all questions proposed for the consideration of Shareholders must be decided by the majority of votes, unless otherwise required by the ABCA or the Articles. In the case of an equality of votes, the chairperson of the meeting does not, either on a show of hands or verbal poll or on a ballot, have a casting vote in addition to the vote or votes to which the chairperson may be entitled as a Shareholder or proxy holder.

 

21. Voting by Show of Hands

 

Subject to subsection (22), voting at a meeting of Shareholders shall be by a show of hands of those present in person or represented by proxy or by a verbal poll of those present by telephone or other communication facilities. When a vote by show of hands has been taken upon a question, a declaration by the chairperson of the meeting that the vote has been carried, carried by a particular majority or not carried, an entry to that effect in the minutes of the meeting is conclusive evidence of the fact without proof of the number of votes recorded in favour of or against any resolution or other proceeding in respect of the question.

 

17


22. Voting by Ballot

 

If a ballot is required by the chairperson of the meeting or is demanded by a Shareholder or proxy holder entitled to vote at the meeting, either before or on the declaration of the result of a vote by a show of hands or verbal poll, voting must be by ballot. A demand for a ballot may be withdrawn at any time before the ballot is taken. If a ballot is taken on a question, a prior vote on that question by show of hands or verbal poll has no effect.

 

23. Number of Votes

 

At every meeting a Shareholder present in person or represented by proxy or present by telephone or other communication facilities and entitled to vote has one vote for each share held.

 

24. Meeting by Telephone

 

Any person described in subsection (13) may participate in a meeting of Shareholders by means of telephone or other communication facilities that permit all persons participating in the meeting to hear each other. A Shareholder participating in a meeting by means of telephone or other communication facilities is deemed to be present at the meeting.

 

25. Resolution in Lieu of Meeting

 

A resolution in writing signed by all the Shareholders entitled to vote on that resolution at a meeting of Shareholders is as valid as if it had been passed at a meeting of Shareholders. A resolution in writing takes effect on the date it is expressed to be effective.

 

A resolution in writing may be signed in one or more counterparts, all of which together constitute the same resolution. A counterpart signed by a Shareholder and transmitted by facsimile or other device capable of transmitting a printed message is as valid as an originally signed counterpart.

 

SECTION XI

NOTICES

 

1. Method of Notice

 

A notice or document required to be sent to a Shareholder, Director, Officer or auditor of the Corporation may be given by personal delivery, prepaid transmitted or recorded communication or prepaid mail addressed to the recipient at the recipient’s Recorded Address. A notice or documents sent by personal delivery is deemed to be given when it is actually delivered. A notice or document sent by means of prepaid transmitted or recorded communication is deemed to be given when dispatched or delivered to the appropriate communication company or agency or its representative for dispatch. A notice or document sent by mail is deemed to be given when deposited at a post office or in public letter box.

 

2. Notice to Joint Shareholders

 

If two or more persons are registered as joint holders of any share, a notice or document may be sent or delivered to all of them, but notice given to any one joint Shareholder is sufficient notice to the others.

 

3. Notice to Successors

 

Every person who, by operation of law, transfer, death of a Shareholder or any other means becomes entitled to any share, is bound by every notice in respect of the share which is sent or delivered to the Shareholder prior to the person’s name and address being entered in the Corporation’s securities register and prior to the person furnishing proof of authority or evidence of entitlement as prescribed by the ABCA. This subsection applies whether the notice was given before or after the event which resulted in the person becoming entitled to the share.

 

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4. Non-Receipt of Notice

 

If a notice or document is sent to a Shareholder, Director, Officer or auditor of the Corporation in accordance with subsection (1) and the notice or document is returned on three consecutive occasions, the Corporation is not required to give any further notice or documents to the person until that person informs the Corporation in writing of the person’s new address.

 

5. Failure to Give Notice

 

The accidental failure to give a notice to a Shareholder, Director, Officer or auditor of the Corporation, the non-receipt of a notice by the intended recipient or any error in a notice not affecting its substance does not invalidate any action taken at the meeting to which the notice relates.

 

6. Execution of Notices

 

Unless otherwise provided, the signature of any person designated by resolution of the Board to sign a notice or document on behalf of the Corporation may be written, stamped or printed.

 

MADE by the Directors as evidenced by the signature of the following Directors effective        the day of                      , 2000.

 

 
Director

 

CONFIRMED by the Shareholders as evidenced by the signature of the following Shareholder effective the        of                      , 2000.

 

 
Shareholder

 

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EXHIBIT 4.1

 

TRUST INDENTURE

 

Dated as of the 12th day of November, 2004

 

BETWEEN

 

GASTAR EXPLORATION LTD.

 

and

 

CIBC MELLON TRUST COMPANY

 

Providing for the issue of Debentures


TABLE OF CONTENTS

 

          Page

TABLE OF CONTENTS    i
ARTICLE 1 INTERPRETATION    1
1.1    Definitions    1
1.2    Meaning of “Outstanding”    6
1.3    Interpretation    6
1.4    Headings Etc.    6
1.5    Day not a Business Day    7
1.6    Applicable Law    7
1.7    Monetary References    7
1.8    U.S. Currency Equivalents    7
1.9    Invalidity, Etc.    7
1.10    Language    7
1.11    Successors and Assigns    7
1.12    Benefits of Indenture    7
ARTICLE 2 THE DEBENTURES    8
2.1    Limit of Debentures    8
2.2    Terms of Debentures of any Series    8
2.3    Form of Debentures    9
2.4    Form and Terms of Initial Debentures    9
2.5    Certification and Delivery of Additional Debentures    13
2.6    Issue of Global Debentures    14
2.7    Execution of Debentures    15
2.8    Certification    15
2.9    Interim Debentures or Certificates    15
2.10    Mutilation, Loss, Theft or Destruction    16
2.11    Concerning Interest    16
2.12    Debentures to Rank Pari Passu    16
2.13    Payments of Amounts Due on Maturity    16
2.14    Resale Restrictions and Legends    17
2.15    Payment of Interest    19
ARTICLE 3 REGISTRATION, TRANSFER, EXCHANGE AND OWNERSHIP    20
3.1    Global Debentures    20
3.2    Fully Registered Debentures    21
3.3    Transferee Entitled to Registration    21
3.4    No Notice of Trusts    22
3.5    Registers Open for Inspection    22
3.6    Exchanges of Debentures    22
3.7    Closing of Registers    22
3.8    Charges for Registration, Transfer and Exchange    23
3.9    Ownership of Debentures    23
ARTICLE 4 REDEMPTION AND PURCHASE OF DEBENTURES    23
4.1    Applicability of Article    23
4.2    Partial Redemption    24
4.3    Notice of Redemption    24
4.4    Debentures Due on Redemption Dates    25
4.5    Deposit of Redemption Monies    25
4.6    Failure to Surrender Debentures Called for Redemption    25
4.7    Cancellation of Debentures Redeemed    26
4.8    Purchase of Debentures by the Corporation    26


ARTICLE 5 SUBORDINATION OF DEBENTURES    26
5.1    Applicability of Article    26
5.2    Order of Payment    26
5.3    Subrogation to Rights of Holders of Senior Indebtedness    27
5.4    Obligation to Pay Not Impaired    28
5.5    No Payment if Senior Indebtedness in Default    28
5.6    Payment on Debentures Permitted    28
5.7    Confirmation of Subordination    29
5.8    Knowledge of Debenture Trustee    29
5.9    Debenture Trustee May Hold Senior Indebtedness    29
5.10    Rights of Holders of Senior Indebtedness Not Impaired    29
5.11    Altering the Senior Indebtedness    29
5.12    Additional Indebtedness    29
5.13    Right of Debentureholder to Convert Not Impaired    29
5.14    Invalidated Payments    30
5.15    Contesting Security    30
ARTICLE 6 CONVERSION OF DEBENTURES    30
6.1    Applicability of Article    30
6.2    Notice of Expiry of Conversion Privilege    30
6.3    Revival of Right to Convert    30
6.4    Manner of Exercise of Right to Convert    30
6.5    Adjustment of Conversion Price    32
6.6    No Requirement to Issue Fractional Common Shares    34
6.7    Corporation to Reserve Common Shares    35
6.8    Cancellation of Converted Debentures    35
6.9    Certificate as to Adjustment    35
6.10    Notice of Special Matters    35
6.11    Protection of Debenture Trustee    35
6.12    Legend on Common Shares    36
ARTICLE 7 COVENANTS OF THE CORPORATION    36
7.1    To Pay Principal and Interest    36
7.2    To Pay Debenture Trustee’s Remuneration    36
7.3    To Give Notice of Default    36
7.4    Preservation of Existence, Status, etc.    37
7.5    Keeping of Books    37
7.6    Reporting Requirements    37
7.7    No Distributions on Common Shares if Event of Default    37
7.8    Performance of Covenants by Debenture Trustee    37
ARTICLE 8 DEFAULT    37
8.1    Events of Default    37
8.2    Notice of Events of Default    39
8.3    Waiver of Default    39
8.4    Enforcement by the Debenture Trustee    39
8.5    No Suits by Debentureholders    40
8.6    Application of Monies by Debenture Trustee    41
8.7    Notice of Payment by Debenture Trustee    41
8.8    Debenture Trustee May Demand Production of Debentures    42
8.9    Remedies Cumulative    42
8.10    Judgment Against the Corporation    42
8.11    Immunity of Debenture Trustee and Others    42
ARTICLE 9 SATISFACTION AND DISCHARGE    42
9.1    Cancellation and Destruction    42
9.2    Non-Presentation of Debentures    42
9.3    Repayment of Unclaimed Monies    43
9.4    Discharge    43
9.5    Satisfaction    43
9.6    Continuance of Rights, Duties and Obligations    44

 

ii


ARTICLE 10 SUCCESSORS    45
10.1    Restrictions on Amalgamation, Merger and Sale of Certain Assets, etc.    45
10.2    Vesting of Powers in Successor    45
ARTICLE 11 COMPULSORY ACQUISITION    45
11.1    Definitions    45
11.2    Offer for Debentures    46
11.3    Offeror’s Notice to Dissenting Shareholders    46
11.4    Delivery of Debenture Certificates    46
11.5    Payment of Consideration to Debenture Trustee    47
11.6    Consideration to be held in Trust    47
11.7    Completion of Transfer of Debentures to Offeror    47
11.8    Communication of Offer to Corporation    47
ARTICLE 12 MEETINGS OF DEBENTUREHOLDERS    48
12.1    Right to Convene Meeting    48
12.2    Notice of Meetings    48
12.3    Chairman    49
12.4    Quorum    49
12.5    Power to Adjourn    49
12.6    Show of Hands    50
12.7    Poll    50
12.8    Voting    50
12.9    Proxies    50
12.10    Persons Entitled to Attend Meetings    51
12.11    Powers Exercisable by Extraordinary Resolution    51
12.12    Meaning of “Extraordinary Resolution”    53
12.13    Powers Cumulative    53
12.14    Minutes    53
12.15    Instruments in Writing    54
12.16    Binding Effect of Resolutions    54
12.17    Evidence of Rights Of Debentureholders    54
12.18    Concerning Serial Meetings    54
ARTICLE 13 NOTICES    54
13.1    Notice to Corporation    54
13.2    Notice to Debentureholders    55
13.3    Notice to Debenture Trustee    55
13.4    Mail Service Interruption    55
ARTICLE 14 CONCERNING THE DEBENTURE TRUSTEE    55
14.1    No Conflict of Interest    55
14.2    Replacement of Debenture Trustee    56
14.3    Duties of Debenture Trustee    56
14.4    Reliance Upon Declarations, Opinions, etc.    56
14.5    Evidence and Authority to Debenture Trustee, Opinions, etc.    57
14.6    Officer’s Certificates Evidence    58
14.7    Experts, Advisers and Agents    58
14.8    Debenture Trustee May Deal in Debentures    58
14.9    Investment of Monies Held by Debenture Trustee    58
14.10    Debenture Trustee Not Ordinarily Bound    59
14.11    Debenture Trustee Not Required to Give Security    59
14.12    Debenture Trustee Not Bound to Act on Corporation’s Request    59
14.13    Conditions Precedent to Debenture Trustee’s Obligations to Act Hereunder    59
14.14    Authority to Carry on Business    59
14.15    Compensation and Indemnity    60
14.16    Acceptance of Trust    60
ARTICLE 15 SUPPLEMENTAL INDENTURES    61
15.1    Supplemental Indentures    61
ARTICLE 16 EXECUTION AND FORMAL DATE    62
16.1    Execution    62
16.2    Formal Date    62
16.3    Counterparts    62

 

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THIS INDENTURE made as of the 12th day of November, 2004.

 

BETWEEN:

 

GASTAR EXPLORATION LTD. , a corporation existing under the laws of the Province of Alberta and having its principal office in the City of Mt. Pleasant, in the State of Michigan (hereinafter called the “ Corporation ”)

 

AND

 

CIBC MELLON TRUST COMPANY , a trust company existing under the laws of Canada having an office in the City of Calgary, in the Province of Alberta (hereinafter called the “ Debenture Trustee ”), on its own right and on behalf of the Debentureholders

 

WITNESSETH THAT:

 

WHEREAS the Corporation proposes to create and issue the Debentures (defined herein) to be created and issued in the manner hereinafter appearing;

 

AND WHEREAS the Corporation, under the laws relating thereto, is duly authorized to create and issue the Debentures to be issued as herein provided;

 

AND WHEREAS, when certified by the Debenture Trustee and issued as in this Indenture provided, all necessary steps in relation to the Corporation have been duly enacted, passed and/or confirmed and other proceedings taken and conditions complied with to make the creation and issue of the Debentures proposed to be issued hereunder legal, valid and binding on the Corporation in accordance with the laws relating to the Corporation;

 

AND WHEREAS the foregoing recitals are made as representations and statements of fact by the Corporation and not by the Debenture Trustee;

 

NOW THEREFORE it is hereby covenanted, agreed and declared as follows:

 

ARTICLE 1

INTERPRETATION

 

1.1 Definitions

 

In this Indenture and in the Debentures, unless there is something in the subject matter or context inconsistent therewith, the expressions following shall have the following meanings, namely:

 

(a) this Indenture ”, “ this Trust Indenture ”, “ hereto ”, “ herein ”, “ hereby ”, “ hereunder ”, “ hereof ” and similar expressions refer to this Indenture and not to any particular Article, Section, subsection, clause, subdivision or other portion hereof and include any and every instrument supplemental or ancillary hereto;

 

(b) Additional Debentures ” means Debentures of any one or more series, other than the first series of Debentures being the Initial Debentures, issued under this Indenture;

 

(c) Applicable Securities Legislation ” means applicable securities laws in each of the Provinces of Canada and the United States and each of its states;

 

(d) Beneficial Holder ” means any person who holds a beneficial interest in a Global Debenture as shown on the books of the Depository or a Depository Participant;


(e) Business Day ” means any day other than a Saturday, Sunday or any other day that the Debenture Trustee in Calgary, Alberta is not generally open for business;

 

(f) Canadian Legend ” has the meaning attributed thereto in Section 2.14(b);

 

(g) Change of Control ” means the acquisition by any Person, or group of Persons acting jointly or in concert under an express voting trust or agreement, of voting control or direction of Common Shares, or securities convertible into or carrying the right to acquire Common Shares, representing an aggregate of 66 2/3% or more of the outstanding Common Shares;

 

(h) Common Shares ” means common shares of the Corporation, as such common shares are constituted on the date of execution and delivery of this Indenture; provided that in the event of a change or a subdivision, revision, reduction, combination or consolidation thereof, any reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, sale or conveyance or liquidation, dissolution or winding-up, or such successive changes, subdivisions, redivisions, reductions, combinations or consolidations, reclassifications, capital reorganizations, consolidations, amalgamations, arrangements, mergers, sales or conveyances or liquidations, dissolutions or windings-up, then, subject to adjustments, if any, having been made in accordance with the provisions of Section 6.5, “Common Shares” shall mean the common shares or other securities or property resulting from such change, subdivision, redivision, reduction, combination or consolidation, reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, sale or conveyance or liquidation, dissolution or winding-up;

 

(i) Conversion Price ” means the US dollar amount for which each Common Share may be issued from time to time upon the conversion of Debentures or any series of Debentures which are by their terms convertible in accordance with the provisions of Article 6;

 

(j) Corporation ” means Gastar Exploration Ltd., an Alberta corporation, and includes any successor to or of the Corporation which shall have complied with the provisions of Article 10;

 

(k) Corporation’s Auditors ” or “ Auditors of the Corporation ” means an independent firm of chartered accountants duly appointed as auditors of the Corporation;

 

(l) Counsel ” means a barrister or solicitor or firm of barristers or solicitors (whether qualified to practice law in Canada, the United States, or elsewhere) acceptable to the Debenture Trustee;

 

(m) Current Market Price ” means the weighted average price per Common Shares for 20 trading days in any consecutive 30 day period ending on the fifth trading day preceding the date of determination on the Toronto Stock Exchange (or, if the Common Shares are not listed thereon, on such stock exchange on which the Common Shares are listed as may be selected for such purpose by the Corporation, or if the Common Shares are not listed on any stock exchange, then on the over-the-counter market). The weighted average price shall be determined by dividing the aggregate sale price of all Common Shares sold on the said exchange or market, as the case may be, during the said 20 trading days selected by the Corporation in such consecutive 30 day period by the total number of Common Shares so sold;

 

(n) Debentureholders ” or “ holders ” means the Persons for the time being entered in the register for Debentures as registered holders of Debentures payable to a named payee or any transferees of such Persons by endorsement or delivery;

 

(o) Debentures ” means the debentures, notes or other evidence of indebtedness of the Corporation issued and certified hereunder, or deemed to be issued and certified hereunder, including, without limitation, the Initial Debentures, and for the time being outstanding, whether in definitive or interim form;

 

(p)

Depository ” means, with respect to the Debentures of any series issuable or issued in the form of one or more Global Debentures, the person designated as depository by the Corporation pursuant to Section 3.2 until a successor depository shall have become such pursuant to the applicable provisions of this Indenture,

 

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and thereafter “Depository” shall mean each person who is then a depository hereunder, and if at any time there is more than one such person, “Depository” as used with respect to the Debentures of any series shall mean each depository with respect to the Global Debentures of such series;

 

(q) Depository Participant ” means a broker, dealer, bank, other financial institution or other person for whom from time to time, a Depository effects book entry for a Global Debenture deposited with the Depository;

 

(r) dividends or distributions paid in the ordinary course ” means any dividends paid on the Common Shares of the Corporation, whether in (1) cash, (2) shares of the Corporation, (3) rights, options or warrants to purchase any shares, property or other assets of the Corporation (but excluding rights, options or warrants referred to in subsection 6.5(b) or 6.5(c)(ii)), in each case to the extent that the amount or value of any such dividend at the time such dividend is declared, does not, when aggregated with the amount or value of such dividends declared on the Common Shares of the Corporation within the twelve months immediately prior to such declaration, exceed 5% of the Current Market Price on the date that such dividend is declared payable by the Corporation on the Common Shares; and for the purpose of the foregoing where any dividend is declared payable, otherwise than in cash, any securities, property or other assets so distributed by way of dividend shall be valued at the fair market value of such securities, property or other assets, as the case may be, as determined by the Directors in good faith, which determination shall be conclusive;

 

(s) Event of Default ” has the meaning ascribed thereto in Section 8.1;

 

(t) Extraordinary Resolution ” has the meaning ascribed thereto in Section 12.12;

 

(u) Fully Registered Debentures ” means Debentures registered as to both principal and interest;

 

(v) generally accepted accounting principles ” means generally accepted accounting principles from time to time approved by the Canadian Institute of Chartered Accountants, or if the Corporation issues its financial statements solely in accordance with generally accepted accounting principles in the United States, such generally accepted accounting principles as are from time to time in effect in the United States;

 

(w) Global Debenture ” means a Debenture that is issued to and registered in the name of the Depository, or its nominee, pursuant to Section 2.6 for purposes of being held by or on behalf of the Depository as custodian for participants in the Depository’s book-entry only registration system;

 

(x) Government Obligations ” means securities issued or guaranteed by the Government of Canada or any province thereof;

 

(y) Initial Debentures ” means the Debentures designated as “9.75% Convertible Senior Unsecured Subordinated Debentures” and described in Section 2.4;

 

(z) Interest Obligation ” means the obligation of the Corporation to pay interest on the Debentures, as and when the same becomes due;

 

(aa) Interest Payment Date ” means a date specified in a Debenture as the date on which an instalment of interest on such Debenture shall become due and payable;

 

(bb) Legended Debentures ” means Debentures bearing the US Legend or the Canadian Legend provided for in Section 2.14;

 

(cc)

Liquidity Event ” means the occurrence of either of the foregoing: (i) the Registration Statement is declared effective by the United States Securities and Exchange Commission; or (ii) a Written Direction of the Corporation and opinion of Counsel contemplated in the first proviso of Section 2.14(a) is delivered to the Debenture Trustee which cover resales of any outstanding Initial Debentures and Common Shares

 

3


 

issuable upon conversion of such Initial Debentures that are held by persons who are not affiliates of the Corporation within the meaning of the 1933 Act;

 

(dd) Maturity Account ” means an account or accounts required to be established by the Corporation (and which shall be maintained by and subject to the control of the Debenture Trustee) for each series of Debentures pursuant to and in accordance with this Indenture;

 

(ee) Maturity Date ” means the date on which the Initial Debentures mature, or the date on which the Additional Debentures mature, as the case may be;

 

(ff) Officer’s Certificate ” means a certificate of the Corporation signed by any one authorized officer or director of the Corporation, on behalf of the Corporation, in his or her capacity as an officer or director of the Corporation, as the case may be, and not in his or her personal capacity;

 

(gg) Periodic Offering ” means an offering of Debentures of a series from time to time, the specific terms of which Debentures, including, without limitation, the rate or rates of interest, if any, thereon, the stated maturity or maturities thereof and the redemption provisions, if any, with respect thereto, are to be determined by the Corporation upon the issuance of such Debentures from time to time;

 

(hh) Person ” includes an individual, corporation, company, partnership, joint venture, association, trust, trustee, unincorporated organization or government or any agency or political subdivision thereof;

 

(ii) Prescribed Security ” shall have the meaning attributed thereto from time to time pursuant to Regulation 6208 of the Income Tax Act (Canada) and “ Prescribed Securities ” shall have a corresponding meaning;

 

(jj) Redemption Date ” has the meaning attributed thereto in Section 4.3;

 

(kk) Redemption Notice ” has the meaning attributed thereto in Section 4.3;

 

(ll) Redemption Price ” means, in respect of a Debenture, the amount, excluding interest, payable on the Redemption Date fixed for such Debenture;

 

(mm) Regulation S ” means Regulation S adopted by the United States Securities and Exchange Commission under the 1933 Act;

 

(nn) Registration Statement ” means a registration statement of the Corporation filed with the United States Securities and Exchange Commission (including the prospectus, amendments and supplements to such registration statement, including post-effective amendments, all exhibits and all documents incorporated by reference or deemed to be incorporated by reference in such registration statement) that registers the Common Shares issuable upon conversion of the Initial Debentures (other than those that have been previously sold in accordance with Rule 144 under the 1933 Act or are not otherwise restricted securities under the 1933 Act) for resale on a continuous shelf basis by Debentureholders or Beneficial Holders who furnish selling securityholder information to the Corporation for timely inclusion in such registration statement;

 

(oo) Senior Creditor ” means a holder or holders of Senior Indebtedness and includes any representative or representatives or trustee or trustees of any such holder or holders;

 

(pp) Senior Indebtedness ” means the principal of and the interest and premium (or any other amounts payable thereunder), if any, on:

 

  (i)

all indebtedness (including any indebtedness to trade creditors), liabilities and obligations of the Corporation (other than the Initial Debentures), whether outstanding on the date of this Indenture or thereafter created, incurred, assumed or guaranteed in connection with the acquisition by the

 

4


 

Corporation of any businesses, properties or other assets or for monies borrowed or raised by whatever means (including, without limitation, by means of commercial paper, bankers’ acceptances, letters of credit, debt instruments, bank debt and financial leases, and any liability evidenced by bonds, debentures, notes or similar instruments) or in connection with the acquisition of any businesses, properties or other assets or for monies borrowed or raised by whatever means (including, without limitation, by means of commercial paper, bankers’ acceptances, letters of credit, debt instruments, bank debt and financial leases, and any liability evidenced by bonds, debentures, notes or similar instruments) by others including, without limitation, any Subsidiary of the Corporation for payment of which the Corporation is responsible or liable, whether absolutely or contingently;

 

  (ii) without limitation of subparagraph (i), all indebtedness created under the Note Purchase Agreement dated June 24, 2004 from First Texas Development, Inc. to the Purchasers listed on Schedule A thereto, relating to US $15,000,000 principal amount 15% Senior Notes due July 1, 2009, as amended by Letter Agreement dated October 13, 2004, and all indebtedness created under the Note Purchase Agreement dated October 13, 2004 from First Texas Development, Inc. to the Purchasers listed on Schedule A thereto, relating to US $10,000,000 principal amount 15% Senior Notes due October 12, 2007, including any additional indebtedness that may be issued in satisfaction of interest due and payable thereon; and

 

  (iii) renewals, extensions, restructurings, refinancings and refundings of any such indebtedness, liabilities or obligations,

 

unless in each case it is provided by the terms of the instrument creating or evidencing such indebtedness, liabilities or obligations that such indebtedness, liabilities or obligations are not superior in right of payment to Debentures which by their terms are subordinated, which for greater certainty includes the Initial Debentures;

 

(qq) Senior Security ” means all mortgages, liens, pledges, charges (whether fixed or floating), security interests or other encumbrances of any kind, contingent or absolute, held by or on behalf of any Senior Creditor and in any manner securing any Senior Indebtedness;

 

(rr) Subsidiary ” has the meaning ascribed thereto in the Securities Act (Alberta);

 

(ss) Tax Act ” means the Income Tax Act (Canada) and the regulations thereunder, as amended;

 

(tt) Time of Expiry ” means the time of expiry of certain rights with respect to the conversion of Debentures under Article 6 which is to be set forth for each series of Debentures which by their terms are to be convertible;

 

(uu) trading day ” means, with respect to the Toronto Stock Exchange or other market for securities, any day on which such exchange or market is open for trading or quotation;

 

(vv) United States ” means the United States of America, its territories and possessions, any state of the United States and the District of Columbia;

 

(ww) U.S. Currency Equivalent ” has the meaning attributed thereto in Section 1.8;

 

(xx) US Legend ” has the meaning attributed thereto in Section 2.14(a);

 

(yy) Written Direction of the Corporation ” means an instrument in writing signed by any one officer or director of the Corporation; and

 

(zz) “1933 Act” means the United States Securities Act of 1933 , as amended.

 

5


1.2 Meaning of “Outstanding”

 

Every Debenture certified and delivered by the Debenture Trustee hereunder shall be deemed to be outstanding until it is cancelled, converted or redeemed or delivered to the Debenture Trustee for cancellation, conversion or redemption or monies for the payment thereof shall have been set aside under Section 9.2, provided that:

 

(a) Debentures which have been partially redeemed, purchased or converted shall be deemed to be outstanding only to the extent of the unredeemed, unpurchased or unconverted part of the principal amount thereof;

 

(b) when a new Debenture has been issued in substitution for a Debenture which has been lost, stolen or destroyed, only one of such Debentures shall be counted for the purpose of determining the aggregate principal amount of Debentures outstanding; and

 

(c) for the purposes of any provision of this Indenture entitling holders of outstanding Debentures to vote, sign consents, requisitions or other instruments or take any other action under this Indenture, or to constitute a quorum of any meeting of Debentureholders, Debentures owned directly or indirectly, legally or equitably, by the Corporation shall be disregarded except that:

 

  (i) for the purpose of determining whether the Debenture Trustee shall be protected in relying on any such vote, consent, acquisition or other instrument or action, or on the holders of Debentures present or represented at any meeting of Debentureholders, only the Debentures which the Debenture Trustee knows are so owned shall be so disregarded; and

 

  (ii) Debentures so owned which have been pledged in good faith other than to the Corporation shall not be so disregarded if the pledgee shall establish to the satisfaction of the Debenture Trustee the pledgee’s right to vote such Debentures, sign consents, requisitions or other instruments or take such other actions in his discretion free from the control of the Corporation or a Subsidiary of the Corporation.

 

1.3 Interpretation

 

In this Indenture:

 

(a) words importing the singular number or masculine gender shall include the plural number or the feminine or neuter genders, and vice versa;

 

(b) all references to Articles and Schedules refer, unless otherwise specified, to articles of and schedules to this Indenture;

 

(c) all references to Sections refer, unless otherwise specified, to sections, subsections or clauses of this Indenture; and

 

(d) words and terms denoting inclusiveness (such as “include” or “includes” or “including”), whether or not so stated, are not limited by and do not imply limitation of their context or the words or phrases which precede or succeed them.

 

1.4 Headings Etc.

 

The division of this Indenture into Articles and Sections, the provision of a Table of Contents and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Indenture or of the Debentures.

 

6


1.5 Day not a Business Day

 

In the event that any day on or before which any action required to be taken hereunder is not a Business Day, then such action shall be required to be taken on or before the requisite time on the next succeeding day that is a Business Day.

 

1.6 Applicable Law

 

This Indenture and the Debentures shall be construed in accordance with the laws of the Province of Alberta and the laws of Canada applicable therein and shall be treated in all respects as Alberta contracts.

 

1.7 Monetary References

 

Any reference in this Indenture to “ US dollars ” or the signs “ US$ ” or “ $ ” shall be deemed to be a reference to lawful money of the United States, and any reference to “ Canadian dollars ” or the sign “ C$ ” shall be deemed to be a reference to the lawful money of Canada.

 

1.8 U.S. Currency Equivalents

 

For purposes of applying any provision hereof, the “ U.S. Currency Equivalent ” of any amount which is expressed in a currency other than US dollars shall be deemed as of any date to be equal to the amount in the lawful money of the United States which is required to purchase such amount (i) in Canadian dollars, based on the Official Spot Rate of Exchange quoted by the Bank of Canada at 12:00 noon (New York time) on such date and (ii) otherwise, based upon the Federal Reserve Bank of New York’s 10:00 a.m. fixing of the rate of exchange applicable to the relevant currency, on such date.

 

1.9 Invalidity, Etc.

 

Any provision hereof which is prohibited or unenforceable shall be ineffective only to the extent of such prohibition or unenforceability, without invalidating the remaining provisions hereof.

 

1.10 Language

 

Each of the parties hereto hereby acknowledges that it has consented to and requested that this Indenture and all documents relating thereto, including, without limiting the generality of the foregoing, the form of Debenture attached hereto as Schedule A , be drawn up in the English language only.

 

1.11 Successors and Assigns

 

All covenants and agreements in this Indenture by the Corporation shall bind its successors and assigns, whether expressed or not.

 

1.12 Benefits of Indenture

 

Nothing in this Indenture or in the Debentures, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder, any paying agent, the holders of Debentures, the Debenture Trustee and (except to the extent provided in Sections 14.2 and 8.11) the holders of Common Shares, any benefit or any legal or equitable right, remedy or claim under this Indenture.

 

7


ARTICLE 2

THE DEBENTURES

 

2.1 Limit of Debentures

 

The aggregate principal amount of Debentures authorized to be issued under this Indenture is unlimited, but Debentures may be issued only upon and subject to the conditions and limitations herein set forth.

 

2.2 Terms of Debentures of any Series

 

The Debentures may be issued in one or more series. There shall be established herein or in or pursuant to one or more indentures supplemental hereto, prior to the initial issuance of Debentures of any particular series:

 

(a) the designation of the Debentures of the series (which need not include the term “Debentures”), which shall distinguish the Debentures of the series from the Debentures of all other series;

 

(b) any limit upon the aggregate principal amount of the Debentures of the series that may be certified and delivered under this Indenture (except for Debentures certified and delivered upon registration of, transfer of, amendment of, or in exchange for, or in lieu of, other Debentures of the series pursuant to Sections 2.9, 2.10, 3.2, 3.3 and 3.6);

 

(c) the date or dates on which the principal of the Debentures of the series is payable;

 

(d) the rate or rates at which the Debentures of the series shall bear interest, if any, the date or dates from which such interest shall accrue, on which such interest shall be payable and on which a record, if any, shall be taken for the determination of holders to whom such interest shall be payable and/or the method or methods by which such rate or rates or date or dates shall be determined;

 

(e) the place or places where the principal of and any interest on Debentures of the series shall be payable or where any Debentures of the series may be surrendered for registration of transfer or exchange;

 

(f) the right, if any, of the Corporation to redeem Debentures of the series, in whole or in part, at its option and the period or periods within which, the price or prices at which and any terms and conditions upon which, Debentures of the series may be so redeemed, pursuant to any sinking fund or otherwise;

 

(g) the obligation, if any, of the Corporation to redeem, purchase or repay Debentures of the series pursuant to any mandatory redemption, sinking fund or analogous provisions or at the option of a holder thereof and the price or prices at which, the period or periods within which, the date or dates on which, and any terms and conditions upon which, Debentures of the series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligations;

 

(h) if other than denominations of US$1,000 and any integral multiple thereof, the denominations in which Debentures of the series shall be issuable;

 

(i) subject to the provisions of this Indenture, any trustee, Depositories, authenticating or paying agents, transfer agents or registrars or any other agents with respect to the Debentures of the series;

 

(j) any other events of default or covenants with respect to the Debentures of the series;

 

(k) whether and under what circumstances the Debentures of the series will be convertible into or exchangeable for securities of any Person;

 

(l) the form and terms of the Debentures of the series;

 

8


(m) if applicable, that the Debentures of the series shall be issuable in whole or in part as one or more Global Debentures and, in such case, the Depository or Depositories for such Global Debentures in whose name the Global Debentures will be registered, and any circumstances other than or in addition to those set forth in Section 2.9 or 3.2 or those applicable with respect to any specific series of Debentures, as the case may be, in which any such Global Debenture may be exchanged for Fully Registered Debentures, or transferred to and registered in the name of a person other than the Depository for such Global Debentures or a nominee thereof;

 

(n) if other than United States currency, the currency in which the Debentures of the series are issuable; and

 

(o) any other terms of the Debentures of the series (which terms shall not be inconsistent with the provisions of this Indenture).

 

All Debentures of any one series shall be substantially identical, except as may otherwise be established herein or by or pursuant to a resolution of the directors of the Corporation, Officer’s Certificate or in an indenture supplemental hereto. All Debentures of any one series need not be issued at the same time and may be issued from time to time, including pursuant to a Periodic Offering, consistent with the terms of this Indenture, if so provided herein, by or pursuant to such resolution of the directors of the Corporation, Officer’s Certificate or in an indenture supplemental hereto.

 

2.3 Form of Debentures

 

Except in respect of the Initial Debentures, the form of which is provided for herein, the Debentures of each series shall be substantially in such form or forms (not inconsistent with this Indenture) as shall be established herein or by or pursuant to one or more resolutions of the directors of the Corporation (as set forth in a resolution of the directors of the Corporation or to the extent established pursuant to, rather than set forth in, a resolution of the directors of the Corporation, in an Officer’s Certificate detailing such establishment) or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture and may have imprinted or otherwise reproduced thereon such legend or legends or endorsements, not inconsistent with the provisions of this Indenture, as may be required to comply with any law or with any rules or regulations pursuant thereto or with any rules or regulations of any securities exchange or securities regulatory authority or to conform to general usage, all as may be determined by the director or officer of the Corporation executing such Debentures, as conclusively evidenced by his/her execution of such Debentures. The Debenture Trustee shall not be required to ensure compliance with any law or with any rules or regulations pursuant thereto or with any rules or regulations of any securities exchange or securities regulatory authority or to conform to general usage in connection with the issue, transfer or exchange of the Debentures. The responsibility for compliance with the foregoing shall be that of the Corporation or the holder, as applicable.

 

2.4 Form and Terms of Initial Debentures

 

(a) The first series of Debentures (the “ Initial Debentures ”) authorized for issue immediately is limited to an aggregate principal amount of US$30,000,000, and shall be designated as “9.75% Convertible Senior Unsecured Subordinated Debentures”.

 

(b) The Initial Debentures shall be dated as of November 12, 2004 and shall bear interest from and including such date of issue at the rate of 9.75% per annum, payable quarterly on February 12, May 12, August 12 and November 12 in each year, the first such payment to fall due on February 12 , 2005, and provided that the last such payment (representing interest payable from the last Interest Payment Date to, but excluding, the Maturity Date of the Initial Debentures) shall fall due on the Maturity Date of the Initial Debentures, payable after as well as before maturity and after as well as before default, with interest on amounts in default at the same rate, compounded quarterly. For certainty, the first interest payment will include interest accrued from November 12, 2004 to, but excluding February 12, 2005, which will be equal to US$24.58 for each US$1,000 principal amount of the Initial Debentures. The Initial Debentures will mature on November 20, 2009.

 

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(c) The Initial Debentures will be redeemable in accordance with the terms of Article 4, provided that the Initial Debentures will not be redeemable on or before November 12 , 2006, except in the event of the satisfaction of certain conditions after a Change of Control has occurred as outlined herein. Subsequent to November 12, 2006 and on or prior to maturity, the Initial Debentures may be redeemed at the option of the Corporation in whole or in part from time to time on notice as provided for in Section 4.3 provided that the U.S. Currency Equivalent Current Market Price on the date on which such notice of redemption is given is at least 130% of the Conversion Price then in effect and the Corporation shall have provided to the Debenture Trustee an Officer’s Certificate confirming such U.S. Currency Equivalent Current Market Price. The redemption price for the Initial Debentures will be a price equal to their principal amount plus accrued and unpaid interest. The Redemption Notice for the Initial Debentures shall be substantially in the form of Schedule B.

 

(d) The Initial Debentures will be subordinated to the Senior Indebtedness of the Corporation in accordance with the provisions of Article 5.

 

(e) Upon and subject to the provisions and conditions of Article 6, the holder of each Initial Debenture shall have the right at such holder’s option, at any time prior to the close of business on the earlier of:

 

  (i) the last Business Day immediately preceding the Maturity Date of the Initial Debentures; and

 

  (ii) the last Business Day immediately preceding the date specified by the Corporation for redemption of the Initial Debentures by notice to the holders of Initial Debentures in accordance with Sections 2.4(c) and 4.3;

 

(the earlier of which will be the “ Time of Expiry ” for the purposes of Article 6 in respect of the Initial Debentures), to convert the whole or, in the case of an Initial Debenture of a denomination in excess of US$1,000, any part which is US$1,000 or an integral multiple thereof, of the principal amount of a Debenture into the nearest whole number of Common Shares calculated by dividing the principal amount of the Initial Debenture presented for conversion by the Conversion Price in effect on the Date of Conversion (as defined in Section 6.4(b)).

 

The Conversion Price in effect on the date hereof for each Common Share to be issued upon the conversion of Initial Debentures shall initially be equal to US$4.62. In the event the Liquidity Event has not occurred on or prior to:

 

  (i) March 12, 2005, the Conversion Price shall be automatically adjusted to equal US$4.54,

 

  (ii) May 12, 2005, the Conversion Price shall be automatically adjusted to equal US$4.46, and

 

  (iii) July 12, 2005, the Conversion Price shall be automatically adjusted to equal US$4.38;

 

provided that the foregoing automatic adjustments shall be immediately further adjusted to reflect any Conversion Price adjustments required by Section 6.5 hereof made prior to such automatic adjustment. Subject to the provisions of Article 5, no adjustment in the number of Common Shares to be issued upon conversion (but as yet unissued) will be made for distributions or dividends on Common Shares issuable upon conversion or for interest accrued on Initial Debentures surrendered for conversion; however, holders converting their Debentures will be entitled to receive accrued and unpaid interest thereon from the date hereof or from the last Interest Payment Date to which interest shall have been paid, which ever is later, up to but not including the date such conversion is effectuated (the “ Conversion Date ”). The Conversion Price applicable to and the Common Shares, securities or other property receivable on the conversion of the Initial Debentures are subject to adjustment pursuant to the provisions of Section 6.5.

 

(f)

The Initial Debentures shall be issued only as Fully Registered Debentures in denominations of US$1,000 and integral multiples of US$1,000. Each Initial Debenture and the certificate of the Debenture Trustee endorsed thereon shall be issued in substantially the form set out in Schedule A , with such insertions,

 

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omissions, substitutions or other variations as shall be required or permitted by this Indenture, and may have imprinted or otherwise reproduced thereon such legend or legends or endorsements, not inconsistent with the provisions of this Indenture, as may be required to comply with any law or with any rules or regulations pursuant thereto or with any rules or regulations of any securities exchange or securities regulatory authority or to conform with general usage, all as may be determined by the directors or officers of the Corporation executing such Initial Debenture in accordance with Section 2.7 hereof, as conclusively evidenced by their execution of an Initial Debenture. Each Initial Debenture shall additionally bear such distinguishing letters and numbers as the Debenture Trustee shall approve. Notwithstanding the foregoing, an Initial Debenture may be in such other form or forms as may, from time to time, be, approved by a resolution of the directors of the Corporation or as specified in an Officer’s Certificate and approved by the Debenture Trustee. The Initial Debentures may be engraved, lithographed, printed, mimeographed or typewritten or partly in one form and partly in another.

 

(g) Within 30 days following the occurrence of a Change of Control, and subject to the provisions and conditions of this Section 2.4(g), the Corporation shall be obligated to offer to purchase the Initial Debentures and to purchase any Initial Debentures tendered in respect of such offer. The terms and conditions of such obligation are set forth below:

 

  (i) Within 30 days following the occurrence of a Change of Control, the Corporation shall deliver to the Debenture Trustee, and the Debenture Trustee shall promptly deliver to the holders of the Initial Debentures a written notice stating that there has been a Change of Control and specifying the circumstances surrounding such event (a “ Change of Control Notice ”) together with an offer in writing (the “ Change of Control Offer ”) to purchase all then outstanding Initial Debentures made in accordance with the requirements of Applicable Securities Legislation (provided that, for greater certainty, the Corporation shall use its commercial reasonable efforts to obtain all requisite regulatory consents and to comply with Applicable Securities Legislation in connection with the receiving and completion of such Change of Control Offer) at a price (the “ Offer Price ”) equal to 101% of the principal amount thereof, provided, however, that if the Change of Control occurs prior to November 12, 2006 and the U.S. Currency Equivalent of the Current Market Price on the date on which such Change of Control Notice is given is less than the Conversion Price then in effect, then the Offer Price for such Change of Control Offer shall be (A) if the Change of Control Offer relates to a Change of Control that occurred on or prior to November 12, 2005, 119.5% of the principal amount thereof, or (B) if the Change of Control Offer relates to a Change of Control that occurred after November 12, 2005 and on or prior to November 12, 2006, 109.75% of the principal amount thereof, in each case, plus accrued and unpaid interest on such Initial Debentures up to, but excluding, the date of acquisition by the Corporation or a related party of such Debentures (collectively, the “ Total Offer Price ”).

 

  (ii) If 90% or more in aggregate principal amount of Initial Debentures outstanding on the date the Corporation provides the Change of Control Notice and the Change of Control Offer to holders of the Initial Debentures have been tendered for purchase pursuant to the Offer on the expiration thereof, the Corporation has the right and shall upon written notice provided to the Debenture Trustee within 10 days following the expiration of the Change of Control Offer, to redeem all the Initial Debentures remaining outstanding on the expiration of the Change of Control Offer at the Total Offer Price (the “ 90% Redemption Right ”).

 

  (iii) Upon receipt of notice that the Corporation has exercised or is exercising the 90% Redemption Right and is acquiring the remaining Initial Debentures, the Debenture Trustee shall promptly provide written notice to each Debentureholder that did not previously accept the Change of Control Offer that:

 

  (A) the Corporation has exercised the 90% Redemption Right and is purchasing all outstanding Initial Debentures effective on the expiry of the Change of Control Offer at the Total Offer Price, and shall include a calculation of the amount payable to such holder as payment of the Total Offer Price;

 

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  (B) each such holder must transfer their Initial Debentures to the Debenture Trustee on the same terms as those holders that accepted the Change of Control Offer and must send their respective Initial Debentures, duly endorsed for transfer, to the Debenture Trustee within 10 days after the sending of such notice; and

 

  (C) the rights of such holder under the terms of the Initial Debentures and this Indenture cease effective as of the date of expiry of the Change of Control Offer provided the Corporation has, on or before the time of notifying the Debenture Trustee of the exercise of the 90% Redemption Right, paid the Total Offer Price to, or to the order of, the Debenture Trustee and thereafter the Initial Debentures shall not be considered to be outstanding and the holder shall not have any right except to receive such holder’s Total Offer Price upon surrender and delivery of such holder’s Initial Debentures in accordance with the Indenture.

 

  (iv) The Corporation shall, on or before 11:00 a.m., Calgary time, on the Business Day immediately prior to the expiry of the Change of Control Offer, deposit with the Debenture Trustee or any paying agent to the order of the Debenture Trustee, such sums of money as may be sufficient to pay the Total Offer Price for each of the Initial Debentures to be purchased or redeemed by the Corporation on the expiry of the Change of Control Offer, provided the Corporation may elect to satisfy this requirement by providing the Debenture Trustee or any paying agent with a certified cheque for such amounts required under this Section 2.4(g)(iv) post-dated to the date of expiry of the Change of Control Offer. The Corporation shall also deposit with the Debenture Trustee a sum of money sufficient to pay any charges or expenses that may be incurred by the Debenture Trustee or any paying agent in connection with such purchase and/or redemption, as the case may be. Every such deposit shall be irrevocable. From the sums so deposited, the Debenture Trustee or any paying agent shall pay or cause to be paid to the holders of such Initial Debentures, the Offer Price, and all accrued and unpaid interest, if any, to which they are entitled on the Corporation’s purchase or redemption.

 

  (v) Initial Debentures for which holders have accepted the Change of Control Offer and Initial Debentures which the Corporation has elected to redeem in accordance with this Section 2.4(g) shall become due and payable at the Total Offer Price on the date of expiry of the Change of Control Offer, in the same manner and with the same effect as if it were the date of maturity specified in such Initial Debentures, anything therein or herein to the contrary notwithstanding, and from and after such date of expiry of the Change of Control Offer, if the money necessary to purchase or redeem the Initial Debentures shall have been deposited as provided in this Section 2.4(g) and affidavits or other proofs satisfactory to the Debenture Trustee as to the publication and/or mailing of such notices shall have been lodged with it, interest on the Initial Debentures shall cease. If any question shall arise as to whether any notice has been given as above provided and such deposit made, such question shall be decided by the Debenture Trustee whose decision shall be final and binding upon all parties in interest.

 

  (vi)

In case the holder of any Initial Debenture to be purchased or redeemed in accordance with this Section 2.4(g) shall fail on or before the date of expiry of the Change of Control Offer so to surrender such holder’s Initial Debenture or shall not within such time accept payment of the monies payable, or give such receipt therefor, if any, as the Debenture Trustee may require, such monies may be set aside in trust, either in the deposit department of the Debenture Trustee or in a chartered bank, and such setting aside shall for all purposes be deemed a payment to the Debentureholder of the sum so set aside and the Debentureholder shall have no other right except to receive payment of the monies so paid and deposited, upon surrender and delivery up of such holder’s Initial Debenture. In the event that any money required to be deposited hereunder with the Debenture Trustee or any depository or paying agent on account of principal, premium, if any, or interest, if any, on Initial Debentures issued hereunder shall remain so deposited for a period of six years from the date of expiry of the Change of Control Offer, then such monies, together with any accumulated interest thereon, shall at the end of such period be paid over or delivered over by the Debenture Trustee or such depository or paying agent to the Corporation and the Debenture

 

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Trustee shall not be responsible to Debentureholders for any amounts owing to them. Notwithstanding the foregoing, the Debenture Trustee will pay any remaining funds deposited hereunder prior to the expiry of six years after the date of expiry of the Change of Control Offer to the Corporation upon receipt from the Corporation, or one of its Subsidiaries, of an unconditional letter of credit from a Schedule A Canadian chartered bank in an amount equal to or in excess of the amount of the remaining funds. If the remaining funds are paid to the Corporation prior to the expiry of six years after the date of expiry of the Change of Control Offer, the Corporation shall reimburse the Debenture Trustee for any amounts required to be paid by the Debenture Trustee to a holder of a Debenture pursuant to the Change of Control Offer after the date of such payment of the remaining funds to the Corporation but prior to six years after the date of expiry of the Change of Control Offer.

 

  (vii) Subject to the provisions above related to Initial Debentures purchased in part, all Initial Debentures redeemed and paid under this Section 2.4(g) shall forthwith be delivered to the Debenture Trustee and cancelled and no Initial Debentures shall be issued in substitution therefor.

 

(h) The Debenture Trustee shall be provided with the documents and instruments referred to in Sections 2.5(b), (c) and (d) with respect to the Initial Debentures prior to the issuance of the Initial Debentures.

 

(i) Notwithstanding any other provision of this Indenture, other than as a result of an Event of Default, the conversion of a Debenture into a Prescribed Security, or the acceptance of the Change of Control Offer accompanying a Change of Control Notice, the Corporation shall not under any circumstances be obligated to repay more than 25% of the principal amount of the Debentures within five years from the date of issue thereof.

 

(j) The Corporation will use commercially reasonable efforts to cause a Liquidity Event to occur as soon as practicable following the date hereof.

 

(k) The Corporation will, from the date hereof up to and including the Maturity Date, keep in reserve for issuance, a sufficient number of its Common Shares as are necessary to cover the conversion rights granted to Debentureholders hereunder.

 

2.5 Certification and Delivery of Additional Debentures

 

The Corporation may from time to time request the Debenture Trustee to certify and deliver Additional Debentures of any series by delivering to the Debenture Trustee the documents referred to below in this Section 2.5 whereupon the Debenture Trustee shall certify such Debentures and cause the same to be delivered in accordance with the Written Direction of the Corporation referred to below or pursuant to such procedures acceptable to the Debenture Trustee as may be specified from time to time by a Written Direction of the Corporation. The Maturity Date, issue date, interest rate (if any) and any other terms of the Debentures of such series shall be set forth in or determined by or pursuant to such Written Direction of the Corporation and procedures. In certifying such Debentures, the Debenture Trustee shall be entitled to receive and shall be fully protected in relying upon, unless and until such documents have been superseded or revoked:

 

(a) an Officer’s Certificate and/or executed supplemental indenture by or pursuant to which the form and terms of such Additional Debentures were established;

 

(b) a Written Direction of the Corporation requesting certification and delivery of such Initial Debentures or Additional Debentures, as the case may be, and setting forth delivery instructions, provided that, with respect to Debentures of a series subject to a Periodic Offering :

 

  (i) such Written Direction of the Corporation may be delivered by the Corporation to the Debenture Trustee prior to the delivery to the Debenture Trustee of such Debentures of such series for certification and delivery;

 

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  (ii) the Debenture Trustee shall certify and deliver such Debentures of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount, if any, established for such series, pursuant to a Written Direction of the Corporation or pursuant to procedures acceptable to the Debenture Trustee as may be specified from time to time by a Written Direction of the Corporation;

 

  (iii) the maturity date or dates, issue date or dates, interest rate or rates (if any) and any other terms of such Debentures of such series shall be determined by an executed supplemental indenture or by Written Direction of the Corporation or pursuant to such procedures; and

 

  (iv) if provided for in such procedures, such Written Direction of the Corporation may authorize certification and delivery pursuant to oral or electronic instructions from the Corporation which oral or electronic instructions shall be promptly confirmed in writing;

 

(c) an opinion of Counsel, in form and substance satisfactory to the Debenture Trustee, acting reasonably, to the effect that all requirements imposed by this Indenture or by law in connection with the proposed issue of the Initial Debentures or Additional Debentures, as the case may be, have been complied with, subject to the delivery of certain documents or instruments specified in such opinion; and

 

(d) an Officer’s Certificate certifying that the Corporation is not in default under this Indenture, that the terms and conditions for the certification and delivery of the Initial Debentures or Additional Debentures (including those set forth in Section 14.5), as the case may be, have been complied with subject to the delivery of any documents or instruments specified in such Officer’s Certificate and that no Event of Default exists or will exist upon such certification and delivery.

 

2.6 Issue of Global Debentures

 

(a) The Corporation may specify that the Debentures of a series are to be issued in whole or in part as one or more Global Debentures registered in the name of a Depository, or its nominee, designated by the Corporation in the Written Direction of the Corporation delivered to the Debenture Trustee at the time of issue of such Debentures, and in such event the Corporation shall execute and the Debenture Trustee shall certify and deliver one or more Global Debentures that shall:

 

  (i) represent an aggregate amount equal to the principal amount of the outstanding Debentures of such series to be represented by one or more Global Debentures;

 

  (ii) be delivered by the Debenture Trustee to such Depository or pursuant to such Depository’s instructions; and

 

  (iii) bear a legend substantially to the following effect:

 

“This Debenture is a Global Debenture within the meaning of the Indenture herein referred to and is registered in the name of a Depository or a nominee thereof. This Debenture may not be transferred to or exchanged for Debentures registered in the name of any person other than the Depository or a nominee thereof and no such transfer may be registered except in the limited circumstances described in the Indenture. Every Debenture authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu of, this Debenture shall be a Global Debenture subject to the foregoing, except in such limited circumstances described in the Indenture.

 

Unless this Debenture is presented by an authorized representative of The Canadian Depository for Securities Limited (“CDS”) to Gastar Exploration Ltd. or its agent for registration of transfer, exchange or payment, and any Debenture issued in respect thereof is registered in the name of CDS & Co., or in such other name as is requested

 

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by an authorized representative of CDS, (and any payment is made to CDS & Co. or to such entity as is requested by an authorized representative of CDS) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE OR TO ANY PERSON IS WRONGFUL since as the registered holder hereof, CDS & Co. has an interest herein.”

 

(b) Each Depository designated for a Global Debenture must, at the time of its designation and at all times while it serves as such Depository, be a clearing agency registered or designated under the securities legislation of the jurisdiction where the Depository has its principal offices.

 

2.7 Execution of Debentures

 

All Debentures shall be signed (either manually or by facsimile signature) by any one authorized director or officer of the Corporation, on behalf of the Corporation, holding office at the time of signing. A facsimile signature upon a Debenture shall for all purposes of this Indenture be deemed to be the signature of the person whose signature it purports to be. Notwithstanding that any person whose signature, either manual or in facsimile, appears on a Debenture as a director or officer may no longer hold such office at the date of the Debenture or at the date of the certification and delivery thereof, such Debenture shall be valid and binding upon the Corporation and entitled to the benefits of this Indenture.

 

2.8 Certification

 

(a) No Debenture shall be issued or, if issued, shall be obligatory or shall entitle the holder to the benefits of this Indenture, until it has been manually certified by or on behalf of the Debenture Trustee substantially in the form set out in this Indenture, in the relevant supplemental indenture, or in some other form approved by the Debenture Trustee. Such certification on any Debenture shall be conclusive evidence that such Debenture is duly issued, is a valid obligation of the Corporation and the holder is entitled to the benefits hereof.

 

(b) The certificate of the Debenture Trustee signed on the Debentures, or interim Debentures hereinafter mentioned, shall not be construed as a representation or warranty by the Debenture Trustee as to the validity of this Indenture or of the Debentures or interim Debentures or as to the issuance of the Debentures or interim Debentures and the Debenture Trustee shall in no respect be liable or answerable for the use made of the Debentures or interim Debentures or any of them or the proceeds thereof. The certificate of the Debenture Trustee signed on the Debentures or interim Debentures shall, however, be a representation and warranty by the Debenture Trustee that the Debentures or interim Debentures have been duly certified by or on behalf of the Debenture Trustee pursuant to the provisions of this Indenture.

 

2.9 Interim Debentures or Certificates

 

Pending the delivery of definitive Debentures of any series to the Debenture Trustee, the Corporation may issue and the Debenture Trustee certify in lieu thereof interim Debentures in such forms and in such denominations and signed in such manner as provided herein, entitling the holders thereof to definitive Debentures of the series when the same are ready for delivery; or the Corporation may execute and the Debenture Trustee certify a temporary Debenture for the whole principal amount of Debentures of the series then authorized to be issued hereunder and deliver the same to the Debenture Trustee and thereupon the Debenture Trustee may issue its own interim certificates in such form and in such amounts, not exceeding in the aggregate the principal amount of the temporary Debenture so delivered to it, as the Corporation, and the Debenture Trustee may approve entitling the holders thereof to definitive Debentures of the series when the same are ready for delivery; and, when so issued and certified, such interim or temporary Debentures or interim certificates shall, for all purposes but without duplication, rank in respect of this Indenture equally with Debentures duly issued hereunder and, pending the exchange thereof for definitive Debentures, the holders of the interim or temporary Debentures or interim certificates shall be deemed without duplication to be Debentureholders and entitled to the benefit of this Indenture to the same extent and in the same manner as though the said exchange had actually been made. Forthwith after the Corporation shall have delivered the definitive Debentures to the Debenture Trustee, the Debenture Trustee shall cancel such temporary Debentures, if any, and shall call in for exchange all interim Debentures or certificates that shall have been issued

 

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and forthwith after such exchange shall cancel the same. No charge shall be made by the Corporation or the Debenture Trustee to the holders of such interim or temporary Debentures or interim certificates for the exchange thereof. All interest paid upon interim or temporary Debentures or interim certificates shall be noted thereon as a condition precedent to such payment unless paid by cheque to the registered holders thereof.

 

2.10 Mutilation, Loss, Theft or Destruction

 

In case any of the Debentures issued hereunder shall become mutilated or be lost, stolen or destroyed, the Corporation, in its discretion, may issue, and thereupon the Debenture Trustee shall certify and deliver, a new Debenture upon surrender and cancellation of the mutilated Debenture, or in the case of a lost, stolen or destroyed Debenture, in lieu of and in substitution for the same, and the substituted Debenture shall be in a form approved by the Debenture Trustee and shall be entitled to the benefits of this Indenture and rank equally in accordance with its terms with all other Debentures issued or to be issued hereunder. In case of loss, theft or destruction the applicant for a substituted Debenture shall furnish to the Corporation and to the Debenture Trustee such evidence of the loss, theft or destruction of the Debenture as shall be satisfactory to each of them in their discretion and shall also furnish an indemnity satisfactory to each of them in their discretion. The applicant shall pay all reasonable expenses incidental to the issuance of any substituted Debenture.

 

2.11 Concerning Interest

 

(a) All Debentures issued hereunder, whether originally or upon exchange or in substitution for previously issued Debentures which are interest bearing, shall bear interest (i) from and including their issue date, or with respect to the Initial Debentures, as provided in Section 2.4(b) or (ii) from and including the last Interest Payment Date to which interest shall have been paid or made available for payment on the outstanding Debentures of that series, whichever shall be the later, or, in respect of Debentures subject to a Periodic Offering, from and including their issue date or from and including the last Interest Payment Date to which interest shall have been paid or made available for payment on such Debentures, in all cases, to but excluding the next Interest Payment Date;

 

(b) Unless otherwise specifically provided in the terms of the Debentures of any series, interest for any period of less than six months shall be computed on the basis of a year of 365 days. Subject to Section 2.4(b) in respect of the method for calculating the amount of interest to be paid on the Initial Debentures on the first Interest Payment Date in respect thereof, with respect to any series of Debentures, whenever interest is computed on a basis of a year (the “ deemed year ”) which contains fewer days than the actual number of days in the calendar year of calculation, such rate of interest shall be expressed as a yearly rate for purposes of the Interest Act (Canada) by multiplying such rate of interest by the actual number of days in the calendar year of calculation and dividing it by the number of days in the deemed year.

 

2.12 Debentures to Rank Pari Passu

 

The Debentures will be direct unsecured obligations of the Corporation. Each Debenture of the same series of Debentures will rank pari passu with each other Debenture of the same series (regardless of their actual date or terms of issue) and, subject to statutory preferred exceptions, with all other present and future subordinated and unsecured indebtedness of the Corporation except for sinking fund provisions (if any) applicable to different series of Debentures or other similar types of obligations of the Corporation.

 

2.13 Payments of Amounts Due on Maturity

 

(a)

Except as may otherwise be provided in any supplemental indenture in respect of any series of Debentures, payments of amounts due upon maturity of the Debentures will be made in the following manner. The Corporation will establish and maintain with the Debenture Trustee a Maturity Account for each series of Debentures. Each such Maturity Account shall be maintained by and be subject to the control of the Debenture Trustee for the purposes of this Indenture. On or before 11:00 a.m., Calgary time on the Business Day immediately prior to each Maturity Date for Debentures outstanding from time to time under this Indenture, the Corporation will deliver to the Debenture Trustee a certified cheque for deposit in the

 

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applicable Maturity Account in an amount sufficient to pay the cash amount payable in respect of such Debentures (including the principal amount together with any accrued and unpaid interest thereon, less any tax required by law to be deducted). The Debenture Trustee, on behalf of the Corporation, will pay to each holder entitled to receive payment the principal amount of and premium (if any) and accrued and unpaid interest on the Debenture, upon surrender of the Debenture at any branch of the Debenture Trustee designated for such purpose from time to time by the Corporation and the Debenture Trustee. The delivery of such funds to the Debenture Trustee for deposit to the applicable Maturity Account will satisfy and discharge the liability of the Corporation for the Debentures to which the delivery of funds relates to the extent of the amount delivered (plus the amount of any tax deducted as aforesaid) and such Debentures will thereafter to that extent not be considered as outstanding under this Indenture and such holder will have no other right in regard thereto other than to receive out of the money so delivered or made available the amount to which it is entitled.

 

(b) Notwithstanding Section 2.13(a), if a series of Debentures is represented by a Global Debenture, then all payments of amounts due on maturity (including the principal amount together with any accrued and unpaid interest thereon) on the Global Debentures representing such Debentures shall be made by certified cheque, bank draft or electronic transfer of funds made payable to the Depository or its nominee for subsequent payment by the Depository to Beneficial Holders of interests in that Global Debenture, unless the Corporation and the Depository otherwise agree. Provided the Corporation has made the payment of amounts due on maturity of the Global Debentures to the Depository as contemplated herein, none of the Corporation, the Debenture Trustee or any agent of the Debenture Trustee for any Debenture will be liable or responsible to any person for any aspect of the records related to or payments made on account of beneficial interests in any Global Debenture or for maintaining, reviewing, or supervising any records relating to such beneficial interests.

 

2.14 Resale Restrictions and Legends

 

The Initial Debentures will be distributed pursuant to exemptions from the prospectus and/or registration requirements of Applicable Securities Legislation and accordingly there will be restrictions imposed by Applicable Securities Legislation on the resale of the Initial Debentures and the Common Shares issuable upon conversion thereof. All resales of Initial Debentures and the Common Shares issuable upon conversion thereof are subject to restrictions in the United States and Canada as a result of application of the 1933 Act and rules promulgated thereunder. A description of restrictions on resales of the Initial Debentures and Common Shares issuable upon conversion thereof in the United States and Canada is set forth below in Section 2.14(a). In Canada, in addition to the restrictions set forth below in Section 2.14(a), resales of Initial Debentures and Common Shares issuable upon conversion thereof may only be made under a further exemption and all Initial Debentures shall bear the legend set forth below in Section 2.14(b).

 

(a) The Initial Debentures and the Common Shares issuable upon conversion thereof have not been initially registered under the 1933 Act. Accordingly, all Initial Debentures and the Common Shares issuable upon conversion thereof, as, shall bear the following legend (the “ US Legend ”):

 

“THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”) OR STATE SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF GASTAR EXPLORATION LTD. THAT SUCH SECURITIES MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO GASTAR EXPLORATION LTD., (B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH REGULATION S UNDER THE U.S. SECURITIES ACT, (C) INSIDE OR OUTSIDE THE UNITED STATES, PURSUANT TO THE EXEMPTION FROM REGISTRATION UNDER THE U.S. SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER, (D) TO A PERSON THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE U.S. SECURITIES ACT) PURCHASING FOR ITS OWN ACCOUNT OR FOR THE

 

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ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, OR (E) PURSUANT TO A REGISTRATION STATEMENT EFFECTIVE UNDER THE U.S. SECURITIES ACT AND COVERING SUCH OFFER, SALE OR TRANSFER (IT BEING UNDERSTOOD THAT THE ISSUER SHALL BE UNDER NO OBLIGATION TO FILE SUCH REGISTRATION STATEMENT). HEDGING TRANSACTIONS INVOLVING THE SECURITIES REPRESENTED HEREBY MAY NOT BE CONDUCTED EXCEPT IN COMPLIANCE WITH THE U.S. SECURITIES ACT.

 

A NEW CERTIFICATE BEARING NO LEGEND MAY BE OBTAINED FROM CIBC MELLON TRUST COMPANY UPON DELIVERY OF AN OPINION OF COUNSEL, IN A FORM SATISFACTORY TO CIBC MELLON TRUST COMPANY AND GASTAR EXPLORATION LTD., TO THE EFFECT THAT THE SALE OF THE SECURITIES REPRESENTED HEREBY IS BEING MADE IN COMPLIANCE WITH RULE 144 UNDER THE SECURITIES ACT TOGETHER WITH OTHER DOCUMENTATION REASONABLY REQUESTED BY CIBC MELLON TRUST COMPANY OR GASTAR EXPLORATION LTD.”

 

provided, that if the Initial Debentures or the Common Shares issuable upon conversion thereof are being sold in compliance with the requirements of Rule 144 under the 1933 Act or pursuant to an effective registration statement under the 1933 Act, the above legend may be removed by delivery to the Debenture Trustee of (i) an opinion of Counsel of recognized standing reasonably satisfactory to the Corporation to the effect that the Initial Debentures or Common Shares issuable upon conversion thereof, held by it are being sold pursuant to Rule 144 of the 1933 Act or pursuant to an effective Registration Statement under the 1933 Act, as the case may be, and (ii) such other documentation reasonably requested by the Debenture Trustee or the Corporation; and

 

provided, further, that if (i) a holder of Initial Debentures is not an “affiliate” (as defined in Rule 405 under the 1933 Act) of the Corporation, (ii) the holder has not been such an affiliate in the preceding three months, and (iii) at least two years (or such shorter period as may be permitted under Rule 144(k) or any successor rule promulgated under the 1933 Act) have elapsed since the later of the date the Initial Debentures were acquired from the Corporation or from an affiliate of the Corporation, then the US Legend may be removed from any certificates representing the Initial Debentures or Common Shares issuable upon conversion thereof, held by it by delivery to the Debenture Trustee of an opinion of counsel of recognized standing reasonably satisfactory to the Corporation, to the effect that any such Initial Debentures or Common Shares issuable upon conversion thereof, held by it may be sold pursuant to Rule 144(k) (or any successor rule) promulgated under the 1933 Act and such legend is no longer required under applicable requirements of the 1933 Act or state securities laws; and the Corporation shall use its reasonable best efforts to cause the registrar and transfer agent of the Corporation to remove the foregoing U.S. Legend within three business days (excluding weekends and holidays) of receipt of the foregoing, as applicable.

 

(b) The Initial Debentures have been issued in Canada pursuant to exemptions from prospectus requirements of Applicable Securities Legislation and each Initial Debenture and, until March 13, 2005, the Common Shares issuable upon conversion thereof, shall bear a legend to the following effect (the “ Canadian Legend ”):

 

“UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE MARCH 13, 2005.”

 

(c)

If Initial Debentures or certificates for Common Shares bearing a US Legend and/or Canadian Legend are presented to the Debenture Trustee for exchange, the Debenture Trustee shall deliver to the holder thereof new certificates bearing the US Legend and/or Canadian Legend, as applicable, in the name requested, representing the appropriate aggregate number of securities; provided, that the legends may be removed in accordance with Section 2.14(a) and 2.14(b). Unless and until the US Legend is removed pursuant to

 

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Section 2.14(a), no transfer of an Initial Debenture or Underlying Shares shall be made without an opinion of Counsel of recognized standing reasonably satisfactory to the Corporation to the effect that such transfer is being made in compliance with Regulation S promulgated under the 1933 Act or another exemption from the registration provisions of the 1933 Act.

 

(d) Prior to the issuance of the Initial Debentures, the Corporation shall notify the Debenture Trustee, in writing, concerning the aggregate amount of Initial Debentures in respect of which the Global Certificates are to bear the US Legend. The Debenture Trustee will thereafter maintain a list of all registered holders from time to time of Legended Debentures.

 

2.15 Payment of Interest

 

The following provisions shall apply to Debentures, except as otherwise provided in Section 2.4(b) or specified in a resolution of the directors of the Corporation, an Officer’s Certificate or a supplemental indenture relating to a particular series of Additional Debentures:

 

(a) As interest becomes due on each Debenture (except on conversion or on redemption, when interest may at the option of the Corporation be paid upon surrender of such Debenture) the Corporation, either directly or through the Debenture Trustee or any agent of the Debenture Trustee, shall send or forward by prepaid ordinary mail, electronic transfer of funds or such other means as may be agreed to by the Debenture Trustee, payment of such interest (less any tax required to be withheld therefrom) to the order of the registered holder of such Debenture appearing on the registers maintained by the Debenture Trustee at the close of business on the seventh Business Day prior to the applicable Interest Payment Date and addressed to the holder at the holder’s last address appearing on the register, unless such holder otherwise directs. If payment is made by cheque, such cheque shall be forwarded at least three days prior to each date on which interest becomes due and if payment is made by other means (such as electronic transfer of funds, provided the Debenture Trustee must receive confirmation of receipt of funds prior to being required to wire funds to holders), such payment shall be made in a manner whereby the holder receives credit for such payment on the date such interest on such Debenture becomes due. The mailing of such cheque or the making of such payment by other means shall, to the extent of the sum represented thereby, plus the amount of any tax withheld as aforesaid, satisfy and discharge all liability for interest on such Debenture, unless in the case of payment by cheque, such cheque is not paid at par on presentation. In the event of non-receipt of any cheque for or other payment of interest by the person to whom it is so sent as aforesaid, the Corporation will issue to such person a replacement cheque or other payment for a like amount upon being furnished with such evidence of non-receipt as it shall reasonably require and upon being indemnified to its satisfaction. Notwithstanding the foregoing, if the Corporation is prevented by circumstances beyond its control (including, without limitation, any interruption in mail service) from making payment of any interest due on each Debenture in the manner provided above, the Corporation may make payment of such interest or make such interest available for payment in any other manner acceptable to the Debenture Trustee with the same effect as though payment had been made in the manner provided above.

 

(b) Notwithstanding Section 2.15,(a) if a series of Debentures is represented by a Global Debenture, then all payments of interest on the Global Debenture representing such Debentures shall be made by certified cheque, bank draft or electronic transfer of funds made payable to the Depository or its nominee for subsequent payment by the Depository to Beneficial Holders of interests in that Global Debenture, unless the Corporation and the Depository otherwise agree. Provided the Corporation has made the payment of amounts due on maturity of the Global Debentures to the Depository as contemplated herein, none of the Corporation, the Debenture Trustee or any agent of the Debenture Trustee for any Debenture will be liable or responsible to any person for any aspect of the records related to or payments made on account of beneficial interests in any Global Debenture or for maintaining, reviewing, or supervising any records relating to such beneficial interests.

 

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ARTICLE 3

REGISTRATION, TRANSFER, EXCHANGE AND OWNERSHIP

 

3.1 Global Debentures

 

(a) With respect to each series of Debentures issuable in whole or in part as one or more Global Debentures, the Corporation shall cause to be kept by and at the principal office of the Debenture Trustee and by the Debenture Trustee or such other registrar as the Corporation, with the approval of the Debenture Trustee, may appoint at such other place or places, if any, as the Corporation may designate with the approval of the Debenture Trustee, a register in which shall be entered the name and address of the holder of each such Global Debenture (being the Depository, or its nominee, for such Global Debenture) as holder thereof and particulars of the Global Debenture held by it, and of all transfers thereof. If any Debentures of such series are at any time not Global Debentures, the provisions of Section 3.2 shall govern with respect to registrations and transfers of such Debentures.

 

(b) Notwithstanding any other provision of this Indenture, a Global Debenture may not be transferred by the registered holder thereof and accordingly, no definitive certificates shall be issued to Beneficial Holders of Debentures except in the following circumstances or as otherwise specified in a resolution of the directors of the Corporation, Officer’s Certificate or supplemental indenture relating to a particular series of Additional Debentures:

 

  (i) Global Debentures may be transferred by a Depository to a nominee of such Depository or by a nominee of a Depository to such Depository or to another nominee of such Depository or by a Depository or its nominee to a successor Depository or its nominee;

 

  (ii) Global Debentures may be transferred at any time after the Depository for such Global Debentures (i) has notified the Debenture Trustee in writing, or the Corporation has notified the Debenture Trustee in writing, that it is unwilling or unable to continue as Depository for such Global Debentures, or (ii) ceases to be eligible to be a Depository under Section 2.6(b), provided that at the time of such transfer the Corporation has not appointed a successor Depository for such Global Debentures;

 

  (iii) Global Debentures may be transferred at any time after the Corporation has determined, in its sole discretion, to terminate the book-entry only registration system in respect of such Global Debentures and has communicated such determination to the Debenture Trustee in writing;

 

  (iv) Global Debentures may be transferred at any time after the Debenture Trustee has determined that an Event of Default has occurred and is continuing with respect to the Debentures of the series issued as a Global Debenture, provided that Beneficial Holders of the Debentures representing, in the aggregate, not less than 25% of the aggregate principal amount of the Debentures of such series advise the Depository in writing, through the Depository Participants, that the continuation of the book-entry only registration system for such series of Debentures is no longer in their best interest and also provided that at the time of such transfer the Debenture Trustee has not waived the Event of Default pursuant to Section 8.3;

 

  (v) Global Debentures may be transferred if required by applicable law; or

 

  (vi) Global Debentures may be transferred if the book-entry only registration system ceases to exist.

 

(c) With respect to the Global Debentures, unless and until definitive certificates have been issued to Beneficial Holders pursuant to subsection 3.2(b):

 

  (i) the Corporation and the Debenture Trustee may deal with the Depository for all purposes (including paying interest on the Debentures) as the sole holder of such series of Debentures and the authorized representative of the Beneficial Holders;

 

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  (ii) the rights of the Beneficial Holders shall be exercised only through the Depository and shall be limited to those established by law and agreements between such Beneficial Holders and the Depository or the Depository Participants;

 

  (iii) the Depository will make book entry transfers among the Depository Participants; and

 

  (iv) whenever this Trust Indenture requires or permits actions to be taken based upon instruction or directions of Debentureholders evidencing a specified percentage of the outstanding Debentures, the Depository shall be deemed to be counted in that percentage only to the extent that it has received instructions to such effect from the Beneficial Holders or the Depository Participant, and has delivered such instructions in writing to the Debenture Trustee.

 

(d) Whenever a notice or other communication is required to be provided to Debentureholders, unless and until definitive certificate(s) have been issued to Beneficial Holders pursuant to this Section 3.1, the Debenture Trustee shall provide all such notices and communications to the Depository and the Depository shall deliver such notices and communications to such Beneficial Holders in accordance with Applicable Securities Legislation (including national policies or instruments). Upon the termination of the book-entry only registration system on the occurrence of one of the conditions specified in Section 3.1(b) with respect to a series of Debentures issued hereunder, the Debenture Trustee shall notify all applicable Beneficial Holders, through the Depository, of the availability of definitive Debenture certificates. Upon surrender by the Depository of the certificate(s) representing the Global Debentures and receipt of new registration instructions from the Depository, the Debenture Trustee shall deliver the definitive Debenture certificates for such Debentures to the holders thereof in accordance with the new registration instructions and thereafter, the registration and transfer of such Debentures will be governed by Section 3.2 and the remaining Sections of this Article 3.

 

3.2 Fully Registered Debentures

 

(a) With respect to each series of Debentures issuable as Fully Registered Debentures, the Corporation shall cause to be kept by and at the principal office of the Debenture Trustee in Calgary and by the Debenture Trustee or such other registrar as the Corporation, with the approval of the Debenture Trustee, may appoint at such other place or places, if any, as may be specified in the Debentures of such series or as the Corporation may designate with the approval of the Debenture Trustee, a register in which shall be entered the names and addresses of the holders of Fully Registered Debentures and particulars of the Debentures held by them respectively and of all transfers of Fully Registered Debentures. Such registration shall be noted on the Debentures by the Debenture Trustee or other registrar unless a new Debenture shall be issued upon such transfer .

 

(b) No transfer of a Fully Registered Debenture shall be valid unless made on such register referred to in Section 3.2(a) by the registered holder or such holder’s executors, administrators or other legal representatives or an attorney duly appointed by an instrument in writing in form and execution satisfactory to the Debenture Trustee or other registrar upon surrender of the Debentures together with a duly executed form of transfer acceptable to the Debenture Trustee and upon compliance with such other reasonable requirements as the Debenture Trustee or other registrar may prescribe, nor unless the name of the transferee shall have been noted on the Debenture by the Debenture Trustee or other registrar.

 

3.3 Transferee Entitled to Registration

 

The transferee of a Debenture shall be entitled, after the appropriate form of transfer is lodged with the Debenture Trustee or other registrar and upon compliance with all other conditions in that behalf required by this Indenture or by law, to be entered on the register as the owner of such Debenture free from all equities or rights of set-off or counterclaim between the Corporation and the transferor or any previous holder of such Debenture, save in respect of equities of which the Corporation is required to take notice by statute or by order of a court of competent jurisdiction.

 

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3.4 No Notice of Trusts

 

Neither the Corporation nor the Debenture Trustee nor any registrar shall be bound to take notice of or see to the execution of any trust (other than that created by this Indenture) whether express, implied or constructive, in respect of any Debenture, and may transfer the same on the direction of the person registered as the holder thereof, whether named as trustee or otherwise, as though that person were the beneficial owner thereof.

 

3.5 Registers Open for Inspection

 

The registers referred to in Sections 3.1 and 3.2 shall at all reasonable times during regular business hours be open for inspection by the Corporation, the Debenture Trustee or any Debentureholder. Every registrar, including the Debenture Trustee, shall from time to time when requested so to do by the Corporation or by the Debenture Trustee, in writing, furnish the Corporation or the Debenture Trustee, as the case may be, with a list of names and addresses of holders of registered Debentures entered on the register kept by them and showing the principal amount and serial numbers of the Debentures held by each such holder, provided the Debenture Trustee shall be entitled to charge a reasonable fee to provide such a list.

 

3.6 Exchanges of Debentures

 

(a) Subject to Section 3.7, Debentures in any authorized form or denomination, other than Global Debentures, may be exchanged for Debentures in any other authorized form or denomination, of the same series and date of maturity, bearing the same interest rate and of the same aggregate principal amount as the Debentures so exchanged.

 

(b) In respect of exchanges of Debentures permitted by Section 3.6(a), Debentures of any series may be exchanged only at the principal offices of the Debenture Trustee in the City of Calgary or at such other place or places, if any, as may be specified in the Debentures of such series and at such other place or places as may from time to time be designated by the Corporation with the approval of the Debenture Trustee. Any Debentures tendered for exchange shall be surrendered to the Debenture Trustee. The Corporation shall execute and the Debenture Trustee shall certify all Debentures necessary to carry out exchanges as aforesaid. All Debentures surrendered for exchange shall be cancelled.

 

(c) Debentures issued in exchange for Debentures which at the time of such issue have been selected or called for redemption at a later date shall be deemed to have been selected or called for redemption in the same manner and shall have noted thereon a statement to that effect.

 

3.7 Closing of Registers

 

(a) Neither the Corporation nor the Debenture Trustee nor any registrar shall be required to:

 

  (i) make transfers or exchanges of Fully Registered Debentures on any Interest Payment Date for such Debentures or during the seven preceding Business Days;

 

  (ii) make transfers or exchanges of any Debentures on the day of any selection by the Debenture Trustee of Debentures to be redeemed or during the seven preceding Business Days; or

 

  (iii) make exchanges of any Debentures which will have been selected or called for redemption unless upon due presentation thereof for redemption such Debentures shall not be redeemed.

 

(b) Subject to any restriction herein provided, the Corporation with the approval of the Debenture Trustee may at any time close any register for any series of Debentures, other than those kept at the principal office of the Debenture Trustee in Calgary, and transfer the registration of any Debentures registered thereon to another register (which may be an existing register) and thereafter such Debentures shall be deemed to be registered on such other register. Notice of such transfer shall be given to the holders of such Debentures.

 

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3.8 Charges for Registration, Transfer and Exchange

 

For each Debenture exchanged, registered, transferred or discharged from registration, the Debenture Trustee or other registrar, except as otherwise herein provided, may make a reasonable charge for its services and in addition may charge a reasonable sum for each new Debenture issued (such amounts to be agreed upon by the Debenture Trustee and the Corporation from time to time), and payment of such charges and reimbursement of the Debenture Trustee or other registrar for any stamp taxes or governmental or other charges required to be paid shall be made by the party requesting such exchange, registration, transfer or discharge from registration as a condition precedent thereto. Notwithstanding the foregoing provisions, no charge shall be made to a Debentureholder hereunder:

 

(a) for any exchange, registration, transfer or discharge from registration of any Debenture applied for within a period of two months from the date of the first delivery of Debentures of that series or, with respect to Debentures subject to a Periodic Offering, within a period of two months from the date of delivery of any such Debenture;

 

(b) for any exchange of any interim or temporary Debenture or interim certificate that has been issued under Section 2.9 for a definitive Debenture;

 

(c) for any exchange of a Global Debenture as contemplated in Section 3.1; or

 

(d) for any exchange of any Debenture resulting from a partial redemption under Section 4.2.

 

3.9 Ownership of Debentures

 

(a) Unless otherwise required by law, the person in whose name any registered Debenture is registered shall for all the purposes of this Indenture be and be deemed to be the owner thereof and payment of or on account of the principal of and premium, if any, on such Debenture and interest thereon shall be made to such registered holder.

 

(b) The registered holder for the time being of any registered Debenture shall be entitled to the principal, premium, if any, and/or interest evidenced by such instruments, respectively, free from all equities or rights of set-off or counterclaim between the Corporation and the original or any intermediate holder thereof and all persons may act accordingly and the receipt of any such registered holder for any such principal, premium or interest shall be a good discharge to the Corporation and/or the Debenture Trustee for the same and neither the Corporation nor the Debenture Trustee shall be bound to inquire into the title of any such registered holder.

 

(c) Where Fully Registered Debentures are registered in more than one name, the principal, premium, if any, and interest from time to time payable in respect thereof may be paid to the order of all such holders, failing written instructions from them to the contrary, and the receipt of any one of such holders therefor shall be a valid discharge, to the Debenture Trustee, any registrar and to the Corporation.

 

(d) In the case of the death of one or more joint holders of any Fully Registered Debenture the principal, premium, if any, and interest from time to time payable thereon may be paid to the order of the survivor or survivors of such registered holders and the receipt of any such survivor or survivors therefor shall be a valid discharge to the Debenture Trustee and any registrar and to the Corporation.

 

ARTICLE 4

REDEMPTION AND PURCHASE OF DEBENTURES

 

4.1 Applicability of Article

 

(a)

Subject to regulatory approval, the Corporation shall have the right, at its option to redeem, either in whole at any time or in part from time to time before maturity, any Debentures issued hereunder of any series

 

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which by their terms are made so redeemable (subject, however, to any applicable restriction on the redemption of Debentures of such series) at such rate or rates of premium, if any, and on such date or dates and in accordance with such other provisions as shall have been determined at the time of issue of such Debentures and as shall have been expressed in this Indenture, in the Debentures, in an Officer’s Certificate, or in a supplemental indenture authorizing or providing for the issue thereof, or in the case of Additional Debentures issued pursuant to a Periodic Offering, in the Written Direction of the Corporation requesting the certification and delivery thereof.

 

(b) Subject to regulatory approval, the Corporation shall also have the right at its option to repay, either in whole or in part, on maturity, by payment of money in accordance with Section 2.13, any Debentures issued hereunder of any series which by their terms are made so repayable on maturity (subject however, to any applicable restriction on the repayment of the principal amount of the Debentures of such series) at such rate or rates of premium, if any, and on such date or dates and in accordance with such other provisions as shall have been determined at the time of issue of such Debenture and shall have been expressed in this Indenture, in the Debentures, in an Officer’s Certificate, or in a supplemental indenture authorizing or providing for the issue thereof, or in the case of Additional Debentures issued pursuant to a Periodic Offering, in the Written Direction of the Corporation requesting the certification and delivery thereof.

 

4.2 Partial Redemption

 

If less than all the Debentures of any series for the time being outstanding are at any time to be redeemed, the Debentures to be so redeemed shall be selected by the Debenture Trustee on a pro rata basis to the nearest multiple of US$1,000 in accordance with the principal amount of the Debentures registered in the name of each holder or in such other manner as the Debenture Trustee deems equitable, subject to the approval of the Toronto Stock Exchange. Unless otherwise specifically provided in the terms of any series of Debentures, no Debenture shall be redeemed in part unless the principal amount redeemed is US$1,000 or a multiple thereof. For this purpose, the Debenture Trustee may make, and from time to time vary, regulations with respect to the manner in which such Debentures may be drawn for redemption and regulations so made shall be valid and binding upon all holders of such Debentures notwithstanding the fact that as a result thereof one or more of such Debentures may become subject to redemption in part only. In the event that one or more of such Debentures becomes subject to redemption in part only, upon surrender of any such Debentures for payment of the Redemption Price, together with interest accrued to but excluding the Redemption Date, with respect to one or more Global Debentures, the Depository shall make notations on the Global Debenture of the principal amount thereof so redeemed or, if the Debentures are then in fully registered form, the Corporation shall execute and the Debenture Trustee shall certify and deliver without charge to the holder thereof or upon the holder’s order one or more new Debentures for the unredeemed part of the principal amount of the Debenture or Debentures so surrendered. Unless the context otherwise requires, the terms “Debenture” or “Debentures” as used in this Article 4 shall be deemed to mean or include any part of the principal amount of any Debenture which in accordance with the foregoing provisions has become subject to redemption.

 

4.3 Notice of Redemption

 

Notice of redemption (the “ Redemption Notice ”) of any series of Debentures shall be given to the holders of the Debentures so to be redeemed not more than 60 days nor less than 30 days prior to the date fixed for redemption (the “ Redemption Date ”) in the manner provided in Section 13.2 . Every such notice shall specify the aggregate principal amount of Debentures called for redemption, the Redemption Date, the Redemption Price and the places of payment and shall state that interest upon the principal amount of Debentures called for redemption shall cease to be payable from and after the Redemption Date. In addition, unless all the outstanding Debentures are to be redeemed, the Redemption Notice shall specify:

 

(a) in the case of a Global Debenture, the manner in which the redemption will take place (as agreed upon by the Depository, the Debenture Trustee and the Corporation);

 

(b) if applicable, the distinguishing letters and numbers of the registered Debentures which are to be redeemed (or of such thereof as are registered in the name of such Debentureholder);

 

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(c) in the case of a published notice, if applicable, the distinguishing letters and numbers of the Debentures which are to be redeemed or, if such Debentures are selected by terminal digit or other similar system, such particulars as may be sufficient to identify the Debentures so selected; and

 

(d) in all cases, the principal amounts of such Debentures or, if any such Debenture is to be redeemed in part only, the principal amount of such part.

 

In the event that all Debentures to be redeemed are registered Debentures, publication shall not be required.

 

4.4 Debentures Due on Redemption Dates

 

Provided that a Redemption Notice has been provided to Debentureholders in accordance with Section 4.3, all the Debentures so called for redemption shall thereupon be and become due and payable at the Redemption Price, together with accrued interest to but excluding the Redemption Date, on the Redemption Date specified in such notice, in the same manner and with the same effect as if it were the date of maturity specified in such Debentures, anything therein or herein to the contrary notwithstanding, and from and after such Redemption Date, if the monies necessary to redeem such Debentures shall have been deposited as provided in Section 4.5 and affidavits or other proof satisfactory to the Debenture Trustee as to the publication and/or mailing of such notices shall have been lodged with it, interest upon the Debentures shall cease. If any question shall arise as to whether any notice has been given as above provided and such deposit made, such question shall be decided by the Debenture Trustee whose decision shall be final and binding upon all parties in interest.

 

4.5 Deposit of Redemption Monies

 

Redemption of Debentures shall be provided for by the Corporation depositing with the Debenture Trustee or any paying agent to the order of the Debenture Trustee, on or before 11:00 a.m. Calgary time on the Business Day immediately prior to the Redemption Date specified in such notice, such sums of money as may be sufficient to pay the Redemption Price of the Debentures so called for redemption, plus accrued and unpaid interest thereon up to but excluding the Redemption Date. The Corporation shall also deposit with the Debenture Trustee a sum of money sufficient to pay any charges or expenses that may be incurred by the Debenture Trustee in connection with such redemption. Every such deposit shall be irrevocable. From the sums so deposited the Debenture Trustee shall pay or cause to be paid to the holders of such Debentures so called for redemption, upon surrender of such Debentures, the principal, premium (if any) and interest (if any) to which they are respectively entitled on redemption.

 

4.6 Failure to Surrender Debentures Called for Redemption

 

In the event that the Debentures are held in fully registered (non-book entry) form and a holder of a Debenture so called for redemption shall fail on or before the Redemption Date so to surrender such holder’s Debenture, or shall not within such time accept payment of the redemption monies payable, or give such receipt therefor, if any, as the Debenture Trustee may require, such redemption monies may be set aside in trust without interest, either in the deposit department of the Debenture Trustee or in a chartered bank, and such setting aside shall for all purposes be deemed a payment to the Debentureholder of the sum so set aside and, to that extent, the Debenture shall thereafter not be considered as outstanding hereunder and the Debentureholder shall have no other right except to receive payment out of the monies so paid and deposited, upon surrender and delivery up of such holder’s Debenture of the Redemption Price, as the case may be, of such Debenture plus any accrued but unpaid interest thereon to, but excluding the Redemption Date. In the event that any money required to be deposited hereunder with the Debenture Trustee or any depository or paying agent on account of principal, premium, if any, or interest, if any, on Debentures issued hereunder shall remain so deposited for a period of six years from the Redemption Date, then such monies shall at the end of such period be paid over by the Debenture Trustee or such depository or paying agent to the Corporation on its demand, and thereupon the Debenture Trustee shall not be responsible to Debentureholders for any amounts owing to them and subject to applicable law, thereafter the holder of a Debenture in respect of which such money was so repaid to the Corporation shall have no rights in respect thereof except to obtain payment of the money due from the Corporation, subject to any limitation period provided by the laws of Alberta. Notwithstanding the foregoing, the Debenture Trustee will pay any remaining funds prior to the expiry of six years after the Redemption Date to the Corporation upon receipt from the Corporation, or one of its

 

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Subsidiaries, of an unconditional letter of credit from a Schedule A Canadian chartered bank in an amount equal to or in excess of the amount of the remaining funds. If the remaining funds are paid to the Corporation prior to the expiry of six years after the Redemption Date, the Corporation shall reimburse the Debenture Trustee for any amounts required to be paid by the Debenture Trustee to a holder of a Debenture pursuant to the redemption after the date of such payment of the remaining funds to the Corporation but prior to six years after the redemption.

 

4.7 Cancellation of Debentures Redeemed

 

Subject to the provisions of Section 4.2 as to Debentures redeemed or purchased in part, all Debentures redeemed and paid under this Article 4 shall forthwith be delivered to the Debenture Trustee and cancelled and no Debentures shall be issued in substitution therefor.

 

4.8 Purchase of Debentures by the Corporation

 

Unless otherwise specifically provided with respect to a particular series of Debentures, the Corporation may, if it is not at the time in default hereunder, at any time and from time to time, at its option, purchase Debentures in the market (which shall include purchases from or through an investment dealer or a firm holding membership on a recognized stock exchange) or by tender or by contract, at any price. All Debentures so purchased may, at the option of the Corporation, be delivered to the Debenture Trustee and shall be cancelled and no Debentures shall be issued in substitution therefor.

 

If, upon an invitation for tenders, more Debentures are tendered at the same lowest price that the Corporation is prepared to accept, the Debentures to be purchased by the Corporation shall be selected by the Debenture Trustee on a pro rata basis or in such other manner (which may include selection by lot, random selection by computer or any other method) consented to by the Toronto Stock Exchange which the Debenture Trustee considers appropriate, from the Debentures tendered by each tendering Debentureholder who tendered at such lowest price. For this purpose the Debenture Trustee may make, and from time to time amend, regulations with respect to the manner in which Debentures may be so selected, and regulations so made shall be valid and binding upon all Debentureholders, notwithstanding the fact that as a result thereof one or more of such Debentures become subject to purchase in part only. The holder of a Debenture of which a part only is purchased, upon surrender of such Debenture for payment, shall be entitled to receive, without expense to such holder, one or more new Debentures for the unpurchased part so surrendered, and the Debenture Trustee shall certify and deliver such new Debenture or Debentures upon receipt of the Debenture so surrendered or, with respect to a Global Debenture, the Depository shall make notations on the Global Debenture of the principal amount thereof so purchased.

 

ARTICLE 5

SUBORDINATION OF DEBENTURES

 

5.1 Applicability of Article

 

The indebtedness, liabilities and obligations of the Corporation hereunder (except as provided in Section 14.15) or under the Debentures, whether on account of principal, interest or otherwise, but excluding the issuance of Common Shares or other securities similar in nature thereto upon any conversion pursuant to Article 6, upon any redemption pursuant to Article 4, or at maturity pursuant to Article 4 (collectively, the “ Debenture Liabilities ”), shall be subordinated and postponed and subject in right of payment, to the extent and in the manner hereinafter set forth in the following sections of this Article 5, to the full and final payment of all Senior Indebtedness of the Corporation and each holder of any such Debenture by his acceptance thereof agrees to and shall be bound by the provisions of this Article 5.

 

5.2 Order of Payment

 

In the event of any dissolution, winding-up, liquidation, bankruptcy, insolvency, receivership, creditor enforcement or realization or other similar proceedings relating to the Corporation or any of its property (whether voluntary or involuntary, partial or complete) or any other marshalling of the assets and liabilities of the Corporation or any sale of all or substantially all of the assets of the Corporation:

 

(a) all Senior Indebtedness shall first be paid in full, or provision made for such payment, before any payment is made on account of Debenture Liabilities;

 

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(b) any payment or distribution of assets of the Corporation, whether in cash, property or securities, to which the holders of the Debentures or the Debenture Trustee on behalf of such holders would be entitled except for the provisions of this Article 5, shall be paid or delivered by the trustee in bankruptcy, receiver, assignee for the benefit of creditors, or other liquidating agent making such payment or distribution, directly to the holders of Senior Indebtedness or their representative or representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any of such Senior Indebtedness may have been issued, to the extent necessary to pay all Senior Indebtedness in full after giving effect to any concurrent payment or distribution, or provision therefor, to the holders of such Senior Indebtedness; and

 

(c) the Senior Creditors or a receiver or a receiver-manager of the Corporation or of all or part of its assets or any other enforcement agent may sell, mortgage, or otherwise dispose of the Corporation assets in whole or in part, free and clear of all Debenture Liabilities and without the approval of the Debentureholders or the Debenture Trustee or any requirement to account to the Debenture Trustee or the Debentureholders.

 

The rights and priority of the Senior Indebtedness and the subordination pursuant hereto shall not be affected by :

 

  (i) the time, sequence or order of creating, granting, executing, delivering of, or registering, perfecting or failing to register or perfect any security notice, caveat, financing statement or other notice in respect of the Senior Security;

 

  (ii) the time or order of the attachment, perfection or crystallization of any security constituted by the Senior Security;

 

  (iii) the taking of any collection, enforcement or realization proceedings pursuant to the Senior Security;

 

  (iv) the date of obtaining of any judgment or order of any bankruptcy court or any court administering bankruptcy, insolvency or similar proceedings as to the entitlement of the Senior Creditors, or any of them or the Debentureholders or other Trustee or any of them to any money or property of the Corporation;

 

  (v) the failure to exercise any power or remedy reserved to the Senior Creditors under the Senior Security or to insist upon a strict compliance with any terms thereof;

 

  (vi) whether any Senior Security is now perfected, hereafter ceases to be perfected, is avoidable by any trustee in bankruptcy or like official or is otherwise set aside, invalidated or lapses;

 

  (vii) the date of giving or failing to give notice to or making demand upon the Corporation; or

 

  (viii) any other matter whatsoever.

 

5.3 Subrogation to Rights of Holders of Senior Indebtedness

 

(a)

Subject to the prior payment in full of all Senior Indebtedness, the holders of the Debentures shall be subrogated to the rights of the holders of Senior Indebtedness to receive payments or distributions of assets of the Corporation to the extent of the application thereto of such payments or other assets which would have been received by the holders of the Debentures but for the provisions hereof until the principal of and interest on the Debentures shall be paid in full, and no such payments or distributions to the holders of the Debentures of cash, property or securities, which otherwise would be payable or distributable to the holders of the Senior Indebtedness, shall, as between the Corporation, its creditors other than the holders of Senior

 

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Indebtedness, and the holders of Debentures, be deemed to be a payment by the Corporation to the holders of the Senior Indebtedness or on account of the Senior Indebtedness, it being understood that the provisions of this Article 5 are and are intended solely for the purpose of defining the relative rights of the holders of the Debentures, on the one hand, and the holders of Senior Indebtedness, on the other hand.

 

(b) The Debenture Trustee, for itself and on behalf of each of the Debentureholders, hereby waives any and all rights to require a Senior Creditor to pursue or exhaust any rights or remedies with respect to the Corporation or any property and assets subject to the Senior Security or in any other manner to require the marshalling of property, assets or security in connection with the exercise by the Senior Creditors of any rights, remedies or recourses available to them.

 

5.4 Obligation to Pay Not Impaired

 

Nothing contained in this Article 5 or elsewhere in this Indenture or in the Debentures is intended to or shall impair, as between the Corporation, its creditors other than the holders of Senior Indebtedness, and the holders of the Debentures, the obligation of the Corporation, which is absolute and unconditional, to pay to the holders of the Debentures the principal of and interest on the Debentures, as and when the same shall become due and payable in accordance with their terms, or affect the relative rights of the holders of the Debentures and creditors of the Corporation other than the holders of the Senior Indebtedness, nor shall anything herein or therein prevent the Debenture Trustee or the holder of any Debenture from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if any, under this Article 5 of the holders of Senior Indebtedness.

 

5.5 No Payment if Senior Indebtedness in Default

 

Upon the maturity of any Senior Indebtedness by lapse of time, acceleration or otherwise, or any other enforcement of any Senior Indebtedness, then all such Senior Indebtedness shall first be paid in full, or shall first have been duly provided for, before any payment is made on account of the Debenture Liabilities.

 

In case of default with respect to any Senior Indebtedness permitting a Senior Creditor to demand payment or accelerate the maturity thereof, unless and until such default shall have been cured or waived or shall have ceased to exist, no payment (by purchase of Debentures or otherwise) shall be made by the Corporation with respect to the Debenture Liabilities and neither the Debenture Trustee nor the holders of Debentures shall be entitled to demand, institute proceedings for the collection of, or receive any payment or benefit (including without limitation by set-off, combination of accounts or otherwise in any manner whatsoever) on account of indebtedness represented by the Debentures (a) in a manner inconsistent with the terms (as they exist on the date of issue) of the Debentures or (b) at any time when an event of default has occurred under the Senior Indebtedness and is continuing and the notice of such event of default has been given by or on behalf of the holders of Senior Indebtedness to the Corporation, unless the Senior Indebtedness has been repaid in full.

 

The fact that any payment hereunder is prohibited by this Section 5.5 shall not prevent the failure to make such payment from being an Event of Default hereunder.

 

5.6 Payment on Debentures Permitted

 

Nothing contained in this Article 5 or elsewhere in this Indenture, or in any of the Debentures, shall affect the obligation of the Corporation to make, or prevent the Corporation from making, at any time except as prohibited by Section 5.5, any payment of principal of or interest on the Debentures. The fact that any such payment is prohibited by Section 5.5 shall not prevent the failure to make such payment from being an Event of Default hereunder. Nothing contained in this Article 5 or elsewhere in this Indenture, or in any of the Debentures, shall prevent the conversion of the Debentures or, except as prohibited by Section 5.5, the application by the Debenture Trustee of any monies deposited with the Debenture Trustee hereunder for the purpose, to the payment of or on account of the Debenture Liabilities.

 

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5.7 Confirmation of Subordination

 

Each holder of Debentures by his acceptance thereof authorizes and directs the Debenture Trustee on his behalf to take such action as may be necessary or appropriate to effect the subordination as provided in this Article 5 and appoints the Debenture Trustee his attorney-in-fact for any and all such purposes. Upon request of the Corporation, and upon being furnished an Officer’s Certificate stating that one or more named persons are Senior Creditors and specifying the amount and nature of the Senior Indebtedness of such Senior Creditor, the Debenture Trustee shall enter into a written agreement or agreements with the Corporation and the person or persons named in such Officer’s Certificate providing that such person or persons are entitled to all the rights and benefits of this Article 5 as a Senior Creditor and for such other matters, such as an agreement not to amend the provisions of this Article 5 and the definitions used herein without the consent of such Senior Creditor, as the Senior Creditor may reasonably request. Such agreement shall be conclusive evidence that the indebtedness specified therein is Senior Indebtedness, however, nothing herein shall impair the rights of any Senior Creditor who has not entered into such an agreement.

 

5.8 Knowledge of Debenture Trustee

 

Notwithstanding the provisions of this Article 5 or any provision in this Indenture or in the Debentures contained, the Debenture Trustee will not be charged with knowledge of any Senior Indebtedness or of any default in the payment thereof, or of the existence of any other fact that would prohibit the making of any payment of monies to or by the Debenture Trustee, or the taking of any other action by the Debenture Trustee, unless and until the Debenture Trustee has received written notice thereof from the Corporation, any Debentureholder or any Senior Creditor.

 

5.9 Debenture Trustee May Hold Senior Indebtedness

 

The Debenture Trustee is entitled to all the rights set forth in this Article 5 with respect to any Senior Indebtedness at the time held by it, to the same extent as any other holder of Senior Indebtedness, and nothing in this Indenture deprives the Debenture Trustee of any of its rights as such holder.

 

5.10 Rights of Holders of Senior Indebtedness Not Impaired

 

No right of any present or future holder of any Senior Indebtedness to enforce the subordination herein will at any time or in any way be prejudiced or impaired by any act or failure to act on the part of the Corporation or by any non-compliance by the Corporation with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof which any such holder may have or be otherwise charged with.

 

5.11 Altering the Senior Indebtedness

 

The holders of the Senior Indebtedness have the right to extend, renew, modify or amend the terms of the Senior Indebtedness or any security therefor and to release, sell or exchange such security and otherwise to deal freely with the Corporation, all without notice to or consent of the Debentureholders or the Debenture Trustee and without affecting the liabilities and obligations of the parties to this Indenture or the Debentureholders or the Debenture Trustee.

 

5.12 Additional Indebtedness

 

This Indenture does not restrict the Corporation from incurring additional indebtedness for borrowed money or otherwise or mortgaging, pledging or charging its properties to secure any indebtedness.

 

5.13 Right of Debentureholder to Convert Not Impaired

 

The subordination of the Debentures to the Senior Indebtedness and the provisions of this Article 5 do not impair in any way the right of a Debentureholder to convert its Debentures pursuant to Article 6.

 

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5.14 Invalidated Payments

 

In the event that any of the Senior Indebtedness shall be paid in full and subsequently, for whatever reason, such formerly paid or satisfied Senior Indebtedness becomes unpaid or unsatisfied, the terms and conditions of this Article 5 shall be reinstated and the provisions of this Article shall again be operative until all Senior Indebtedness is repaid in full, provided that such reinstatement shall not give the Senior Creditors any rights or recourses against the Debenture Trustee or the Debentureholders for amounts paid to the Debentureholders subsequent to such payment or satisfaction in full and prior to such reinstatement.

 

5.15 Contesting Security

 

The Debenture Trustee, for itself and on behalf of the Debentureholders, agrees that it shall not contest or bring into question the validity, perfection or enforceability of any of the Senior Security, or the relative priority of the Senior Security.

 

ARTICLE 6

CONVERSION OF DEBENTURES

 

6.1 Applicability of Article

 

Any Debentures issued hereunder of any series which by their terms are convertible (subject, however, to any applicable restriction of the conversion of Debentures of such series) will be convertible into Common Shares or other securities, at such conversion rate or rates, and on such date or dates and in accordance with such other provisions as shall have been determined at the time of issue of such Debentures and shall have been expressed in this Indenture, in such Debentures, in an Officer’s Certificate, or in a supplemental indenture authorizing or providing for the issue thereof.

 

Such right of conversion shall extend only to the maximum number of whole Common Shares into which the aggregate principal amount of the Debenture or Debentures surrendered for conversion at any one time by the holder thereof may be converted. Fractional interests in Common Shares shall be adjusted for in the manner provided in Section 6.6.

 

6.2 Notice of Expiry of Conversion Privilege

 

Notice of the expiry of the conversion privileges of the Debentures shall be given by or on behalf of the Corporation, not more than 60 days and not less than 30 days prior to the date fixed for the Time of Expiry, in the manner provided in Section 13.2.

 

6.3 Revival of Right to Convert

 

If the redemption of any Debenture called for redemption by the Corporation is not made or the payment of the purchase price of any Debenture which has been tendered in acceptance of an offer by the Corporation to purchase Debentures for cancellation is not made, in the case of a redemption upon due surrender of such Debenture or in the case of a purchase on the date on which such purchase is required to be made, as the case may be, then, provided the Time of Expiry has not passed, the right to convert such Debentures shall revive and continue as if such Debenture had not been called for redemption or tendered in acceptance of the Corporation’s offer, respectively.

 

6.4 Manner of Exercise of Right to Convert

 

(a)

The holder of a Debenture desiring to convert such Debenture in whole or in part into Common Shares (or the Depository in the case of an instruction by a Beneficial Holder through one or more Depository Participants concerning the exercise of its conversion right) shall surrender such Debenture to the Debenture Trustee at its principal office in the City of Calgary together with a conversion notice in the form attached to the Debenture or any other written notice in a form satisfactory to the Debenture Trustee,

 

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in either case duly executed by the holder or his executors or administrators or other legal representatives or his or their attorney duly appointed by an instrument in writing in form and executed in a manner satisfactory to the Debenture Trustee, exercising his right to convert such Debenture in accordance with the provisions of this Article; provided that with respect to a Global Debenture, the obligation to surrender a Debenture to the Debenture Trustee shall be satisfied if the Debenture Trustee makes notation on the Global Debenture of the principal amount thereof so converted and the Debenture Trustee is provided with all other documentation which it may request. Thereupon such Debentureholder or, subject to payment of all applicable stamp or security transfer taxes or other governmental charges and compliance with all reasonable requirements of the Debenture Trustee, his nominee(s) or assignee(s) shall be entitled to be entered in the books of the Corporation as at the Date of Conversion (or such later date as is specified in Section 6.4(b)) as the holder of the number of Common Shares into which such Debenture is convertible in accordance with the provisions of this Article and, as soon as practicable thereafter, the Corporation shall deliver to such Debentureholder or, subject as aforesaid, his nominee(s) or assignee(s), a certificate or certificates for such Common Shares and make or cause to be made any payment of interest to which such holder is entitled in accordance with Section 6.4(e) hereof.

 

(b) For the purposes of this Article, a Debenture shall be deemed to be surrendered for conversion on the date (herein called the “ Date of Conversion ”) on which it is so surrendered in accordance with the provisions of this Article or, in the case of a Global Debenture on the date on which the Debenture Trustee received notice of and all necessary documentation in respect of the exercise of the conversion rights and, in the case of a Debenture so surrendered by post or other means of transmission, on the date on which it is received by the Debenture Trustee at one of its offices specified in Section 6.4(a); provided that if a Debenture is surrendered for conversion on a day on which the register of Common Shares is closed, the person or persons entitled to receive Common Shares shall become the holder or holders of record of such Common Shares as at the date on which such register is next reopened.

 

(c) Any part, being US$1,000 or an integral multiple thereof, of a Debenture in a denomination in excess of US$1,000 may be converted as provided in this Article and all references in this Indenture to conversion of Debentures shall be deemed to include conversion of such part.

 

(d) The holder of any Debenture of which only a part is converted shall, upon the exercise of his right of conversion surrender such Debenture to the Debenture Trustee, and the Debenture Trustee shall cancel the same and shall without charge forthwith certify and deliver to the holder a new Debenture or Debentures in an aggregate principal amount equal to the unconverted part of the principal amount of the Debenture so surrendered or, with respect to a Global Debenture, the Depository shall make notations on the Global Debentures of the principal amount thereof so converted.

 

(e) The holder of a Debenture surrendered for conversion in accordance with this Section 6.4 shall be entitled (subject to any applicable restriction on the right to receive interest on conversion of Debentures of any series) to receive accrued and unpaid interest in respect thereof up to but excluding the Date of Conversion and the Common Shares issued upon such conversion shall rank only in respect of distributions or dividends declared in favour of holders of Common Shares of record on and after the Date of Conversion or such later date as such holder shall become the holder of record of such Common Shares pursuant to Section 6.4(b), from which applicable date they will for all purposes be and be deemed to be issued and outstanding as fully paid and non-assessable Common Shares.

 

(f) Upon conversion of any Debentures held in book-entry only form, the Depository shall make notations in the Global Debenture of the principal amount of Debentures so converted, which notation shall be authenticated by the Debenture Trustee, and the Corporation and the Debenture Trustee shall cause to be deposited with the Depository the shares into which such Debentures have been converted

 

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6.5 Adjustment of Conversion Price

 

The Conversion Price in effect at any date shall be subject to adjustment from time to time as set forth below.

 

(a) If and whenever at any time prior to the Time of Expiry the Corporation shall (i) subdivide or redivide the outstanding Common Shares into a greater number of Common Shares, (ii) reduce, combine or consolidate the outstanding Common Shares into a smaller number of Common Shares, or (iii) issue Common Shares to the holders of all or substantially all of the outstanding Common Shares by way of a dividend or distribution (other than the issue of Common Shares to holders of Common Shares who have elected to receive dividends or distributions in the form of Common Shares in lieu of cash dividends or cash distributions paid in the ordinary course on the Common Shares), the Conversion Price in effect on the effective date of such subdivision, redivision, reduction, combination or consolidation or on the record date for such issue of Common Shares by way of a dividend or distribution, as the case may be, shall in the case of any of the events referred to in (i) and (iii) above be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or dividend, or shall, in the case of any of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation. Such adjustment shall be made successively whenever any event referred to in this Section 6.5(a) shall occur. Any such issue of Common Shares by way of a dividend or distribution shall be deemed to have been made on the record date for the dividend or distribution for the purpose of calculating the number of outstanding Common Shares under subsections (b) and (c) of this Section 6.5.

 

(b) If and whenever at any time prior to the Time of Expiry the Corporation shall fix a record date for the issuance of options, rights or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 60 days after such record date, to subscribe for or purchase Common Shares (or securities convertible into Common Shares) at a U.S. Currency Equivalent price per share (or having a US Currency Equivalent conversion or exchange price per share) less than 95% of the U.S. Currency Equivalent Current Market Price of a Common Share on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date plus a number of Common Shares equal to the quotient obtained by dividing the aggregate U.S. Currency Equivalent price of the total number of additional Common Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible securities so offered) by the U.S. Currency Equivalent of such Current Market Price per Common Share, and of which the denominator shall be the total number of Common Shares outstanding on such record date plus the total number of additional Common Shares offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed. To the extent that any such options, rights or warrants are not so issued or any such options, rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible into Common Shares) actually issued upon the exercise of such options, rights or warrants, as the case may be.

 

(c)

If and whenever at any time prior to the Time of Expiry the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class other than shares and other than Common Shares distributed to holders of Common Shares who have elected to receive dividends or distributions in the form of such Common Shares in lieu of dividends or distributions paid in the ordinary course, (ii) rights, options or warrants (excluding rights, options or warrants entitling the holders thereof for a period of not more than 60 days to subscribe for or purchase Common Shares or securities convertible into Common Shares), (iii) evidences of its indebtedness, or (iv) assets (excluding dividends or distributions paid in the ordinary course) then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the U.S. Currency Equivalent of the Current Market Price per Common Share on such record date, less the U.S. Currency Equivalent of the fair market value (as determined by an independent firm of chartered accountants acceptable to the Debenture Trustee and the Corporation, which determination shall be conclusive) of such shares or rights, options or warrants or evidences or indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares outstanding on such

 

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record date multiplied by the U.S. Currency Equivalent of such Current Market Price per Common Share. Such adjustment shall be made successively whenever such a record date is fixed. To the extent that such distribution is not so made, the Conversion Price shall be re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon such shares or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be.

 

(d) If and whenever at any time prior to the Time of Expiry, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 6.5(a) or a consolidation, amalgamation, arrangement or merger of the Corporation with or into any other Person or other entity; or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other Person or other entity or a liquidation, dissolution or winding-up of the Corporation, any holder of a Debenture who has not exercised its right of conversion prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance or liquidation, dissolution or winding-up, upon the exercise of such right thereafter, shall be entitled to receive and shall accept, in lieu of the number of Common Shares then sought to be acquired by it, the number of shares or other securities or property of the Corporation or of the Person or other entity resulting from such merger, amalgamation or consolidation, or to which such sale or conveyance may be made or which holders of Common Shares receive pursuant to such liquidation, dissolution or winding-up, as the case may be, that such holder of a Debenture would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance or liquidation, dissolution or winding-up, if, on the record date or the effective date thereof, as the case may be, the holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the conversion right. If determined appropriate by the directors of the Corporation, to give effect to or to evidence the provisions of this Section 6.5(d), the Corporation, its successor, or such purchasing Person or other entity, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, sale or conveyance or liquidation, dissolution or winding-up, enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in this Indenture with respect to the rights and interests thereafter of the holder of Debentures to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as nearly as may reasonably be, with respect to any shares or other securities or property to which a holder of Debentures is entitled on the exercise of its acquisition rights thereafter. Any indenture entered into between the Corporation and the Debenture Trustee pursuant to the provisions of this Section 6.5(d) shall be a supplemental indenture entered into pursuant to the provisions of Article 15. Any indenture entered into between the Corporation, any successor to the Corporation or such purchasing Person or other entity and the Debenture Trustee shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 6.5(d) and which shall apply to successive reclassifications, capital reorganizations, amalgamations, consolidations, mergers, sales or conveyances. Notwithstanding any other provision of this Indenture, in the event any reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, sale or conveyance, liquidation, dissolution or winding-up or other event occurs on or prior to the date which is five years and one day from the issuance of the Debentures, a holder of the Debentures who exercises the right to convert Debentures into Common Shares shall be entitled to receive only shares, other securities or property that constitute Prescribed Securities provided that the fair market value of such Prescribed Securities shall be equal to the fair market value of any Prescribed Securities and any other type of consideration that the holder would have been entitled to receive had such Debentures been converted into Common Shares immediately prior thereto.

 

(e)

In any case in which this Section 6.5 shall require that an adjustment shall become effective immediately after a record date for an event referred to herein, the Corporation may defer, until the occurrence of such event, issuing to the holder of any Debenture converted after such record date and before the occurrence of such event the additional Common Shares issuable upon such conversion by reason of the adjustment required by such event before giving effect to such adjustment; provided, however, that the Corporation shall deliver to such holder an appropriate instrument evidencing such holder’s right to receive such additional Common Shares upon the occurrence of the event requiring such adjustment and the right to

 

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receive any distributions made on such additional Common Shares declared in favour of holders of record of Common Shares on and after the Date of Conversion or such later date as such holder would, but for the provisions of this Section 6.5(e), have become the holder of record of such additional Common Shares pursuant to Section 6.4(b).

 

(f) The adjustments provided for in this Section 6.5 are cumulative and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section, provided that, notwithstanding any other provision of this Section, no adjustment of the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the Conversion Price then in effect; provided however, that any adjustments which by reason of this Section 6.5(f) are not required to be made shall be carried forward and taken into account in any subsequent adjustment.

 

(g) For the purpose of calculating the number of Common Shares outstanding, Common Shares owned by or for the benefit of the Corporation shall not be counted.

 

(h) In the event of any question arising with respect to the adjustments provided in this Section 6.5, such question shall be conclusively determined by a firm of chartered accountants appointed by the Corporation and acceptable to the Debenture Trustee (who may be the auditors of the Corporation); such accountants shall have access to all necessary records of the Corporation and such determination shall be binding upon the Corporation, the Debenture Trustee, and the Debentureholders.

 

(i) In case the Corporation shall take any action affecting the Common Shares other than action described in this Section 6.5, which in the opinion of the directors of the Corporation, would materially affect the rights of Debentureholders, the Conversion Price shall be adjusted in such manner and at such time, by action of the directors of the Corporation, subject to the prior written consent of the Toronto Stock Exchange, or such other exchange on which the Debentures are then listed, as the directors of the Corporation, in their sole discretion may determine to be equitable in the circumstances. Failure of the directors to make such an adjustment shall be conclusive evidence that they have determined that it is equitable to make no adjustment in the circumstances.

 

(j) Subject to the prior written consent of the Toronto Stock Exchange, or such other exchange on which the Debentures are then listed, no adjustment in the Conversion Price shall be made in respect of any event described in Sections 6.5(a), 6.5(b) or 6.5(c) other than the events described in 6.5(a)(i) or 6.5(a)(ii) if the holders of the Debentures are entitled to participate in such event on the same terms mutatis mutandis as if they had converted their Debentures prior to the effective date or record date, as the case may be, of such event. For greater certainty, the holders of Debentures shall have no right to convert Debentures into any security that is not a Prescribed Security.

 

(k) Except as stated above in this Section 6.5, no adjustment will be made in the Conversion Price for any Debentures as a result of the issuance of Common Shares at less than the U.S. Currency Equivalent of the Current Market Price for such Common Shares on the date of issuance or the then applicable Conversion Price.

 

6.6 No Requirement to Issue Fractional Common Shares

 

The Corporation shall not be required to issue fractional Common Shares upon the conversion of Debentures pursuant to this Article. If more than one Debenture shall be surrendered for conversion at one time by the same holder, the number of whole Common Shares issuable upon conversion thereof shall be computed on the basis of the aggregate principal amount of such Debentures to be converted. If any fractional interest in a Common Share would, except for the provisions of this Section, be deliverable upon the conversion of any principal amount of Debentures, the Corporation shall, in lieu of delivering any certificate representing such fractional interest, make a cash payment to the holder of such Debenture of an amount equal to the fractional interest which would have been issuable multiplied by the U.S. Currency Equivalent of the Current Market Price.

 

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6.7 Corporation to Reserve Common Shares

 

The Corporation covenants with the Debenture Trustee that it will at all times reserve and keep available out of its authorized Common Shares, solely for the purpose of issue upon conversion of Debentures as in this Article provided, and conditionally allot to Debentureholders who may exercise their conversion rights hereunder, such number of Common Shares as shall then be issuable upon the conversion of all outstanding Debentures. The Corporation covenants with the Debenture Trustee that all Common Shares that shall be so issuable shall be duly and validly issued as fully paid and non-assessable.

 

6.8 Cancellation of Converted Debentures

 

Subject to the provisions of Section 6.4 as to Debentures converted in part, all Debentures converted in whole or in part under the provisions of this Article shall be forthwith delivered to and cancelled by the Debenture Trustee and no Debenture shall be issued in substitution therefor.

 

6.9 Certificate as to Adjustment

 

The Corporation shall from time to time immediately after the occurrence of any event which requires an adjustment or readjustment as provided in Section 6.5, deliver an Officer’s Certificate to the Debenture Trustee specifying the nature of the event requiring the same and the amount of the adjustment necessitated thereby and setting forth in reasonable detail the method of calculation and the facts upon which such calculation is based, which certificate and the amount of the adjustment specified therein shall be verified by an opinion of a firm of chartered accountants appointed by the Corporation and acceptable to the Debenture Trustee (who may be the auditors of the Corporation) and shall be conclusive and binding on all parties in interest. When so approved, the Corporation shall, except in respect of any subdivision, redivision, reduction, combination or consolidation of the Common Shares, forthwith give notice to the Debentureholders in the manner provided in Section 13.2 specifying the event requiring such adjustment or readjustment and the results thereof, including the resulting Conversion Price; provided that, if the Corporation has given notice otherwise therein under this Section 6.9 covering all the relevant facts in respect of such event and if the Debenture Trustee approves, no such notice need be given under this Section 6.9.

 

6.10 Notice of Special Matters

 

The Corporation covenants with the Debenture Trustee that so long as any Debenture remains outstanding, it will give notice to the Debenture Trustee, and to the Debentureholders in the manner provided in Section 13.2, of its intention to fix a record date for any event referred to in Section 6.5(a), (b) or (c) (other than the subdivision, redivision, reduction, combination or consolidation of its Common Shares) which may give rise to an adjustment in the Conversion Price, and, in each case, such notice shall specify the particulars of such event and the record date and the effective date for such event; provided that the Corporation shall only be required to specify in such notice such particulars of such event as shall have been fixed and determined on the date on which such notice is given. Such notice shall be given not less than fourteen (14) days in each case prior to such applicable record date.

 

6.11 Protection of Debenture Trustee

 

Subject to Section 14.3, the Debenture Trustee:

 

(a) shall not at any time be under any duty or responsibility to any Debentureholder to determine whether any facts exist which may require any adjustment in the Conversion Price, or with respect to the nature or extent of any such adjustment when made, or with respect to the method employed in making the same;

 

(b) shall not be accountable with respect to the validity or value (or the kind or amount) of any Common Shares or of any shares or other securities or property which may at any time be issued or delivered upon the conversion of any Debenture;

 

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(c) shall not be responsible for any failure of the Corporation to make any cash payment or to issue, transfer or deliver Common Shares or share certificates upon the surrender of any Debenture for the purpose of conversion, or to comply with any of the covenants contained in this Article; and

 

(d) shall be entitled to act and rely on any adjustment calculation of the directors or of the accountants of the Corporation.

 

6.12 Legend on Common Shares

 

The Corporation and Debenture Trustee shall instruct the transfer agent to place the US Legend and/or Canadian Legend, as applicable, set forth in Section 2.14, on the Common Shares issued upon conversion of Initial Debentures pursuant to this Article 6, as well as all certificates issued in exchange for or in substitution of the foregoing securities, which shall also bear the US Legend and, if issued before March 11, 2005, the Canadian Legend, set forth in Section 2.14; provided that if the Common Shares are being sold in accordance with Rule 144 under the 1933 Act, the US Legend may be removed by delivery to the Debenture Trustee, as registrar and transfer agent for the Common Shares, of an opinion of Counsel, of recognized standing reasonably satisfactory to the Corporation, that the US Legend is no longer required under applicable requirements of the 1933 Act or state securities laws. Provided that the Debenture Trustee obtains confirmation from the Corporation that such Counsel is satisfactory to it, it shall be entitled to rely on such opinion of Counsel without further inquiry.

 

ARTICLE 7

COVENANTS OF THE CORPORATION

 

The Corporation hereby covenants and agrees with the Debenture Trustee for the benefit of the Debenture Trustee and the Debentureholders, that so long as any Debentures remain outstanding:

 

7.1 To Pay Principal and Interest

 

The Corporation will duly and punctually pay or cause to be paid to every Debentureholder the principal of, premium (if any) and interest accrued on the Debentures of which it is the holder on the dates, at the places and in the manner mentioned herein and in the Debentures.

 

7.2 To Pay Debenture Trustee’s Remuneration

 

The Corporation will pay the Debenture Trustee reasonable remuneration for its services as Debenture Trustee hereunder and will pay or reimburse the Debenture Trustee on demand for all expenses, disbursements and advances incurred or made by the Debenture Trustee in the administration or execution of the trusts hereby created (including the reasonable compensation and the disbursements of its counsel and all other advisers and assistants not regularly in its employ), both before any default hereunder and thereafter until all the duties of the Debenture Trustee under the trusts hereof shall be finally and fully performed, except any such expense, disbursement or advance as may arise from its negligence or wilful misconduct. Any amount due under this section and unpaid thirty days after request for such payment shall bear interest from the expiration of such thirty days at a rate per annum equal to the then current rate charged by the Debenture Trustee from time to time, payable on demand. After default, all amounts so payable and the interest thereon shall be payable out of any funds coming into the possession of the Debenture Trustee or its successors in the trusts hereunder in priority to any payment of any principal of or interest or premium on the Debentures. The said remuneration shall continue to be payable until the trusts hereof be finally wound up and whether or not the trusts of this Indenture shall be in the course of administration by or under the direction of a court of competent jurisdiction.

 

7.3 To Give Notice of Default

 

The Corporation shall notify the Debenture Trustee immediately upon obtaining knowledge of any Event of Default hereunder.

 

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7.4 Preservation of Existence, Status, etc.

 

Subject to the express provisions hereof, the Corporation will carry on and conduct its activities, and cause its Subsidiaries to carry on and conduct their businesses, in a proper, efficient and business-like manner and in accordance with good business practices. The Corporation will also do all such things and take all such actions as are required to maintain its reporting issuer status in good standing and to comply with the listing requirements of the Toronto Stock Exchange and/or any other exchange on which the Common Shares are listed from time to time. The Corporation shall also do all such things and take all such notices as are reasonably required to ensure that the Common Shares continue to constitute Prescribed Securities.

 

7.5 Keeping of Books

 

The Corporation will keep or cause to be kept proper books of record and account, in which full and correct entries shall be made of all financial transactions and the assets and business of the Corporation in accordance with generally accepted accounting principles.

 

7.6 Reporting Requirements

 

(a) The Corporation will file with the Debenture Trustee copies of continuous disclosure documents furnished to its holders of Common Shares after the date hereof (including annual consolidated financial statements of the Corporation and any reports of the Corporation’s auditors thereon); and

 

(b) In the event that the Corporation has Global Debentures outstanding, the Corporation will file with the Depository copies of continuance disclosure documents furnished to its holders of Common Shares.

 

7.7 No Distributions on Common Shares if Event of Default

 

The Corporation shall not declare or make any distribution to the holders of its issued and outstanding Common Shares after the occurrence of an Event of Default unless and until such default shall have been cured or waived or shall have ceased to exist.

 

7.8 Performance of Covenants by Debenture Trustee

 

If the Corporation shall fail to perform any of its covenants contained in this Indenture, the Debenture Trustee may notify the Debentureholders of such failure on the part of the Corporation or may itself perform any of the covenants capable of being performed by it, but shall be under no obligation to do so or to notify the Debentureholders. All sums so expended or advanced by the Debenture Trustee shall be repayable as provided in Section 7.2. No such performance, expenditure or advance by the Debenture Trustee shall be deemed to relieve the Corporation of any default hereunder.

 

ARTICLE 8

DEFAULT

 

8.1 Events of Default

 

Each of the following events constitutes, and is herein sometimes referred to as, an “ Event of Default ”:

 

(a) failure for 15 days to pay interest on the Debentures when due;

 

(b) failure to pay principal or premium, if any, on the Debentures when due whether at maturity, upon redemption, by declaration or otherwise;

 

(c)

if a decree or order of a Court having jurisdiction is entered adjudging the Corporation a bankrupt or insolvent under the Bankruptcy and Insolvency Act (Canada) or any other bankruptcy, insolvency or

 

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analogous laws, or issuing sequestration or process of execution against, or against any substantial part of, the property of the Corporation, or appointing a receiver of, or of any substantial part of, the property of the Corporation or ordering the winding-up or liquidation of its affairs, and any such decree or order continues unstayed and in effect for a period equal to the lesser of (a) 60 days; and (b) the period of time permitted by the Corporation’s then current senior credit agreement, as the same may be amended, for any such decree or order to continue unstayed and in effect prior to the occurrence of an event of default under such senior credit agreement;

 

(d) if the Corporation institutes proceedings to be adjudicated a bankrupt or insolvent, or consents to the institution of bankruptcy or insolvency proceedings against it under the Bankruptcy and Insolvency Act (Canada) or any other bankruptcy, insolvency or analogous laws, or consents to the filing of any such petition or to the appointment of a receiver of, or of any substantial part of, the property of the Corporation or makes a general assignment for the benefit of creditors, or admits in writing its inability to pay its debts generally as they become due;

 

(e) if a resolution is passed for the winding-up or liquidation of the Corporation except in the course of carrying out or pursuant to a transaction in respect of which the conditions of Section 10.1 are duly observed and performed;

 

(f) if, after the date of this Indenture, any proceedings with respect to the Corporation are taken with respect to a compromise or arrangement, with respect to creditors of the Corporation generally, under the applicable legislation of any jurisdiction;

 

(g) the failure to make and duly consummate an Offer in the manner set forth in section 2.4(i) hereof; or

 

(h) the failure to perform or observe any of the other covenants, agreements or obligations under this Indenture for 60 days after written notice from the Corporation to the Debenture Trustee of such failure.

 

in each and every such event the Debenture Trustee may, in its discretion, and shall, upon receipt of a request in writing signed by the holders of not less than 25% in principal amount of the Debentures then outstanding (or, if there are Global Debentures outstanding, a request signed by holders of the Global Certificates on instructions of Beneficial Holders through one or more Depository Participants of not less than 25% in principal amount of Debentures then outstanding), subject to the provisions of Section 8.3, by notice in writing to the Corporation declare the principal of and interest on all Debentures then outstanding and all other monies outstanding hereunder to be due and payable and the same shall forthwith become immediately due and payable to the Debenture Trustee, and the Corporation shall forthwith pay to the Debenture Trustee for the benefit of the Debentureholders such principal, accrued and unpaid interest and interest on amounts in default on such Debenture (and, where such a declaration is based upon a voluntary winding-up or liquidation of the Corporation, the premium, if any, on the Debentures then outstanding which would have been payable upon the redemption thereof by the Corporation on the date of such declaration) and all other monies outstanding hereunder, together with subsequent interest at the rate borne by the Debentures on such principal, interest and such other monies from the date of such declaration until payment is received by the Debenture Trustee, such subsequent interest to be payable at the times and places and in the monies mentioned in and according to the tenor of the Debentures. Such payment when made shall be deemed to have been made in discharge of the Corporation’s obligations hereunder and any monies so received by the Debenture Trustee shall be applied in the manner provided in Section 8.6.

 

For greater certainty, for the purposes of this Section 8.1, a series of Debentures shall be in default in respect of an Event of Default if such Event of Default relates to a default in the payment of principal, premium, if any, or interest on the Debentures of such series in which case references to Debentures in this Section 8.1 refer to Debentures of that particular series.

 

For purposes of this Article 8, where the Event of Default refers to an Event of Default with respect to a particular series of Debentures as described in this Section 8.1, then this Article 8 shall apply mutatis mutandis to the Debentures of such series and references in this Article 8 to the Debentures shall mean Debentures of the particular series and references to the Debentureholders shall refer to the Debentureholders of the particular series, as applicable.

 

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8.2 Notice of Events of Default

 

If an Event of Default shall occur and be continuing the Debenture Trustee shall, within 30 days after it receives written notice of the occurrence of such Event of Default, give notice of such Event of Default to the Debentureholders in the manner provided in Section 13.2, provided that notwithstanding the foregoing, unless the Debenture Trustee shall have been requested to do so by the holders of at least 25% of the principal amount of the Debentures then outstanding (or by holders of Global Debentures on instructions of Beneficial Holders through one or more Depository Participants of not less than 25% in principal amount of Debentures then outstanding), the Debenture Trustee shall not be required to give such notice if the Debenture Trustee in good faith shall have determined that the withholding of such notice is in the best interests of the Debentureholders and shall have so advised the Corporation in writing.

 

8.3 Waiver of Default

 

Upon the happening of any Event of Default hereunder:

 

(a) the holders of the Debentures shall have the power (in addition to the powers exercisable by Extraordinary Resolution as hereinafter provided) by requisition in writing by the holders of more than a majority of the principal amount of Debentures then outstanding (or by holders of Global Debentures on instructions of Beneficial Holders through one or more Depository Participants of more than a majority of the principal amount of the Debentures then outstanding), to instruct the Debenture Trustee to waive any Event of Default and to cancel any declaration made by the Debenture Trustee pursuant to Section 8.1 and the Debenture Trustee shall thereupon waive the Event of Default and cancel such declaration, or either, upon such terms and conditions as shall be prescribed in such requisition; provided that notwithstanding the foregoing if the Event of Default has occurred by reason of the non-observance or non-performance by the Corporation of any covenant applicable only to one or more series of Debentures, then the holders of more than a majority of the principal amount of the outstanding Debentures of that series (or by holders of Global Debentures on instructions of Beneficial Holders of that series through one or more Depository Participants) shall be entitled to exercise the foregoing power and the Debenture Trustee shall so act and it shall not be necessary to obtain a waiver from the holders of any other series of Debentures; and

 

(b) the Debenture Trustee, so long as it has not become bound to declare the principal and interest on the Debentures then outstanding to be due and payable, or to obtain or enforce payment of the same, shall have power to waive any Event of Default if, in the Debenture Trustee’s opinion, the same shall have been cured or adequate satisfaction made therefor, and in such event to cancel any such declaration theretofore made by the Debenture Trustee in the exercise of its discretion, upon such terms and conditions as the Debenture Trustee may deem advisable.

 

No such act or omission either of the Debenture Trustee or of the Debentureholders shall extend to or be taken in any manner whatsoever to affect any subsequent Event of Default or the rights resulting therefrom.

 

8.4 Enforcement by the Debenture Trustee

 

Subject to the provisions of Section 8.3 and to the provisions of any Extraordinary Resolution that may be passed by the Debentureholders, if the Corporation shall fail to pay to the Debenture Trustee, forthwith after the same shall have been declared to be due and payable under Section 8.1, the principal of and premium (if any) and interest on all Debentures then outstanding, together with any other amounts due hereunder, the Debenture Trustee may in its discretion and shall upon receipt of a request in writing signed by the holders of not less than 25% in principal amount of the Debentures then outstanding (or by holders of Global Debentures on instructions of Beneficial Holders through one or more Depository Participants of not less than 25% in principal amount of the Debentures then outstanding) and upon being funded and indemnified to its reasonable satisfaction against all costs, expenses and liabilities to be incurred, proceed in its name as trustee hereunder to obtain or enforce payment of such principal of and premium (if any) and interest on all the Debentures then outstanding together with any other amounts due hereunder by such proceedings authorized by this Indenture or by law or equity as the Debenture Trustee in such request shall have been directed to take, or if such request contains no such direction, or if the

 

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Debenture Trustee shall act without such request, then by such proceedings authorized by this Indenture or by suit at law or in equity as the Debenture Trustee shall deem expedient.

 

The Debenture Trustee shall be entitled and empowered, either in its own name or as Debenture Trustee of an express trust, or as attorney-in-fact for the holders of the Debentures, or in any one or more of such capacities, to file such proof of debt, amendment of proof of debt, claim, petition or other document as may be necessary or advisable in order to have the claims of the Debenture Trustee and of the holders of the Debentures allowed in any insolvency, bankruptcy, liquidation or other judicial proceedings relative to the Corporation or its creditors or relative to or affecting its property. The Debenture Trustee is hereby irrevocably appointed (and the successive respective holders of the Debentures by taking and holding the same shall be conclusively deemed to have so appointed the Debenture Trustee) the true and lawful attorney-in-fact of the respective holders of the Debentures with authority to make and file in the respective names of the holders of the Debentures or on behalf of the holders of the Debentures as a class, subject to deduction from any such claims of the amounts of any claims filed by any of the holders of the Debentures themselves, any proof of debt, amendment of proof of debt, claim, petition or other document in any such proceedings and to receive payment of any sums becoming distributable on account thereof, and to execute any such other papers and documents and to do and perform any and all such acts and things for and on behalf of such holders of the Debentures, as may be necessary or advisable in the opinion of the Debenture Trustee, in order to have the respective claims of the Debenture Trustee and of the holders of the Debentures against the Corporation or its property allowed in any such proceeding, and to receive payment of or on account of such claims; provided, however, that subject to Section 8.3, nothing contained in this Indenture shall be deemed to give to the Debenture Trustee, unless so authorized by Extraordinary Resolution, any right to accept or consent to any plan of reorganization or otherwise by action of any character in such proceeding to waive or change in any way any right of any Debentureholder.

 

The Debenture Trustee shall also have the power at any time and from time to time to institute and to maintain such suits and proceedings as it may be advised shall be necessary or advisable to preserve and protect its interests and the interests of the Debentureholders.

 

All rights of action hereunder may be enforced by the Debenture Trustee without the possession of any of the Debentures or the production thereof on the trial or other proceedings relating thereto. Any such suit or proceeding instituted by the Debenture Trustee shall be brought in the name of the Debenture Trustee as trustee of an express trust, and any recovery of judgment shall be for the rateable benefit of the holders of the Debentures subject to the provisions of this Indenture. In any proceeding brought by the Debenture Trustee (and also any proceeding in which a declaratory judgment of a court may be sought as to the interpretation or construction of any provision of this Indenture, to which the Debenture Trustee shall be a party) the Debenture Trustee shall be held to represent all the holders of the Debentures, and it shall not be necessary to make any holders of the Debentures parties to any such proceeding.

 

8.5 No Suits by Debentureholders

 

No holder of any Debenture shall have any right to institute any action, suit or proceeding at law or in equity for the purpose of enforcing payment of the principal of or interest on the Debentures or for the execution of any trust or power hereunder or for the appointment of a liquidator or receiver or for a receiving order under the Bankruptcy and Insolvency Act (Canada) or to have the Corporation wound up or to file or prove a claim in any liquidation or bankruptcy proceeding or for any other remedy hereunder, unless: (a) such holder shall previously have given to the Debenture Trustee written notice of the happening of an Event of Default hereunder; and (b) the Debentureholders by Extraordinary Resolution or by written instrument signed by the holders of at least 25% in principal amount of the Debentures then outstanding (or by holders of Global Debentures on instructions of Beneficial Holders through one or more Depository Participants of not less than 25% in principal amount of the Debentures then outstanding) shall have made a request to the Debenture Trustee and the Debenture Trustee shall have been afforded reasonable opportunity either itself to proceed to exercise the powers hereinbefore granted or to institute an action, suit or proceeding in its name for such purpose; and (c) the Debentureholders or any of them shall have furnished to the Debenture Trustee, when so requested by the Debenture Trustee, sufficient funds and security and indemnity satisfactory to it against the costs, expenses and liabilities to be incurred therein or thereby; and (d) the Debenture Trustee shall have failed to act within a reasonable time after such notification, request and offer of indemnity and such notification, request and offer of indemnity are hereby declared in every such case, at the option

 

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of the Debenture Trustee, to be conditions precedent to any such proceeding or for any other remedy hereunder by or on behalf of the holder of any Debentures.

 

8.6 Application of Monies by Debenture Trustee

 

(a) Except as herein otherwise expressly provided, any monies received by the Debenture Trustee from the Corporation pursuant to the foregoing provisions of this Article 8, or as a result of legal or other proceedings or from any trustee in bankruptcy or liquidator of the Corporation, shall be applied, together with any other monies in the hands of the Debenture Trustee available for such purpose, as follows:

 

  (i) first, in payment or in reimbursement to the Debenture Trustee of its compensation, costs, charges, expenses, borrowings, advances or other monies furnished or provided by or at the instance of the Debenture Trustee in or about the execution of its trusts under, or otherwise in relation to, this Indenture, with interest thereon as herein provided;

 

  (ii) second, but subject as hereinafter in this Section 8.6 provided, in payment, rateably and proportionately to the holders of Debentures, of the principal of and premium (if any) and accrued and unpaid interest and interest on amounts in default on the Debentures which shall then be outstanding in the priority of principal first and then premium and then accrued and unpaid interest and interest on amounts in default unless otherwise directed by Extraordinary Resolution and in that case in such order or priority as between principal, premium (if any) and interest as may be directed by such resolution; and

 

  (iii) third, in payment of the surplus, if any, of such monies to the Corporation or its assigns;

 

provided, however, that no payment shall be made pursuant to clause (ii) above in respect of the principal, premium or interest on any Debenture held, directly or indirectly, by or for the benefit of the Corporation or any Subsidiary (other than any Debenture pledged for value and in good faith to a person other than the Corporation or any Subsidiary but only to the extent of such person’s interest therein) except subject to the prior payment in full of the principal, premium (if any) and interest (if any) on all Debentures which are not so held.

 

(b) The Debenture Trustee shall not be bound to apply or make any partial or interim payment of any monies coming into its hands if the amount so received by it, after reserving thereout such amount as the Debenture Trustee may think necessary to provide for the payments mentioned in Section 8.6(a), is insufficient to make a distribution of at least 2% of the aggregate principal amount of the outstanding Debentures, but it may retain the money so received by it and invest or deposit the same as provided in Section 14.9 until the money or the investments representing the same, with the income derived therefrom, together with any other monies for the time being under its control shall be sufficient for the said purpose or until it shall consider it advisable to apply the same in the manner hereinbefore set forth. The foregoing shall, however, not apply to a final payment in distribution hereunder.

 

8.7 Notice of Payment by Debenture Trustee

 

Not less than 15 days notice shall be given in the manner provided in Section 13.2 by the Debenture Trustee to the Debentureholders of any payment to be made under this Article 8. Such notice shall state the time when and place where such payment is to be made and also the liability under this Indenture to which it is to be applied. After the day so fixed, unless payment shall have been duly demanded and have been refused, the Debentureholders will be entitled to interest only on the balance (if any) of the principal monies, premium (if any) and interest due (if any) to them, respectively, on the Debentures, after deduction of the respective amounts payable in respect thereof on the day so fixed.

 

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8.8 Debenture Trustee May Demand Production of Debentures

 

The Debenture Trustee shall have the right to demand production of the Debentures in respect of which any payment of principal, interest or premium required by this Article 8 is made and may cause to be endorsed on the same a memorandum of the amount so paid and the date of payment, but the Debenture Trustee may, in its discretion, dispense with such production and endorsement, upon such indemnity being given to it and to the Corporation as the Debenture Trustee shall deem sufficient.

 

8.9 Remedies Cumulative

 

No remedy herein conferred upon or reserved to the Debenture Trustee, or upon or to the holders of Debentures is intended to be exclusive of any other remedy, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now existing or hereafter to exist by law or by statute.

 

8.10 Judgment Against the Corporation

 

The Corporation covenants and agrees with the Debenture Trustee that, in case of any judicial or other proceedings to enforce the rights of the Debentureholders, judgment may be rendered against it in favour of the Debentureholders or in favour of the Debenture Trustee, as trustee for the Debentureholders, for any amount which may remain due in respect of the Debentures and premium (if any) and the interest thereon and any other monies owing hereunder.

 

8.11 Immunity of Debenture Trustee and Others

 

The Debentureholders and the Debenture Trustee hereby waive and release any right, cause of action or remedy now or hereafter existing in any jurisdiction against any past, present or future officer or director of the Corporation or holder of Common Shares of the Corporation or of any successor for the payment of the principal of or premium or interest on any of the Debentures or on any covenant, agreement, representation or warranty by the Corporation herein or in the Debentures contained.

 

ARTICLE 9

SATISFACTION AND DISCHARGE

 

9.1 Cancellation and Destruction

 

All Debentures shall, forthwith after payment in full thereof, be delivered to the Debenture Trustee for cancellation. All Debentures cancelled or required to be cancelled under this or any other provision of this Indenture shall be destroyed by the Debenture Trustee and, if required by the Corporation, the Debenture Trustee shall furnish to it a destruction certificate setting out the designating numbers of the Debentures so destroyed.

 

9.2 Non-Presentation of Debentures

 

In case the holder of any Debenture shall fail to present the same for payment on the date on which the principal, premium (if any) or the interest thereon or represented thereby becomes payable either at maturity or otherwise or shall not accept payment on account thereof and give such receipt therefor, if any, as the Debenture Trustee may require:

 

(a) the Corporation shall be entitled to pay or deliver to the Debenture Trustee and direct it to set aside; or

 

(b) in respect of monies in the hands of the Debenture Trustee which may or should be applied to the payment of the Debentures, the Corporation shall be entitled to direct the Debenture Trustee to set aside; or

 

(c) if the redemption was pursuant to notice given by the Debenture Trustee, the Debenture Trustee may itself set aside;

 

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the principal, premium (if any) or the interest, as the case may be, in trust to be paid to the holder of such Debenture upon due presentation or surrender thereof in accordance with the provisions of this Indenture; and thereupon the principal, premium (if any) or the interest payable on or represented by each Debenture in respect whereof such monies have been set aside shall be deemed to have been paid and the holder thereof shall thereafter have no right in respect thereof except that of receiving payment of the monies so set aside by the Debenture Trustee upon due presentation and surrender thereof, subject always to the provisions of Section 9.3.

 

9.3 Repayment of Unclaimed Monies

 

Subject to applicable law, any monies set aside under Section 9.2 and not claimed by and paid to holders of Debentures as provided in Section 9.2 within six years after the date of such setting aside shall be repaid to the Corporation by the Debenture Trustee and thereupon the Debenture Trustee shall be released from all further liability with respect to such monies and thereafter the holders of the Debentures in respect of which such monies were so repaid to the Corporation shall have no rights in respect thereof except to obtain payment and delivery of the monies from the Corporation subject to any limitation provided by the laws of the Province of Alberta. Notwithstanding the foregoing, the Debenture Trustee will pay any remaining funds prior to the expiry of six years after the setting aside described in Section 9.2 to the Corporation upon receipt from the Corporation, or one of its Subsidiaries, of an uncontested letter of credit from a Schedule A Canadian chartered bank in an amount equal to or in excess of the amount of the remaining funds. If the remaining funds are paid to the Corporation prior to the expiry of six years after such setting aside, the Corporation shall reimburse the Debenture Trustee for any amounts so set aside which are required to be paid by the Debenture Trustee to a holder of a Debenture after the date of such payment of the remaining funds to the Corporation but prior to six years after such setting aside.

 

9.4 Discharge

 

The Debenture Trustee shall at the written request of the Corporation release and discharge this Indenture and execute and deliver such instruments as it shall be advised by Counsel are requisite for that purpose and to release the Corporation from its covenants herein contained (other than the provisions relating to the indemnification of the Debenture Trustee), upon proof being given to the reasonable satisfaction of the Debenture Trustee that the principal and premium (if any) of and interest (including interest on amounts in default, if any), on all the Debentures and all other monies payable hereunder have been paid or satisfied or that all the Debentures having matured or having been duly called for redemption, payment of the principal of and interest (including interest on amounts in default, if any) on such Debentures and of all other monies payable hereunder has been duly and effectually provided for in accordance with the provisions hereof.

 

9.5 Satisfaction

 

(a) The Corporation shall be deemed to have fully paid, satisfied and discharged all of the outstanding Debentures of any series and the Debenture Trustee, at the expense of the Corporation, shall execute and deliver proper instruments acknowledging the full payment, satisfaction and discharge of such Debentures, when, with respect to all of the outstanding Debentures or all of the outstanding Debentures of any series, as applicable, either:

 

  (i) the Corporation has deposited or caused to be deposited with the Debenture Trustee as trust funds or property in trust for the purpose of making payment on such Debentures, an amount in money sufficient to pay, satisfy and discharge the entire amount of principal, premium, if any, and interest, if any, to maturity or any repayment date or Redemption Dates, as the case may be, of such Debentures; or

 

  (ii) the Corporation has deposited or caused to be deposited with the Debenture Trustee as trust property in trust for the purpose of making payment on such Debentures:

 

  (A) if the Debentures are issued in Canadian dollars, such amount in Canadian dollars of direct obligations of, or obligations the principal and interest of which are guaranteed by, the Government of Canada or Common Shares, if applicable; or

 

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  (B) if the Debentures are issued in a currency or currency unit other than Canadian dollars, cash in the currency or currency unit in which the Debentures are payable and/or such amount in such currency or currency unit of direct obligations of, or obligations the principal and interest of which are guaranteed by, the Government of Canada or the government that issued the currency or currency unit in which the Debentures are payable;

 

as will, together with the income to accrue thereon and reinvestment thereof, be sufficient to pay and discharge the entire amount of principal and accrued and unpaid interest to maturity or any repayment date, as the case may be, of all such Debentures;

 

and in either event:

 

  (iii) the Corporation has paid, caused to be paid or made provisions to the satisfaction of the Debenture Trustee for the payment of all other sums payable with respect to all of such Debentures (together with all applicable expenses of the Debenture Trustee in connection with the payment of such Debentures); and

 

  (iv) the Corporation has delivered to the Debenture Trustee an Officer’s Certificate stating that all conditions precedent herein provided relating to the payment, satisfaction and discharge of all such Debentures have been complied with.

 

Any deposits with the Debenture Trustee referred to in this Section 9.5 shall be irrevocable, subject to Section 9.6, and shall be made under the terms of an escrow and/or trust agreement in form and substance satisfactory to the Debenture Trustee and which provides for the due and punctual payment of the principal of, and interest and premium, if any, on the Debentures being satisfied.

 

(b) Upon the satisfaction of the conditions set forth in this Section 9.5 with respect to all the outstanding Debentures, or all the outstanding Debentures of any series, as applicable, the terms and conditions of the Debentures, including the terms and conditions with respect thereto set forth in this Indenture (other than those contained in Articles 2 and 4 and the provisions of Article 1 pertaining to Articles 2 and 4) shall no longer be binding upon or applicable to the Corporation.

 

(c) Any funds or obligations deposited with the Debenture Trustee pursuant to this Section 9.5 shall be denominated in the currency or denomination of the Debentures in respect of which such deposit is made.

 

(d) If the Debenture Trustee is unable to apply any money or securities in accordance with this Section 9.5 by reason of any legal proceeding or any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Corporation’s obligations under this Indenture and the affected Debentures shall be revived and reinstated as though no money or securities had been deposited pursuant to this Section 9.5 until such time as the Debenture Trustee is permitted to apply all such money or securities in accordance with this Section 9.5, provided that if the Corporation has made any payment in respect of principal, premium or interest on Debentures or, as applicable, other amounts because of the reinstatement of its obligations, the Corporation shall be subrogated to the rights of the holders of such Debentures to receive such payment from the money or securities held by the Debenture Trustee.

 

9.6 Continuance of Rights, Duties and Obligations

 

Where trust funds or trust property have been deposited pursuant to Section 9.5, the holders of Debentures and the Corporation shall continue to have and be subject to their respective rights, duties and obligations under Articles 2 and 4.

 

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ARTICLE 10

SUCCESSORS

 

10.1 Restrictions on Amalgamation, Merger and Sale of Certain Assets, etc.

 

Subject to the provisions of Article 11, the Corporation shall not enter into any transaction or series of transactions whereby all or substantially all of its undertaking, property or assets would become the property of any other Person (herein called a “ Successor ”) whether by way of reorganization, consolidation, amalgamation, arrangement, merger, transfer, sale or otherwise, unless:

 

(a) prior to or contemporaneously with the consummation of such transaction the Corporation and the Successor shall have executed such instruments and done such things as, in the opinion of Counsel, are necessary or advisable to establish that upon the consummation of such transaction:

 

  (i) the Successor will have assumed all the covenants and obligations of the Corporation under this Indenture in respect of the Debentures;

 

  (ii) the Debentures will be valid and binding obligations of the Successor entitling the holders thereof, as against the Successor, to all the rights of Debentureholders under this Indenture; and

 

  (iii) in the case of an entity organized otherwise than under the laws of the Province of Alberta, shall attorn to the jurisdiction of the courts of the Province of Alberta;

 

(b) such transaction, in the opinion of Counsel, shall be on such terms as to substantially preserve and not impair any of the rights and powers of the Debenture Trustee or of the Debentureholders hereunder; and

 

(c) no condition or event shall exist as to the Corporation (at the time of such transaction) or the Successor (immediately after such transaction) and after giving full effect thereto or immediately after the Successor shall become liable to pay the principal monies, premium, if any, interest and other monies due or which may become due hereunder, which constitutes or would constitute an Event of Default hereunder.

 

10.2 Vesting of Powers in Successor

 

Whenever the conditions of Section 10.1 shall have been duly observed and performed, any Successor formed by or resulting from such transaction shall succeed to, and be substituted for, and may exercise every right and power of the Corporation under this Indenture with the same effect as though the Successor had been named as the Corporation herein and thereafter, except in the case of a lease or other similar disposition of property to the Successor, the Corporation shall be relieved of all obligations and covenants under this Indenture and the Debentures forthwith upon the Corporation delivering to the Debenture Trustee an opinion of Counsel to the effect that the transaction shall not result in any material adverse tax consequences to the Corporation or the Successor. The Debenture Trustee will, at the expense of the Successor, execute any documents which it may be advised by Counsel are necessary or advisable for effecting or evidencing such release and discharge.

 

ARTICLE 11

COMPULSORY ACQUISITION

 

11.1 Definitions

 

In this Article:

 

(a) Affiliate ” and “ Associate ” shall have their respective meanings set forth in the Securities Act (Alberta);

 

(b) Dissenting Debentureholders ” means a Debentureholder who does not accept an Offer referred to in Section 11.2 and includes any assignee of the Debenture of a Debentureholder to whom such an Offer is made, whether or not such assignee is recognized under this Indenture;

 

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(c) Offer ” means an offer to acquire all of the outstanding Debentures (other than Debentures held by or on behalf of the Offeror or an affiliate or Associate of the Offeror);

 

(d) offer to acquire ” includes an acceptance of an offer to sell;

 

(e) Offeror ” means a person, or two or more persons acting jointly or in concert, who make an Offer to acquire Debentures;

 

(f) Offeror’s Notice ” means the notice described in Section 11.3; and

 

(g) Offeror’s Debentures ” means Debentures beneficially owned, or over which control or direction is exercised, on the date of an Offer by the Offeror, any Affiliate or Associate of the Offeror or any person or company acting jointly or in concert with the Offeror.

 

11.2 Offer for Debentures

 

If an Offer is made and:

 

(a) within the time provided in the Offer for its acceptance or within 45 days after the date the Offer is made, whichever period is the shorter, the Offer is accepted by Debentureholders representing at least 90% of the outstanding principal amount of the Debentures, other than the Offeror’s Debentures;

 

(b) the Offeror is unconditionally bound to take up and pay for, or has taken up and paid for the Debentures of the Debentureholders who accepted the Offer; and

 

(c) the Offeror complies with Sections 11.3 and 11.5;

 

then the Offeror is entitled to acquire, and the Dissenting Debentureholders are required to sell to the Offeror, the Debentures held by the Dissenting Debentureholders for the same consideration per Debenture payable or paid, as the case may be, under the Offer on the terms and subject to the conditions set forth in this Article 11.

 

11.3 Offeror’s Notice to Dissenting Shareholders

 

Where an Offeror is entitled to acquire Debentures held by Dissenting Debentureholders pursuant to Section 11.2 and the Offeror wishes to exercise such right, the Offeror shall send by registered mail within 10 days after the date of termination of the Offer a notice (the “ Offeror’s Notice ”) to the Debenture Trustee and to each Dissenting Debentureholder stating that:

 

(a) Debentureholders holding at least 90% of the principal amount of all outstanding Debentures, other than Offeror’s Debentures, have accepted the Offer;

 

(b) the Offeror is unconditionally bound to take up and pay for, or has taken up and paid for, the Debentures of the Debentureholders who accepted the Offer;

 

(c) Dissenting Debentureholders must transfer their respective Debentures to the Offeror on the terms on which the Offeror acquired the Debentures of the Debentureholders who accepted the Offer within 21 days after the date of the sending of the Offeror’s Notice; and

 

(d) Dissenting Debentureholders must send their respective Debenture certificate(s) to the Debenture Trustee within 21 days after the date of the sending of the Offeror’s Notice.

 

11.4 Delivery of Debenture Certificates

 

A Dissenting Debentureholder to whom an Offeror’s Notice is sent pursuant to Section 11.3 shall, within 21 days after the sending of the Offeror’s Notice, if applicable, send his or her Debenture certificate(s) to the

 

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Debenture Trustee duly endorsed for transfer or, if the Debentures are represented by a Global Certificate, cause the Depository to be instructed through one or more Depository Participants to facilitate the transfer of the Debentures beneficially held by such holder.

 

11.5 Payment of Consideration to Debenture Trustee

 

Within 21 days after the Offeror sends an Offeror’s Notice pursuant to Section 11.3, the Offeror shall pay or transfer to the Debenture Trustee, or to such other person as the Debenture Trustee may direct, the cash or other consideration that is payable to Dissenting Debentureholders pursuant to Section 11.2.

 

11.6 Consideration to be held in Trust

 

The Debenture Trustee, or the person directed by the Debenture Trustee, shall hold in trust for the Dissenting Debentureholders the cash or other consideration they or it receives under Section 11.5. The Debenture Trustee, or such persons, shall deposit cash in a separate account in a Canadian chartered bank, or other body corporate, any of whose deposits are insured by the Canada Deposit Insurance Corporation, and shall place other consideration in the custody of a Canadian chartered bank or such other body corporate. The Debenture Trustee or such persons may also deposit cash in a segregated trust account with the Debenture Trustee.

 

11.7 Completion of Transfer of Debentures to Offeror

 

Within 30 days after the date of the sending of an Offeror’s Notice pursuant to Section 11.3, the Debenture Trustee, if the Offeror has complied with Section 11.5, shall:

 

(a) do all acts and things and execute and cause to be executed all instruments as in the Debenture Trustee’s opinion may be necessary or desirable to cause the transfer of the Debentures of the Dissenting Debentureholders to the Offeror;

 

(b) send to each Dissenting Debentureholder who has complied with Section 11.4 the consideration to which such Dissenting Debentureholder is entitled under this Article 11; and

 

(c) send to each Dissenting Debentureholder who has not complied with Section 11.4 a notice stating that:

 

  (i) his or her Debentures have been transferred to the Offeror;

 

  (ii) the Debenture Trustee or some other person designated in such notice are holding in trust the consideration for such Debentures; and

 

  (iii) the Debenture Trustee, or such other person, will send the consideration to such Dissenting Debentureholder as soon as possible after receiving such Dissenting Debentureholder’s Debenture certificate(s) or such other documents as the Debenture Trustee or such other person may require in lieu thereof;

 

and the Debenture Trustee is hereby appointed the agent and attorney of the Dissenting Debentureholders for the purposes of giving effect to the foregoing provisions.

 

11.8 Communication of Offer to Corporation

 

An Offeror cannot make an Offer for Debentures unless, concurrent with the communication of the Offer to any Debentureholder, a copy of the Offer is provided to the Corporation.

 

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ARTICLE 12

MEETINGS OF DEBENTUREHOLDERS

 

12.1 Right to Convene Meeting

 

The Debenture Trustee or the Corporation may at any time and from time to time, and the Debenture Trustee shall, on receipt of a written request of the Corporation or a written request signed by the holders of not less than 25% of the principal amount of the Debentures then outstanding (or by holders of Global Debentures on instructions of Beneficial Holders through one or more Depository Participants of not less than 25% in principal amount of the Debentures then outstanding) and upon receiving funding and being indemnified to its reasonable satisfaction by the Corporation or by the Debentureholders signing such request against the costs which may be incurred in connection with the calling and holding of such meeting, convene a meeting of the Debentureholders. In the event of the Debenture Trustee failing, within 30 days after receipt of any such request and such funding of indemnity, to give notice convening a meeting, the Corporation or such Debentureholders, as the case may be, may convene such meeting. Every such meeting shall be held in the City of Toronto, or Houston, Texas, USA, or at such other place as may be approved or determined by the Debenture Trustee.

 

12.2 Notice of Meetings

 

(a) At least 21 days notice of any meeting shall be given to the Debentureholders in the manner provided in Section 13.2 and a copy of such notice shall be sent by post to the Debenture Trustee, unless the meeting has been called by it. Such notice shall state the time when and the place where the meeting is to be held and shall state briefly the general nature of the business to be transacted thereat and it shall not be necessary for any such notice to set out the terms of any resolution to be proposed or any of the provisions of this Article. The accidental omission to give notice of a meeting to any holder of Debentures shall not invalidate any resolution passed at any such meeting. A holder may waive notice of a meeting either before or after the meeting.

 

(b) If the business to be transacted at any meeting by Extraordinary Resolution or otherwise, or any action to be taken or power exercised by instrument in writing under Section 12.15, especially affects the rights of holders of Debentures of one or more series in a manner or to an extent differing in any material way from that in or to which the rights of holders of Debentures of any other series are affected (determined as provided in Sections 12.2(c) and (d)), then:

 

  (i) a reference to such fact, indicating each series of Debentures in the opinion of the Debenture Trustee so especially affected (hereinafter referred to as the “ especially affected series ”) shall be made in the notice of such meeting, and in any such case the meeting shall be and be deemed to be and is herein referred to as a “ Serial Meeting ”; and

 

  (ii) the holders of Debentures of an especially affected series shall not be bound by any action taken at a Serial Meeting or by instrument in writing under Section 12.15 unless in addition to compliance with the other provisions of this Article 12:

 

  (A) at such Serial Meeting: (I) there are Debentureholders present in person or by proxy and representing at least 25% in principal amount of the Debentures then outstanding of such series, subject to the provisions of this Article 13 as to quorum at adjourned meetings; and (II) the resolution is passed by the affirmative vote of the holders of more than 50% (or in the case of an Extraordinary Resolution not less than 66 2/3%) of the principal amount of the Debentures of such series then outstanding voted on the resolution; or

 

  (B) in the case of action taken or power exercised by instrument in writing under Section 12.15, such instrument is signed in one or more counterparts by the holders of not less than 66 2/3% in principal amount of the Debentures of such series then outstanding.

 

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(c) Subject to Section 12.2(d), the determination as to whether any business to be transacted at a meeting of Debentureholders, or any action to be taken or power to be exercised by instrument in writing under Section 12.15, especially affects the rights of the Debentureholders of one or more series in a manner or to an extent differing in any material way from that in or to which it affects the rights of Debentureholders of any other series (and is therefore an especially affected series) shall be determined by an opinion of Counsel, which shall be binding on all Debentureholders, the Debenture Trustee and the Corporation for all purposes hereof.

 

(d) A proposal:

 

  (i) to extend the maturity of Debentures of any particular series or to reduce the principal amount thereof, the rate of interest or redemption premium thereon or to impair any conversion right thereof;

 

  (ii) to modify or terminate any covenant or agreement which by its terms is effective only so long as Debentures of a particular series are outstanding; or

 

  (iii) to reduce with respect to Debentureholders of any particular series any percentage stated in this Section 12.2 or Sections 12.4, 12.12 and 12.15;

 

shall be deemed to especially affect the rights of the Debentureholders of such series in a manner differing in a material way from that in which it affects the rights of holders of Debentures of any other series, whether or not a similar extension, reduction, modification or termination is proposed with respect to Debentures of any or all other series.

 

12.3 Chairman

 

Some person, who need not be a Debentureholder, nominated in writing by the Debenture Trustee shall be chairman of the meeting and if no person is so nominated, or if the person so nominated is not present within 15 minutes from the time fixed for the holding of the meeting, a majority of the Debentureholders present in person or by proxy shall choose some person present to be chairman.

 

12.4 Quorum

 

Subject to the provisions of Section 12.12, at any meeting of the Debentureholders a quorum shall consist of Debentureholders present in person or by proxy and representing at least 25% in principal amount of the outstanding Debentures and, if the meeting is a Serial Meeting, at least 25% of the Debentures then outstanding of each especially affected series. If a quorum of the Debentureholders shall not be present within 30 minutes from the time fixed for holding any meeting, the meeting, if summoned by the Debentureholders or pursuant to a request of the Debentureholders, shall be dissolved, but in any other case the meeting shall be adjourned to the same day in the next week (unless such day is not a Business Day in which case it shall be adjourned to the next following Business Day thereafter) at the same time and place and no notice shall be required to be given in respect of such adjourned meeting. At the adjourned meeting, the Debentureholders present in person or by proxy shall, subject to the provisions of Section 12.12, constitute a quorum and may transact the business for which the meeting was originally convened notwithstanding that they may not represent 25% of the principal amount of the outstanding Debentures or of the Debentures then outstanding of each especially affected series. Any business may be brought before or dealt with at an adjourned meeting, which might have been brought before or dealt with at the original meeting in accordance with the notice calling the same. No business shall be transacted at any meeting unless the required quorum is present at the commencement of business.

 

12.5 Power to Adjourn

 

The chairman of any meeting at which a quorum of the Debentureholders is present may, with the consent of the holders of a majority in principal amount of the Debentures represented thereat, adjourn any such meeting and no notice of such adjournment need be given except such notice, if any, as the meeting may prescribe.

 

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12.6 Show of Hands

 

Every question submitted to a meeting shall, subject to Section 12.7, be decided in the first place by a majority of the votes given on a show of hands except that votes on Extraordinary Resolutions shall be given in the manner hereinafter provided. At any such meeting, unless a poll is duly demanded as herein provided, a declaration by the chairman that a resolution has been carried or carried unanimously or by a particular majority or lost or not carried by a particular majority shall be conclusive evidence of the fact. The chairman of any meeting shall be entitled, both on a show of hands and on a poll, to vote in respect of the Debentures, if any, held by him.

 

12.7 Poll

 

On every Extraordinary Resolution, and on any other question submitted to a meeting when demanded by the chairman or by one or more Debentureholders or proxies for Debentureholders, a poll shall be taken in such manner and either at once or after an adjournment as the chairman shall direct. Questions other than Extraordinary Resolutions shall, if a poll be taken, be decided by the votes of the holders of a majority in principal amount of the Debentures and of each especially affected series, if applicable, represented at the meeting and voted on the poll.

 

12.8 Voting

 

On a show of hands every person who is present and entitled to vote, whether as a Debentureholder or as proxy for one or more Debentureholders or both, shall have one vote. On a poll each Debentureholder present in person or represented by a proxy duly appointed by an instrument in writing shall be entitled to one vote in respect of each US$1,000 principal amount of Debentures of which he shall then be the holder. In the case of any Debenture denominated in a currency or currency unit other than US dollars, the principal amount thereof for these purposes shall be computed in US dollars in accordance with Section 1.8 on the Business Day next preceding the meeting. Any fractional amounts resulting from such conversion shall be rounded to the nearest US$100. A proxy need not be a Debentureholder. In the case of joint holders of a Debenture, any one of them present in person or by proxy at the meeting may vote in the absence of the other or others but in case more than one of them be present in person or by proxy, they shall vote together in respect of the Debentures of which they are joint holders.

 

12.9 Proxies

 

A Debentureholder may be present and vote at any meeting of Debentureholders by an authorized representative. The Corporation (in case it convenes the meeting) or the Debenture Trustee (in any other case) for the purpose of enabling the Debentureholders to be present and vote at any meeting without producing their Debentures, and of enabling them to be present and vote at any such meeting by proxy and of lodging instruments appointing such proxies at some place other than the place where the meeting is to be held, may from time to time make and vary such regulations as it shall think fit providing for and governing any or all of the following matters:

 

(a) the form of the instrument appointing a proxy, which shall be in writing, and the manner in which the same shall be executed and the production of the authority of any person signing on behalf of a Debentureholder;

 

(b) the deposit of instruments appointing proxies at such place as the Debenture Trustee, the Corporation or the Debentureholder convening the meeting, as the case may be, may, in the notice convening the meeting, direct and the time, if any, before the holding of the meeting or any adjournment thereof by which the same must be deposited;

 

(c) the deposit of instruments appointing proxies at some approved place or places other than the place at which the meeting is to be held and enabling particulars of such instruments appointing proxies to be mailed, faxed, or sent by other electronic communication before the meeting to the Corporation or to the Debenture Trustee at the place where the same is to be held and for the voting of proxies so deposited as though the instruments themselves were produced at the meeting; and

 

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(d) generally for the calling of meetings of the Debentureholders and the conduct of business thereat.

 

Any regulations so made shall be binding and effective and the votes given in accordance therewith shall be valid and shall be counted. Save as such regulations may provide, the only persons who shall be recognized at any meeting as the holders of any Debentures, or as entitled to vote or be present at the meeting in respect thereof, shall be Debentureholders and persons whom Debentureholders have by instrument in writing duly appointed as their proxies.

 

12.10  Persons Entitled to Attend Meetings

 

The Corporation and the Debenture Trustee, by their respective officers and directors and employees, the Auditors of the Corporation and the legal advisers of the Corporation, the Debenture Trustee or any Debentureholder may attend any meeting of the Debentureholders, but shall have no vote as such.

 

12.11  Powers Exercisable by Extraordinary Resolution

 

In addition to the powers conferred upon them by any other provisions of this Indenture or by law, a meeting of the Debentureholders shall have the following powers exercisable from time to time by Extraordinary Resolution, subject in the case of the matters in paragraphs (a), (b), (c), (d) and (l) to receipt of the prior approval of the Toronto Stock Exchange or such other exchange on which the Debentures are then listed:

 

(a) power to authorize the Debenture Trustee to grant extensions of time for payment of any principal, premium or interest on the Debentures, whether or not the principal, premium, or interest, the payment of which is extended, is at the time due or overdue;

 

(b) power to sanction any modification, abrogation, alteration, compromise or arrangement of the rights of the Debentureholders or the Debenture Trustee against the Corporation (subject to the consent of the Debenture Trustee), or against its property, whether such rights arise under this Indenture or the Debentures or otherwise;

 

(c) power to assent to any modification of or change in or addition to or omission from the provisions contained in this Indenture or any Debenture which shall be agreed to by the Corporation and to authorize the Debenture Trustee to concur in and execute any indenture supplemental hereto embodying any modification, change, addition or omission;

 

(d) power to sanction any scheme for the reconstruction, reorganization or recapitalization of the Corporation or for the consolidation, amalgamation or merger of the Corporation with any other Person or for the sale, leasing, transfer or other disposition of all or substantially all of the undertaking, property and assets of the Corporation or any part thereof, provided that no such sanction shall be necessary in respect of any such transaction if the provisions of Section 10.1 shall have been complied with;

 

(e) power to direct or authorize the Debenture Trustee to exercise any power, right, remedy or authority given to it by this Indenture in any manner specified in any such Extraordinary Resolution or to refrain from exercising any such power, right, remedy or authority;

 

(f) power to waive, and direct the Debenture Trustee to waive, any default hereunder and/or cancel any declaration made by the Debenture Trustee pursuant to Section 8.1 either unconditionally or upon any condition specified in such Extraordinary Resolution;

 

(g) power to restrain any Debentureholder from taking or instituting any suit, action or proceeding for the purpose of enforcing payment of the principal, premium or interest on the Debentures, or for the execution of any trust or power hereunder;

 

(h)

power to direct any Debentureholder who, as such, has brought any action, suit or proceeding to stay or discontinue or otherwise deal with the same upon payment, if the taking of such suit, action or proceeding

 

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shall have been permitted by Section 8.5, of the costs, charges and expenses reasonably and properly incurred by such Debentureholder in connection therewith;

 

(i) power to assent to any compromise or arrangement with any creditor or creditors or any class or classes of creditors, whether secured or otherwise, and with holders of any shares or other securities of the Corporation;

 

(j) power to appoint a committee with power and authority (subject to such limitations, if any, as may be prescribed in the resolution) to exercise, and to direct the Debenture Trustee to exercise, on behalf of the Debentureholders, such of the powers of the Debentureholders as are exercisable by Extraordinary Resolution or other resolution as shall be included in the resolution appointing the committee. The resolution making such appointment may provide for payment of the expenses and disbursements of and compensation to such committee. Such committee shall consist of such number of persons as shall be prescribed in the resolution appointing it and the members need not be themselves Debentureholders. Every such committee may elect its chairman and may make regulations respecting its quorum, the calling of its meetings, the filling of vacancies occurring in its number and its procedure generally. Such regulations may provide that the committee may act at a meeting at which a quorum is present or may act by minutes signed by the number of members thereof necessary to constitute a quorum. All acts of any such committee within the authority delegated to it shall be binding upon all Debentureholders. Neither the committee nor any member thereof shall be liable for any loss arising from or in connection with any action taken or omitted to be taken by them in good faith;

 

(k) power to remove the Debenture Trustee from office and to appoint a new Debenture Trustee or Debenture Trustees provided that no such removal shall be effective unless and until a new Debenture Trustee or Debenture Trustees shall have become bound by this Indenture, and the Corporation shall have consented to such new Debenture Trustee, such consent to not be unreasonably withheld;

 

(l) power to sanction the exchange of the Debentures for or the conversion thereof into shares, bonds, debentures or other securities or obligations of the Corporation or of any other Person formed or to be formed;

 

(m) power to authorize the distribution in specie of any shares or securities received pursuant to a transaction authorized under the provisions of Section 12.11(l); and

 

(n) power to amend, alter or repeal any Extraordinary Resolution previously passed or sanctioned by the Debentureholders or by any committee appointed pursuant to Section 12.11(j).

 

Notwithstanding the foregoing provisions of this Section 12.11 none of such provisions shall in any manner allow or permit any amendment, modification, abrogation or addition to the provisions of Article 5 which could reasonably be expected to detrimentally affect the rights, remedies or recourse of the priority of the Senior Creditors, nor shall any of such provisions of this Section 12.11 in any manner allow or permit any amendment, modification, abrogation or addition to the provisions of this Indenture which would be prejudicial to the rights, remedies and recourse hereunder of the Debenture Trustee on its own account.

 

Notwithstanding the foregoing provision of this Section 12.11, the Corporation and the Debenture Trustee may amend this Indenture or the Debentures for certain purposes, without the consent of the Debentureholders, including to (i) cure any ambiguity, defect or inconsistency, provided, however, that the amendment to cure any such ambiguity, defect or inconsistency does not materially adversely affect the rights of the Debentureholders; (ii) provide for the assumption by a successor of the Corporation’s or the Debenture Trustee’s obligations under this Indenture; (iii) make any change to comply with any applicable laws or requirements of any governmental authority relating to trust indentures; (iv) add to the Corporation’s covenants or the Corporation’s obligations under this Indenture for the protection of Debentureholders; or (v) make any other change that does not adversely affect the rights of Debentureholders.

 

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12.12  Meaning of “Extraordinary Resolution”

 

(a) The expression “ Extraordinary Resolution ” when used in this Indenture means, subject as hereinafter in this Article provided, a resolution proposed to be passed as an Extraordinary Resolution at a meeting of Debentureholders (including an adjourned meeting) duly convened for the purpose and held in accordance with the provisions of this Article at which the holders of not less than 25% of the principal amount of the Debentures then outstanding, and if the meeting is a Serial Meeting, at which holders of not less than 25% of the principal amount of the Debentures then outstanding of each especially affected series, are present in person or by proxy and passed by the favourable votes of the holders of not less than 66 2/3% of the principal amount of the Debentures, and if the meeting is a Serial Meeting by the affirmative vote of the holders of not less than 66 2/3% of each especially affected series, in each case present or represented by proxy at the meeting and voted upon on a poll on such resolution.

 

(b) If, at any such meeting, the holders of not less than 25% of the principal amount of the Debentures then outstanding and, if the meeting is a Serial Meeting, 25% of the principal amount of the Debentures then outstanding of each especially affected series, in each case are not present in person or by proxy within 30 minutes after the time appointed for the meeting, then the meeting, if convened by or on the requisition of Debentureholders, shall be dissolved but in any other case it shall stand adjourned to such date, being not less than 14 nor more than 60 days later, and to such place and time as may be appointed by the chairman. Not less than 10 days notice shall be given of the time and place of such adjourned meeting in the manner provided in Section 13.2. Such notice shall state that at the adjourned meeting the Debentureholders present in person or by proxy shall form a quorum. At the adjourned meeting the Debentureholders present in person or by proxy shall form a quorum and may transact the business for which the meeting was originally convened and a resolution proposed at such adjourned meeting and passed thereat by the affirmative vote of holders of not less than 66 2/3% of the principal amount of the Debentures and, if the meeting is a Serial Meeting, by the affirmative vote of the holders of not less than 66 2/3% of the principal amount of the Debentures of each especially affected series, in each case present or represented by proxy at the meeting voted upon on a poll shall be an Extraordinary Resolution within the meaning of this Indenture, notwithstanding that the holders of not less than 25% in principal amount of the Debentures then outstanding, and if the meeting is a Serial Meeting, holders of not less than 25% of the principal amount of the Debentures then outstanding of each especially affected series, are not present in person or by proxy at such adjourned meeting.

 

(c) Votes on an Extraordinary Resolution shall always be given on a poll and no demand for a poll on an Extraordinary Resolution shall be necessary.

 

12.13  Powers Cumulative

 

Any one or more of the powers in this Indenture stated to be exercisable by the Debentureholders by Extraordinary Resolution or otherwise may be exercised from time to time and the exercise of any one or more of such powers from time to time shall not be deemed to exhaust the rights of the Debentureholders to exercise the same or any other such power or powers thereafter from time to time.

 

12.14  Minutes

 

Minutes of all resolutions and proceedings at every meeting as aforesaid shall be made and duly entered in books to be from time to time provided for that purpose by the Debenture Trustee at the expense of the Corporation, and any such minutes as aforesaid, if signed by the chairman of the meeting at which such resolutions were passed or proceedings had, or by the chairman of the next succeeding meeting of the Debentureholders, shall be prima facie evidence of the matters therein stated and, until the contrary is proved, every such meeting, in respect of the proceedings of which minutes shall have been made, shall be deemed to have been duly held and convened, and all resolutions passed thereat or proceedings taken thereat to have been duly passed and taken.

 

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12.15  Instruments in Writing

 

All actions which may be taken and all powers that may be exercised by the Debentureholders at a meeting held as hereinbefore in this Article provided may also be taken and exercised by the holders of 66 2/3% of the principal amount of all the outstanding Debentures and, if the meeting at which such actions might be taken would be a Serial Meeting, by the holders of 66 2/3% of the principal amount of the Debentures then outstanding of each especially affected series, by an instrument in writing signed in one or more counterparts and the expression “ Extraordinary Resolution ” when used in this Indenture shall include an instrument so signed.

 

12.16  Binding Effect of Resolutions

 

Every resolution and every Extraordinary Resolution passed in accordance with the provisions of this Article at a meeting of Debentureholders shall be binding upon all the Debentureholders, whether present at or absent from such meeting, and every instrument in writing signed by Debentureholders in accordance with Section 12.15 shall be binding upon all the Debentureholders, whether signatories thereto or not, and each and every Debentureholder and the Debenture Trustee (subject to the provisions for its indemnity herein contained) shall be bound to give effect accordingly to every such resolution, Extraordinary Resolution and instrument in writing.

 

12.17  Evidence of Rights Of Debentureholders

 

(a) Any request, direction, notice, consent or other instrument that this Indenture may require or permit to be signed or executed by the Debentureholders may be in any number of concurrent instruments of similar tenor signed or executed by such Debentureholders.

 

(b) The Debenture Trustee may, in its discretion, require proof of execution in cases where it deems proof desirable and may accept such proof as it shall consider proper.

 

12.18  Concerning Serial Meetings

 

If in the opinion of Counsel any business to be transacted at any meeting, or any action to be taken or power to be exercised by instrument in writing under Section 12.15, does not adversely affect the rights of the holders of Debentures of one or more series, the provisions of this Article 12 shall apply as if the Debentures of such series were not outstanding and no notice of any such meeting need be given to the holders of Debentures of such series. Without limiting the generality of the foregoing, a proposal to modify or terminate any covenant or agreement that is effective only so long as Debentures of a particular series are outstanding shall be deemed not to adversely affect the rights of the holders of Debentures of any other series.

 

ARTICLE 13

NOTICES

 

13.1  Notice to Corporation

 

Any notice to the Corporation under the provisions of this Indenture shall be valid and effective if delivered to the Corporation at: 2480 W Campus Drive, Building C, Mt. Pleasant, Michigan, 48858, or if given by registered letter, postage prepaid, to such offices and so addressed and if mailed, shall be deemed to have been effectively given three days following the mailing thereof. The Corporation may from time to time notify the Debenture Trustee in writing of a change of address which thereafter, until changed by like notice, shall be the address of the Corporation for all purposes of this Indenture.

 

If by reason of any interruption of mail service, actual or threatened, any notice to be given to the Corporation would reasonably be unlikely to reach its destination by the time notice by mail is deemed to have been given pursuant to this Section 13.1, such notice shall be valid and effective only if delivered at the appropriate address in accordance with this Section 13.1

 

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13.2 Notice to Debentureholders

 

All notices to be given hereunder with respect to the Debentures shall be deemed to be validly given to the holders thereof if sent by first class mail, postage prepaid, by letter or circular addressed to such holders at their post office addresses appearing in any of the registers hereinbefore mentioned and shall be deemed to have been effectively given three days following the day of mailing. Accidental error or omission in giving notice or accidental failure to mail notice to any Debentureholder or the inability of the Corporation to give or mail any notice due to anything beyond the reasonable control of the Corporation shall not invalidate any action or proceeding founded thereon.

 

If any notice given in accordance with the foregoing paragraph would be unlikely to reach the Debentureholders to whom it is addressed in the ordinary course of post by reason of an interruption in mail service, whether at the place of dispatch or receipt or both, the Corporation shall give such notice by publication at least once in the City of Calgary (or in such of those cities as, in the opinion of the Debenture Trustee, is sufficient in the particular circumstances), each such publication to be made in a daily newspaper of general circulation in the designated city.

 

Any notice given to Debentureholders by publication shall be deemed to have been given on the day on which publication shall have been effected at least once in each of the newspapers in which publication was required.

 

All notices with respect to any Debenture may be given to whichever one of the holders thereof (if more than one) is named first in the registers hereinbefore mentioned, and any notice so given shall be sufficient notice to all holders of any persons interested in such Debenture.

 

13.3 Notice to Debenture Trustee

 

Any notice to the Debenture Trustee under the provisions of this Indenture shall be valid and effective if delivered to the Debenture Trustee at its principal office in the City of Calgary, at the following address: CIBC Mellon Trust Company, 600, 333 – 7 th Avenue S.W., Calgary, Alberta, T2P 2Z1, Attention: Robert Inkster, Facsimile Number: (403) 264-2100 or if given by registered letter, postage prepaid, to such office and so addressed and, if mailed, shall be deemed to have been effectively given three days following the mailing thereof. The Debenture Trustee may from time to time notify the Corporation in writing of a change of address which thereafter, until by like notice shall be the address of the Debenture Trustee to receive notices from the Corporation.

 

13.4 Mail Service Interruption

 

If by reason of any interruption of mail service, actual or threatened, any notice to be given to the Debenture Trustee would reasonably be unlikely to reach its destination by the time notice by mail is deemed to have been given pursuant to Section 13.3, such notice shall be valid and effective only if delivered at the appropriate address in accordance with Section 13.3.

 

ARTICLE 14

CONCERNING THE DEBENTURE TRUSTEE

 

14.1 No Conflict of Interest

 

The Debenture Trustee represents to the Corporation that at the date of execution and delivery by it of this Indenture there exists no material conflict of interest in the role of the Debenture Trustee as a fiduciary hereunder but if, notwithstanding the provisions of this Section 14.1, such a material conflict of interest exists, or hereafter arises, the validity and enforceability of this Indenture, and the Debentures issued hereunder, shall not be affected in any manner whatsoever by reason only that such material conflict of interest exists or arises but the Debenture Trustee shall, within 90 days after ascertaining that it has a material conflict of interest, either eliminate such material conflict of interest or resign in the manner and with the effect specified in Section 14.2.

 

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14.2 Replacement of Debenture Trustee

 

The Debenture Trustee may resign its trust and be discharged from all further duties and liabilities hereunder by giving to the Corporation 60 days notice in writing or such shorter notice as the Corporation may accept as sufficient. If at any time a material conflict of interest exists in the Debenture Trustee’s role as a fiduciary hereunder the Debenture Trustee shall, within 90 days after ascertaining that such a material conflict of interest exists, either eliminate such material conflict of interest or resign in the manner and with the effect specified in this Section 14.2. The validity and enforceability of this Indenture and of the Debentures issued hereunder shall not be affected in any manner whatsoever by reason only that such a material conflict of interest exists. In the event of the Debenture Trustee resigning or being removed or being dissolved, becoming bankrupt, going into liquidation or otherwise becoming incapable of acting hereunder, the Corporation shall forthwith appoint a new Debenture Trustee unless a new Debenture Trustee has already been appointed by the Debentureholders. Failing such appointment by the Corporation, the retiring Debenture Trustee or any Debentureholder may apply to a Judge of the Alberta Court of Queen’s Bench, on such notice as such Judge may direct at the Corporation’s expense, for the appointment of a new Debenture Trustee but any new Debenture Trustee so appointed by the Corporation or by the Court shall be subject to removal as aforesaid by the Debentureholders and the appointment of such new Debenture Trustee shall be effective only upon such new Debenture Trustee becoming bound by this Indenture. Any new Debenture Trustee appointed under any provision of this Section 14.2 shall be a corporation authorized to carry on the business of a trust company in all of the Provinces of Canada. On any new appointment the new Debenture Trustee shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as Debenture Trustee.

 

Any company into which the Debenture Trustee may be merged or, with or to which it may be consolidated, amalgamated or sold, or any company resulting from any merger, consolidation, sale or amalgamation to which the Debenture Trustee shall be a party, or any company acquiring all or substantially all or succeeding to the corporate trust business of the Debenture Trustee shall be the successor trustee under this Indenture without the execution of any instrument or any further act. Nevertheless, upon the written request of the successor Debenture Trustee or of the Corporation, and upon payment of all outstanding fees and expenses owed by the Corporation to the Debenture Trustee, the Debenture Trustee ceasing to act shall execute and deliver an instrument assigning and transferring to such successor Debenture Trustee, upon the trusts herein expressed, all the rights, powers and trusts of the Debenture Trustee so ceasing to act, and shall duly assign, transfer and deliver all property and money held by such Debenture Trustee to the successor Debenture Trustee so appointed in its place. Should any deed, conveyance or instrument in writing from the Corporation be required by any new Debenture Trustee for more fully and certainly vesting in and confirming to it such estates, properties, rights, powers and trusts, then any and all such deeds, conveyances and instruments in writing shall on request of said new Debenture Trustee, be made, executed, acknowledged and delivered by the Corporation.

 

14.3 Duties of Debenture Trustee

 

In the exercise of the rights, duties and obligations prescribed or conferred by the terms of this Indenture, the Debenture Trustee shall act honestly and in good faith and exercise that degree of care, diligence and skill that a reasonably prudent trustee would exercise in comparable circumstances.

 

14.4 Reliance Upon Declarations, Opinions, etc.

 

In the exercise of its rights, duties and obligations hereunder the Debenture Trustee may, if acting in good faith, act and rely, as to the truth of the statements and accuracy of the opinions expressed therein, upon statutory declarations, written notices, requests, waivers, consents, opinions, reports, certificates or other paper or document furnished to it pursuant to any covenant, condition or requirement of this Indenture or required by the Debenture Trustee to be furnished to it in the exercise of its rights and duties hereunder, and the Debenture Trustee, if it reasonably believes such document to be genuine and what it purports to be shall be protected in acting upon such, basing such action on a belief, in good faith, in its due execution and the validity and effectiveness of its provisions, as well as in the truth and acceptability of any information therein contained. The Debenture Trustee may nevertheless, in its discretion, require further proof in cases where it deems further proof desirable. Without restricting the foregoing, the Debenture Trustee may act and rely on an opinion of Counsel satisfactory to the

 

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Debenture Trustee notwithstanding that it is delivered by a solicitor or firm which acts as solicitors for the Corporation.

 

14.5 Evidence and Authority to Debenture Trustee, Opinions, etc.

 

The Corporation shall furnish to the Debenture Trustee evidence of compliance with the conditions precedent provided for in this Indenture relating to any action or step required or permitted to be taken by the Corporation or the Debenture Trustee under this Indenture or as a result of any obligation imposed under this Indenture, including without limitation, the certification and delivery of Debentures hereunder, the satisfaction and discharge of this Indenture and the taking of any other action to be taken by the Debenture Trustee at the request of or on the application of the Corporation, forthwith if and when (a) such evidence is required by any other Section of this Indenture to be furnished to the Debenture Trustee in accordance with the terms of this Section 14.5, or (b) the Debenture Trustee, in the exercise of its rights and duties under this Indenture, gives the Corporation written notice requiring it to furnish such evidence in relation to any particular action or obligation specified in such notice.

 

Such evidence shall consist of:

 

(a) a certificate made by any one officer or director of the Corporation, on behalf of the Corporation, stating that any such condition precedent has been complied with in accordance with the terms of this Indenture;

 

(b) in the case of a condition precedent compliance with which is, by the terms of this Indenture, made subject to review or examination by a solicitor, an opinion of Counsel that such condition precedent has been complied with in accordance with the terms of this Indenture; and

 

(c) in the case of any such condition precedent compliance with which is subject to review or examination by auditors or accountants, an opinion or report of the Auditors of the Corporation whom the Debenture Trustee for such purposes hereby approves, that such condition precedent has been complied with in accordance with the terms of this Indenture.

 

Whenever such evidence relates to a matter other than the certificates and delivery of Debentures and the satisfaction and discharge of this Indenture, and except as otherwise specifically provided herein, such evidence may consist of a report or opinion of any solicitor, auditor, accountant, engineer or appraiser or any other person whose qualifications give authority to a statement made by him, provided that if such report or opinion is furnished by a trustee, officer or employer of the Corporation it shall be in the form of a statutory declaration. Such evidence shall be, so far as appropriate, in accordance with the immediately preceding paragraph of this Section.

 

Each statutory declaration, certificate, opinion or report with respect to compliance with a condition precedent provided for in the Indenture shall include (a) a statement by the person giving the evidence that he has read and is familiar with those provisions of this Indenture relating to the condition precedent in question, (b) a brief statement of the nature and scope of the examination or investigation upon which the statements or opinions contained in such evidence are based, (c) a statement that, in the belief of the person giving such evidence, he has made such examination or investigation as is necessary to enable him to make the statements or give the opinions contained or expressed therein, and (d) a statement whether in the opinion of such person the conditions precedent in question have been complied with or satisfied.

 

The Corporation shall furnish to the Debenture Trustee at any time if the Debenture Trustee reasonably so requires, its certificate that the Corporation has complied with all covenants, conditions or other requirements contained in this Indenture, the non-compliance with which would, with the giving of notice or the lapse of time, or both, or otherwise, constitute an Event of Default, or if such is not the case, specifying the covenant, condition or other requirement which has not been complied with and giving particulars of such non-compliance. The Corporation shall, whenever the Debenture Trustee so requires, furnish the Debenture Trustee with evidence by way of statutory declaration, opinion, report or certificate as specified by the Debenture Trustee as to any action or step required or permitted to be taken by the Corporation or as a result of any obligation imposed by this Indenture.

 

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14.6 Officer’s Certificates Evidence

 

Except as otherwise specifically provided or prescribed by this Indenture, whenever in the administration of the provisions of this Indenture the Debenture Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or omitting any action hereunder, the Debenture Trustee, if acting in good faith, may rely upon an Officer’s Certificate.

 

14.7 Experts, Advisers and Agents

 

The Debenture Trustee may:

 

(a) employ or retain and act and rely on the opinion or advice of or information obtained from any solicitor, auditor, valuer, engineer, surveyor, appraiser or other expert, whether obtained by the Debenture Trustee or by the Corporation, or otherwise, and shall not be liable for acting, or refusing to act, in good faith on any such opinion or advice and the costs of such experts shall be part of the Debenture Trustee’s fees hereunder; and

 

(b) employ such agents and other assistants as it may reasonably require for the proper determination and discharge of its duties hereunder (and shall be entitled to receive reasonable remuneration for all services performed by it), and in the discharge of the trusts hereof and compensation for all disbursements, costs and expenses made or incurred by it in the discharge of its duties hereunder and in the management of the trusts hereof and any solicitors employed or consulted by the Debenture Trustee may, but need not be, solicitors for the Corporation.

 

14.8 Debenture Trustee May Deal in Debentures

 

Subject to Sections 14.1 and 14.3, the Debenture Trustee may, in its personal or other capacity, buy, sell, lend upon and deal in the Debentures and generally contract and enter into financial transactions with the Corporation or otherwise, without being liable to account for any profits made thereby.

 

14.9 Investment of Monies Held by Debenture Trustee

 

Upon receipt of a direction from the Corporation, the Debenture Trustee shall invest the funds in Authorized Investments in its name in accordance with such direction. Any direction from the Corporation to the Debenture Trustee shall be in writing and shall be provided to the Debenture Trustee no later than 9:00a.m (Calgary Time) on the day on which the investment is to be made. Any such direction received by the Debenture Trustee after 9:00a.m (Calgary Time) or received on a non-Business Day, shall be deemed to have been given prior to 9:00a.m. (Calgary Time) the next Business Day. For the purposes hereof, “Authorized Investments” means short term interest bearing or discount debt obligations issued or guaranteed by the Government of Canada or a Province or a Canadian chartered bank (which may include an Affiliate or related party of the Debenture Trustee) provided that such obligation is rated at least R1 (middle) by DBRS Inc. or an equivalent rating service.

 

In the event that the Debenture Trustee does no receive a direction or only a partial direction, the Debenture Trustee may hold cash balances constituting part or all of the funds and may, but need not, invest same in its deposit department or the deposit department of one of its Affiliates; but the Debenture Trustee and its Affiliates shall not be liable to account for any profit to any parties to this Indenture or to any other person or entity other than at a rate, if any, established from time to time by the Debenture Trustee or one of its Affiliates. For the purpose of this Section, “Affiliate” means affiliated companies within the meaning of the Business Corporations Act (Ontario) (“OBCA”); and includes Canadian Imperial Bank of Commerce, CIBC Mellon Global Securities Services Company and Mellon Bank, N.A. and each of their affiliates within the meaning of the OBCA.

 

Unless and until the Debenture Trustee shall have declared the principal of and interest on the Debentures to be due and payable, the Debenture Trustee shall pay over to the Corporation all interest received by the Debenture Trustee in respect of any investments or deposits made pursuant to the provisions of this Section.

 

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14.10  Debenture Trustee Not Ordinarily Bound

 

Except as provided in Section 8.2 and as otherwise specifically provided herein, the Debenture Trustee shall not, subject to Section 14.3, be bound to give notice to any person of the execution hereof, nor to do, observe or perform or see to the observance or performance by the Corporation of any of the obligations herein imposed upon the Corporation or of the covenants on the part of the Corporation herein contained, nor in any way to supervise or interfere with the conduct of the Corporation’s business, unless the Debenture Trustee shall have been required to do so in writing by the holders of not less than 25% of the aggregate principal amount of the Debentures then outstanding or by any Extraordinary Resolution of the Debentureholders passed in accordance with the provisions contained in Article 12, and then only after it shall have been funded and indemnified to its satisfaction against all actions, proceedings, claims and demands to which it may render itself liable and all costs, charges, damages and expenses which it may incur by so doing.

 

14.11  Debenture Trustee Not Required to Give Security

 

The Debenture Trustee shall not be required to give any bond or security in respect of the execution of the trusts and powers of this Indenture or otherwise in respect of the premises.

 

14.12  Debenture Trustee Not Bound to Act on Corporation’s Request

 

Except as in this Indenture otherwise specifically provided, the Debenture Trustee shall not be bound to act in accordance with any direction or request of the Corporation or of the trustee until a duly authenticated copy of the instrument or resolution containing such direction or request shall have been delivered to the Debenture Trustee, and the Debenture Trustee shall be empowered to act upon any such copy purporting to be authenticated and believed by the Debenture Trustee to be genuine.

 

14.13  Conditions Precedent to Debenture Trustee’s Obligations to Act Hereunder

 

The obligation of the Debenture Trustee to commence or continue any act, action or proceeding for the purpose of enforcing the rights of the Debenture Trustee and of the Debentureholders hereunder shall be conditional upon the Debentureholders furnishing when required by notice in writing by the Debenture Trustee, sufficient funds to commence or continue such act, action or proceeding and indemnity reasonably satisfactory to the Debenture Trustee to protect and hold harmless the Debenture Trustee against the costs, charges and expenses and liabilities to be incurred thereby and any loss and damage it may suffer by reason thereof.

 

None of the provisions contained in this Indenture shall require the Debenture Trustee to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties under this Indenture or in the exercise of any of its rights or powers, shall it be so compelled pursuant to any provision of this Indenture unless indemnified as aforesaid.

 

The Debenture Trustee may, before commencing or at any time during the continuance of any such act, action or proceeding require the Debentureholders at whose instance it is acting to deposit with the Debenture Trustee the Debentures held by them for which Debentures the Debenture Trustee shall issue receipts.

 

14.14  Authority to Carry on Business

 

The Debenture Trustee represents to the Corporation that at the date of execution and delivery by it of this Indenture it is authorized to carry on the business of a trust company in the Province of Alberta but if, notwithstanding the provisions of this Section 14.14, it ceases to be so authorized to carry on business, the validity and enforceability of this Indenture and the securities issued hereunder shall not be affected in any manner whatsoever by reason only of such event but the Debenture Trustee shall, within 90 days after ceasing to be authorized to carry on the business of trust company in the Province of Alberta, either become so authorized or resign in the manner and with the effect specified in Section 14.2.

 

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14.15  Compensation and Indemnity

 

(a) The Corporation shall pay to the Debenture Trustee from time to time compensation for its services hereunder as agreed separately by the Corporation and the Debenture Trustee, and shall pay or reimburse the Debenture Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Debenture Trustee in the administration or execution of its duties under this Indenture (including the reasonable and documented compensation and disbursements of its Counsel and all other advisers and assistants not regularly in its employ), both before any default hereunder and thereafter until all duties of the Debenture Trustee under this Indenture shall be finally and fully performed. The Debenture Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust.

 

(b) The Corporation hereby indemnifies and saves harmless the Debenture Trustee and its directors, officers and employees from and against any and all loss, damages, charges, expenses, claims, demands, actions or liability whatsoever which may be brought against the Debenture Trustee or which it may suffer or incur as a result of or arising out of the performance of its duties and obligations hereunder save only in the event of the negligent failure to act, or the wilful misconduct or bad faith of the Debenture Trustee. This indemnity will survive the termination or discharge of this Indenture and the resignation or removal of the Debenture Trustee. The Debenture Trustee shall notify the Corporation promptly of any claim for which it may seek indemnity. The Corporation shall defend the claim and the Debenture Trustee shall co-operate in the defence. The Debenture Trustee may have separate counsel and the Corporation shall pay the reasonable fees and expenses of such Counsel. The Corporation need not pay for any settlement made without its consent, which consent must not be unreasonably withheld. This indemnity shall survive the resignation or removal of the Debenture Trustee or the discharge of this Indenture.

 

(c) The Corporation need not indemnify against any loss or liability incurred by the Debenture Trustee through negligence or bad faith or material breach of the Debenture Trustee’s material duties hereunder.

 

14.16  Acceptance of Trust

 

The Debenture Trustee hereby accepts the trusts in this Indenture declared and provided for and agrees to perform the same upon the terms and conditions herein set forth and to hold all rights, privileges and benefits conferred hereby and by law in trust for the various persons who shall from time to time be Debentureholders, subject to all the terms and conditions herein set forth.

 

(a) The Debenture Trustee shall not be responsible or liable in any manner whatever for the sufficiency, correctness, genuineness or validity of any security deposited with it.

 

(b) The Debenture Trustee shall not be liable for any error in judgement or for any act done or step taken or omitted by it in good faith or for any mistake, in fact or law, or for anything which it may do or refrain from doing in connection herewith except arising out of its own negligence or wilful misconduct.

 

(c) The Debenture Trustee will disburse monies according to this Agreement only to the extent that monies have been deposited with it.

 

(d) The duties and obligations of the Debenture Trustee shall be determined solely by the provisions hereof and, accordingly, the Debenture Trustee shall not be responsible except for the performance of such duties and obligations as it has undertaken herein.

 

The Debenture Trustee shall not be bound to give any notice or do or take any act, action or proceeding by virtue of the powers conferred on it hereby unless and until it shall have been required to do so under the terms hereof; nor shall the Debenture Trustee be required to take notice of any default hereunder, unless and until notified in writing of such default, which notice shall distinctly specify the default desired to be brought to the attention of the Debenture Trustee and in the absence of any such notice the Debenture Trustee may for all purposes of this Indenture conclusively assume that no default has been made in the observance or performance of any of the

 

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representations, warranties, covenants, agreements or conditions contained herein. Any such notice shall in no way limit any discretion herein given to the Debenture Trustee to determine whether or not the Debenture Trustee shall take action with respect to any default.

 

ARTICLE 15

SUPPLEMENTAL INDENTURES

 

15.1 Supplemental Indentures

 

From time to time the Debenture Trustee and, when authorized by a resolution of the directors of the Corporation, the Corporation, may, and they shall when required by this Indenture, subject to the prior written approval of the Toronto Stock Exchange, execute, acknowledge and deliver by their proper officers deeds or indentures supplemental hereto which thereafter shall form part hereof, for any one or more of the following purposes:

 

(a) providing for the issuance of Additional Debentures under this Indenture;

 

(b) adding to the covenants of the Corporation herein contained for the protection of the Debentureholders, or of the Debentures of any series, or providing for events of default, in addition to those herein specified;

 

(c) making such provisions not inconsistent with this Indenture as may be necessary or desirable with respect to matters or questions arising hereunder, including the making of any modifications in the form of the Debentures which do not affect the substance thereof and which in the opinion of the Debenture Trustee relying on an opinion of Counsel will not be prejudicial to the interests of the Debentureholders;

 

(d) evidencing the succession, or successive successions, of others to the Corporation and the covenants of and obligations assumed by any such successor in accordance with the provisions of this Indenture;

 

(e) giving effect to any Extraordinary Resolution passed as provided in Article 12; and

 

(f) for any other purpose not inconsistent with the terms of this Indenture.

 

Unless the supplemental indenture requires the consent or concurrence of Debentureholders or the holders of a particular series of Debentures, as the case may be, by Extraordinary Resolution, the consent or concurrence of Debentureholders or the holders of a particular series of Debentures, as the case may be, shall not be required in connection with the execution, acknowledgement or delivery of a supplemental indenture. The Corporation and the Debenture Trustee may amend any of the provisions of this Indenture related to matters of United States or Canadian law or the issuance of Debentures into the United States or Canada in order to ensure that such issuances can be properly done in accordance with applicable law in the United States or Canada without the consent or approval of the Debentureholders. Further, the Corporation and the Debenture Trustee may without the consent or concurrence of the Debentureholders or the holders of a particular series of Debentures, as the case may be, by supplemental indenture or otherwise, make any changes or corrections in this Indenture which it shall have been advised by Counsel are required for the purpose of curing or correcting any ambiguity or defective or inconsistent provisions or clerical omissions or mistakes or manifest errors contained herein or in any indenture supplemental hereto or any Written Direction of the Corporation provided for the issue of Debentures, providing that in the opinion of the Debenture Trustee (relying upon an opinion of Counsel) the rights of the Debentureholders are in no way prejudiced thereby.

 

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ARTICLE 16

EXECUTION AND FORMAL DATE

 

16.1 Execution

 

This Indenture may be simultaneously executed in several counterparts, each of which when so executed shall be deemed to be an original and such counterparts together shall constitute one and the same instrument.

 

16.2 Formal Date

 

For the purpose of convenience this Indenture may be referred to as bearing the formal date of November 12, 2004 irrespective of the actual date of execution hereof.

 

16.3 Counterparts

 

This Indenture may be executed in original or by facsimile in any number of counterparts, each of which shall be deemed to be an original, and together the counterparts shall constitute one complete document.

 

IN WITNESS whereof the parties hereto have executed these presents under their respective corporate seals and the hands of their proper officers in that behalf.

 

GASTAR EXPLORATION LTD.
By:   “J. R USSELL P ORTER
   

Title:

   

 

CIBC MELLON TRUST COMPANY
By:   “R OGER B OOTH
   

Title:

   
By:   “N ORMA B LASETTI
   

Title:

   

 

62


 

SCHEDULE “A”

 

TO THE TRUST INDENTURE BETWEEN GASTAR EXPLORATION LTD. AND CIBC MELLON TRUST COMPANY

 

FORM OF DEBENTURE

 

No. ·   US$ ·

 

GASTAR EXPLORATION LTD.

 

(A corporation existing under the Business Corporations Act (Alberta))

 

9.75% CONVERTIBLE SENIOR UNSECURED SUBORDINATED DEBENTURE

due NOVEMBER 20, 2009

 

GASTAR EXPLORATION LTD. (the “ Corporation ”) for value received hereby acknowledges itself indebted and, subject to the provisions of the trust indenture (the “ Indenture ”) dated as of November 12, 2004 between the Corporation and CIBC Mellon Trust Company (the “ Debenture Trustee ”), promises to pay to the registered holder hereof, on November 20, 2009 (the “ Maturity Date ”) or on such earlier date as the principal amount hereof may become due in accordance with the provisions of the Indenture, the principal sum of · US Dollars (US$ · ) on presentation and surrender of this Debenture at the main branch of the Debenture Trustee in Calgary, Alberta in accordance with the terms of the Indenture and, subject as hereinafter provided, to pay interest on the principal amount hereof from the date hereof, or from the last Interest Payment Date to which interest shall have been paid or made available for payment hereon, whichever is later, at the rate of 9.75% per annum, in like money, in arrears in quarterly instalments (less any tax required by law to be deducted) on February 12, May 12, August 12 and November 12 in each year commencing on February 12, 2005, and provided that the last payment (representing interest payable from the last Interest Payment Date to, but excluding, the Maturity Date) shall fall due on the Maturity Date and, should the Corporation at any time make default in the payment of any principal or interest, to pay interest on the amount in default at the same rate, in like money and on the same dates. For certainty, the first interest payment will include interest accrued from November 12, 2004 to, but excluding, February 12, 2005, which will be equal to US$24.58 for each US$1,000 principal amount of the Initial Debentures.

 

All payments of interest on this Debenture (less any tax required to be withheld therefrom) shall be made by certified cheque, bank draft or electronic transfer of funds made payable to the registered holder hereof.

 

This Debenture is one of the 9.75% Convertible Senior Unsecured Subordinated Debentures (referred to herein as “ Initial Debentures ”) of the Corporation issued or issuable in one or more series under the provisions of the Indenture. The Initial Debentures authorized for issue immediately are limited to an aggregate principal amount of US$30,000,000. Reference is hereby expressly made to the Indenture for a description of the terms and conditions upon which the Debentures are or are to be issued and held and the rights and remedies of the holders of the Debentures and of the Corporation and of the Debenture Trustee, all to the same effect as if the provisions of the Indenture were herein set forth to all of which provisions the holder of this Debenture by acceptance hereof assents. To the extent that the terms and conditions stated in this Debenture conflict with the provisions of the Indenture, the provisions of the Indenture shall prevail.

 

The Initial Debentures are issuable only in denominations of US$1,000 and integral multiples thereof. Upon compliance with the provisions of the Indenture, Debentures of any denomination may be exchanged for an equal aggregate principal amount of Debentures in any other authorized denomination or denominations.

 

Any part, being US$1,000 or an integral multiple thereof, of the principal of this Debenture, provided that the principal amount of this Debenture is in a denomination in excess of US$1,000, is convertible, at the option of the holder hereof, upon surrender of this Debenture at the principal office of the Debenture Trustee in Calgary, Alberta, at any time prior to the close of business on the last Business Day immediately preceding the Maturity Date or, if this Debenture is called for redemption on or prior to such date, then up to but not after the close

 

A-1


of business on the last Business Day immediately preceding the date specified for redemption of this Debenture, into the nearest whole number of Common Shares (without adjustment for interest accrued hereon or for dividends or distributions on Common Shares issuable upon conversion) calculated by dividing the principal amount of Debentures presented for conversion by the initial conversion price of US$4.62 (the “ Conversion Price ”) per Common Share, all subject to the terms and conditions and in the manner set forth in the Indenture. The Indenture makes provision for the adjustment of the Conversion Price in the events therein specified, including that in the event the Liquidity Event has not occurred on or prior to (i) March 12, 2005, the Conversion Price shall be automatically adjusted to equal US$4.54, (ii) May 12, 2005, the Conversion Price shall be automatically adjusted to equal US$4.46, and (iii) July 12, 2005, the Conversion Price shall be automatically adjusted to equal US$4.38; provided that the foregoing automatic adjustments shall be immediately further adjusted to reflect any Conversion Price adjustments required by Section 6.5 of the Indenture made prior to such automatic adjustment. No fractional Common Shares will be issued on any conversion but in lieu thereof, the Corporation will satisfy such fractional interest by a cash payment equal to the market price of such fractional interest determined in accordance with the Indenture. Holders converting their Debentures will receive accrued and unpaid interest thereon up to but not including the Conversion Date. Subject to the provisions of Article 6 of the Indenture, no adjustment in the number of Common Shares to be issued upon conversion (but as yet unissued) will be made for distributions or dividends on Common Shares issuable upon conversion or for interest accrued on Initial Debentures surrendered for conversion.

 

This Debenture may be redeemed at the option of the Corporation on the terms and conditions set out in the Indenture at the redemption price therein and herein set out provided that this Debenture is not redeemable on or before November 12, 2006, except in the event of the satisfaction of certain conditions after a Change of Control has occurred. After November 12, 2006 and on or prior to maturity, this Debenture is not redeemable unless the Corporation shall file with the Debenture Trustee on the day that notice of redemption of this Initial Debenture is first given, an Officer’s Certificate of the Corporation certifying that the U.S. Currency Equivalent of the weighted average price of the Common Shares on the Toronto Stock Exchange (or elsewhere in accordance with the Indenture) for 20 consecutive trading days selected by the Corporation in any consecutive 30 day period ending on the fifth trading day preceding the date on which such notice is given, is at least 130% of the Conversion Price then in effect.

 

Upon the occurrence of a Change of Control of the Corporation, the Corporation is required to make an offer (a “ Change of Control Offer ”) to purchase all of the Initial Debentures at a price equal to the Offer Price set forth in the Indenture plus accrued and unpaid interest up to, but excluding, the date the Initial Debentures so repurchased. If 90% or more of the principal amount of all Debentures outstanding on the date the Corporation provides notice of a Change of Control to the Debenture Trustee have been tendered for purchase pursuant to the Change of Control Offer, the Corporation has the right to and shall redeem all the remaining outstanding Initial Debentures on the same date and at the same price.

 

If an offer (an “ Offer ”) to acquire all outstanding Debentures is made and 90% or more of the principal amount of all the Initial Debentures (other than Initial Debentures held at the date of the Offer by or on behalf of the Offeror, Associates or Affiliates of the Offeror or anyone acting jointly or in concert with the Offeror) are taken up and paid for by the Offeror, the Offeror will be entitled to acquire the Initial Debentures of those holders who did not accept the Offer on the same terms as the Offeror acquired the first 90% of the principal amount of the Initial Debentures.

 

The indebtedness evidenced by this Debenture, and by all other Initial Debentures now or hereafter certified and delivered under the Indenture, is a direct unsecured obligation of the Corporation, and is subordinated in right of payment, to the extent and in the manner provided in the Indenture, to the prior payment of all Senior Indebtedness, whether outstanding at the date of the Indenture or thereafter created, incurred, assumed or guaranteed.

 

The principal hereof may become or be declared due and payable before the stated maturity in the events, in the manner, with the effect and at the times provided in the Indenture.

 

The Indenture contains provisions making binding upon all holders of Debentures outstanding thereunder (or in certain circumstances specific series of Debentures) resolutions passed at meetings of such holders held in accordance with such provisions and instruments signed by the holders of a specified majority of Debentures


outstanding (or specific series), which resolutions or instruments may have the effect of amending the terms of this Initial Debenture or the Indenture.

 

The Indenture contains provisions disclaiming any personal liability on the part of holders of Common Shares, officers or agents of the Corporation in respect of any obligation or claim arising out of the Indenture or this Debenture.

 

This Debenture may only be transferred, upon compliance with the conditions prescribed in the Indenture, in one of the registers to be kept at the principal office of the Debenture Trustee in the City of Calgary and in such other place or places and/or by such other registrars (if any) as the Corporation with the approval of the Debenture Trustee may designate. No transfer of this Debenture shall be valid unless made on the register by the registered holder hereof or his executors or administrators or other legal representatives, or his or their attorney duly appointed by an instrument in form and substance satisfactory to the Debenture Trustee or other registrar, and upon compliance with such reasonable requirements as the Debenture Trustee and/or other registrar may prescribe and upon surrender of this Debenture for cancellation. Thereupon a new Initial Debenture or Initial Debentures in the same aggregate principal amount shall be issued to the transferee in exchange hereof.

 

This Debenture shall not become obligatory for any purpose until it shall have been certified by the Debenture Trustee under the Indenture.

 

Capitalized words or expressions used in this Debenture shall, unless otherwise defined herein, have the meaning ascribed thereto in the Indenture.

 

IN WITNESS WHEREOF GASTAR EXPLORATION LTD. has caused this Debenture to be signed by its authorized representatives as of the 12th day of November, 2004.

 

GASTAR EXPLORATION LTD.

By:

   
     


DEBENTURE TRUSTEE’S CERTIFICATE

 

This Debenture is one of the 9.75% Convertible Senior Unsecured Subordinated Debentures due November 20, 2009 referred to in the Indenture within mentioned.

 

CIBC MELLON TRUST COMPANY
By:    
    (Authorized Officer)

 

REGISTRATION PANEL

 

(No writing hereon except by Debenture Trustee or other registrar)

 

Date of Registration


 

In Whose Name Registered


 

Signature of Debenture Trustee or

Registrar


         
         
         
         

 

A-4


FORM OF ASSIGNMENT

 

FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto                                                               , whose address and social insurance number or social security number, if applicable, are set forth below, this Debenture (or US$                          principal amount hereof*) of GASTAR EXPLORATION LTD., standing in the name(s) of the undersigned in the register maintained by the Corporation with respect to such Debenture and does hereby irrevocably authorize and direct the Debenture Trustee to transfer such Debenture in such register, with full power of substitution in the premises.

 

Dated:     

 

Address of Transferee:     
     (Street Address, City, Province and Postal Code)

 

Social Insurance Number or Social Security Number of Transferee, if applicable:     

 

* If less than the full principal amount of the within Debenture is to be transferred, indicate in the space provided the principal amount (which must be US$1,000 or an integral multiple thereof, unless you hold a Debenture in a non-integral multiple of US$1,000 by reason of your having exercised your right to exchange upon the making of an Offer, in which case such Initial Debenture is transferable only in its entirety) to be transferred.

 

1. The signature(s) to this assignment must correspond with the name(s) as written upon the face of this Debenture in every particular without alteration or any change whatsoever. The signature(s) must be guaranteed by a Canadian chartered bank or by a member of an acceptable Medallion Guarantee Program. Notarized or witnessed signatures are not acceptable as guaranteed signatures. The Guarantor must affix a stamp bearing the actual words: “SIGNATURE GUARANTEED”.

 

2. The registered holder of this Debenture is responsible for the payment of any documentary, stamp or other transfer taxes that may be payable in respect of the transfer of this Debenture.

 

3. Persons signing in a representative capacity may be required to provide proof of their authority to act.

 

Signature of Guarantor:

 

             
Authorized Officer       Signature of transferring registered holder
             
Name of Institution       Name of Holder (Please print)
           
        Capacity of Authorized Representative

 

A-5


CONVERSION NOTICE

 

TO:  GASTAR EXPLORATION LTD.

 

Note:  All capitalized terms used herein have the meaning ascribed thereto in the Indenture mentioned below, unless otherwise indicated.

 

The undersigned registered holder of 9.75% Convertible Senior Unsecured Subordinated Debentures bearing Certificate No.                                               irrevocably elects to convert such Debentures (or US$                                               principal amount thereof*) in accordance with the terms of the Indenture referred to in such Debentures and tenders herewith the Debentures, and, if applicable, directs that the Common Shares of Gastar Exploration Ltd. issuable upon a conversion be issued and delivered to the person indicated below. (If Common Shares are to be issued in the name of a person other than the holder, all requisite transfer taxes must be tendered by the undersigned).

 

Dated:                
            (Signature of Registered Holder)

 

* If less than the full principal amount of the Debentures, indicate in the space provided the principal amount (which must be US$1,000 or integral multiples thereof).

 

NOTE:   If Common Shares are to be issued in the name of a person other than the holder, the signature must be guaranteed by a Canadian Schedule 1 chartered bank, a major Canadian trust company or by a member of an acceptable Medallion Guarantee Program. The Guarantor must affix a stamp bearing the actual words: “SIGNATURE GUARANTEED”.

 

(Print name in which Common Shares are to be issued, delivered and registered)

 

Name:    
 
(Address)
 
(City, Province and Postal Code)
Name of guarantor:    
Authorized signature:    

 

A-6


SCHEDULE “B”

 

TO THE TRUST INDENTURE BETWEEN GASTAR EXPLORATION LTD. AND CIBC MELLON TRUST COMPANY

 

GASTAR EXPLORATION LTD.

 

9.75% CONVERTIBLE SENIOR UNSECURED SUBORDINATED DEBENTURES

 

REDEMPTION NOTICE

 

To:  Holders of 9.75% Convertible Senior Unsecured Subordinated Debentures (the “ Debentures ”) of Gastar Exploration Ltd. (the “ Corporation ”)

 

Note:  All capitalized terms used herein have the meaning ascribed thereto in the Indenture mentioned below, unless otherwise indicated.

 

Notice is hereby given pursuant to Section 4.3 of the trust indenture (the “ Indenture ”) dated as of November 12, 2004 between the Corporation and CIBC Mellon Trust Company (the “ Debenture Trustee ”), that the aggregate principal amount of US$ · of the US$ · of Debentures outstanding will be redeemed as of · (the “ Redemption Date ”), upon payment of a redemption amount of US$ · for each US$1,000 principal amount of Debentures, being equal to the aggregate of (i) US$ · (the “ Redemption Price ”), and (ii) all accrued and unpaid interest hereon to but excluding the Redemption Date (collectively, the “ Total Redemption Price ”).

 

The Total Redemption Price will be payable upon presentation and surrender of the Debentures called for redemption at the following corporate trust office:

 

CIBC Mellon Trust Company

600, 333 – 7 th Avenue SW

Calgary, AB T2P 2Z1

Attention: Robert Inkster

 

The interest upon the principal amount of Debentures called for redemption shall cease to be payable from and after the Redemption Date, unless payment of the Total Redemption Price shall not be made on presentation for surrender of such Debentures at the above-mentioned corporate trust office on or after the Redemption Date or prior to the setting aside of the Total Redemption Price pursuant to the Indenture.

 

DATED:

 

GASTAR EXPLORATION LTD.
   
(Authorized Director or Officer)

 

B-1


SCHEDULE “C”

 

TO THE TRUST INDENTURE BETWEEN GASTAR EXPLORATION LTD. AND CIBC MELLON TRUST COMPANY

 

FORM OF DECLARATION FOR REMOVAL OF LEGEND

 

TO:  CIBC Mellon Trust Company, as trustee and registrar of the 9.75% Convertible Senior Unsecured Subordinated Debentures and Common Shares of Gastar Exploration Ltd.

 

The undersigned (a) acknowledges that the sale of the securities of Gastar Exploration Ltd. (the “Corporation”) to which this declaration relates is being made in reliance on Rule 904 of Regulation S under the United States Securities Act of 1933 , as amended (the “1933 Act”) and (b) certifies that (1) it is not an affiliate of the Corporation (as defined in Rule 405 under the 1933 Act), (2) the offer of such securities was not made to a person in the United States, and either (A) at the time the buy order was originated, the buyer was outside the United States, or the seller and any person acting on its behalf reasonably believe that the buyer was outside the United States, or (B) the transaction was executed on or through the facilities of the Toronto Stock Exchange and neither the seller nor any person acting on its behalf knows that the transaction has been prearranged with a buyer in the United States, (3) neither the seller nor any affiliate of the seller nor any person acting on any of their behalf has engaged or will engage in any directed selling efforts in the United States in connection with the offer and sale of such securities, (4) the sale is bona fide and not for the purpose of “washing off” the resale restrictions imposed because the securities are “restricted securities” (as such term is defined in Rule 144(a)(3) under the 1933 Act), (5) the seller does not intend to replace the securities sold in reliance on Rule 904 of the 1933 Act with fungible unrestricted securities, and (6) the contemplated sale is not a transaction, or part of a series of transactions which, although in technical compliance with Regulation S, is part of a plan or scheme to evade the registration provisions of the 1933 Act. Terms used herein have the meanings given to them by Regulation S.

 

Dated:           By:    
            Name:    
            Title:    

 

C-1

EXHIBIT 4.2

 

No.                    US$                 

 

GASTAR EXPLORATION LTD.

 

(A corporation existing under the Business Corporations Act (Alberta))

 

9.75% CONVERTIBLE SENIOR UNSECURED SUBORDINATED DEBENTURE

due NOVEMBER 20, 2009

 

GASTAR EXPLORATION LTD. (the “ Corporation ”) for value received hereby acknowledges itself indebted and, subject to the provisions of the trust indenture (the “ Indenture ”) dated as of November 12, 2004 between the Corporation and CIBC Mellon Trust Company (the “ Debenture Trustee ”), promises to pay to the registered holder hereof, on November 20, 2009 (the “ Maturity Date ”) or on such earlier date as the principal amount hereof may become due in accordance with the provisions of the Indenture, the principal sum of Ten Thousand US Dollars (US$10,000) on presentation and surrender of this Debenture at the main branch of the Debenture Trustee in Calgary, Alberta in accordance with the terms of the Indenture and, subject as hereinafter provided, to pay interest on the principal amount hereof from the date hereof, or from the last Interest Payment Date to which interest shall have been paid or made available for payment hereon, whichever is later, at the rate of 9.75% per annum, in like money, in arrears in quarterly instalments (less any tax required by law to be deducted) on February 12, May 12, August 12 and November 12 in each year commencing on February 12, 2005, and provided that the last payment (representing interest payable from the last Interest Payment Date to, but excluding, the Maturity Date) shall fall due on the Maturity Date and, should the Corporation at any time make default in the payment of any principal or interest, to pay interest on the amount in default at the same rate, in like money and on the same dates. For certainty, the first interest payment will include interest accrued from November 12, 2004 to, but excluding, February 12, 2005, which will be equal to US$24.58 for each US$1,000 principal amount of the Initial Debentures.

 

All payments of interest on this Debenture (less any tax required to be withheld therefrom) shall be made by certified cheque, bank draft or electronic transfer of funds made payable to the registered holder hereof.

 

This Debenture is one of the 9.75% Convertible Senior Unsecured Subordinated Debentures (referred to herein as “ Initial Debentures ”) of the Corporation issued or issuable in one or more series under the provisions of the Indenture. The Initial Debentures authorized for issue immediately are limited to an aggregate principal amount of US$30,000,000. Reference is hereby expressly made to the Indenture for a description of the terms and conditions upon which the Debentures are or are to be issued and held and the rights and remedies of the holders of the Debentures and of the Corporation and of the Debenture Trustee, all to the same effect as if the provisions of the Indenture were herein set forth to all of which provisions the holder of this Debenture by acceptance hereof assents. To the extent that the terms and conditions stated in this Debenture conflict with the provisions of the Indenture, the provisions of the Indenture shall prevail.

 

The Initial Debentures are issuable only in denominations of US$1,000 and integral multiples thereof. Upon compliance with the provisions of the Indenture, Debentures of any denomination may be exchanged for an equal aggregate principal amount of Debentures in any other authorized denomination or denominations.


Any part, being US$1,000 or an integral multiple thereof, of the principal of this Debenture, provided that the principal amount of this Debenture is in a denomination in excess of US$1,000, is convertible, at the option of the holder hereof, upon surrender of this Debenture at the principal office of the Debenture Trustee in Calgary, Alberta, at any time prior to the close of business on the last Business Day immediately preceding the Maturity Date or, if this Debenture is called for redemption on or prior to such date, then up to but not after the close of business on the last Business Day immediately preceding the date specified for redemption of this Debenture, into the nearest whole number of Common Shares (without adjustment for interest accrued hereon or for dividends or distributions on Common Shares issuable upon conversion) calculated by dividing the principal amount of Debentures presented for conversion by the initial conversion price of US$4.62 (the “ Conversion Price ”) per Common Share, all subject to the terms and conditions and in the manner set forth in the Indenture. The Indenture makes provision for the adjustment of the Conversion Price in the events therein specified, including that in the event the Liquidity Event has not occurred on or prior to (i) March 12, 2005, the Conversion Price shall be automatically adjusted to equal US$4.54, (ii) May 12, 2005, the Conversion Price shall be automatically adjusted to equal US$4.46, and (iii) July 12, 2005, the Conversion Price shall be automatically adjusted to equal US$4.38; provided that the foregoing automatic adjustments shall be immediately further adjusted to reflect any Conversion Price adjustments required by Section 6.5 of the Indenture made prior to such automatic adjustment. No fractional Common Shares will be issued on any conversion but in lieu thereof, the Corporation will satisfy such fractional interest by a cash payment equal to the market price of such fractional interest determined in accordance with the Indenture. Holders converting their Debentures will receive accrued and unpaid interest thereon up to but not including the Conversion Date. Subject to the provisions of Article 6 of the Indenture, no adjustment in the number of Common Shares to be issued upon conversion (but as yet unissued) will be made for distributions or dividends on Common Shares issuable upon conversion or for interest accrued on Initial Debentures surrendered for conversion.

 

This Debenture may be redeemed at the option of the Corporation on the terms and conditions set out in the Indenture at the redemption price therein and herein set out provided that this Debenture is not redeemable on or before November 12, 2006, except in the event of the satisfaction of certain conditions after a Change of Control has occurred. After November 12, 2006 and on or prior to maturity, this Debenture is not redeemable unless the Corporation shall file with the Debenture Trustee on the day that notice of redemption of this Initial Debenture is first given, an Officer’s Certificate of the Corporation certifying that the U.S. Currency Equivalent of the weighted average price of the Common Shares on the Toronto Stock Exchange (or elsewhere in accordance with the Indenture) for 20 consecutive trading days selected by the Corporation in any consecutive 30 day period ending on the fifth trading day preceding the date on which such notice is given, is at least 130% of the Conversion Price then in effect.

 

Upon the occurrence of a Change of Control of the Corporation, the Corporation is required to make an offer (a “ Change of Control Offer ”) to purchase all of the Initial Debentures at a price equal to the Offer Price set forth in the Indenture plus accrued and unpaid interest up to, but excluding, the date the Initial Debentures so repurchased. If 90% or more of the principal amount of all Debentures outstanding on the date the Corporation provides notice of a Change of Control to the Debenture Trustee have been tendered for purchase pursuant to the Change of Control Offer, the Corporation has the right to and shall redeem all the remaining outstanding Initial Debentures on the same date and at the same price.

 

If an offer (an “ Offer ”) to acquire all outstanding Debentures is made and 90% or more of the principal amount of all the Initial Debentures (other than Initial Debentures held at the date of the Offer by or on behalf of the Offeror, Associates or Affiliates of the Offeror or anyone acting jointly or in concert with the Offeror) are taken up and paid for by the Offeror, the Offeror will be entitled to acquire the Initial Debentures of those holders who did not accept the Offer on the same terms as the Offeror acquired the first 90% of the principal amount of the Initial Debentures.

 

The indebtedness evidenced by this Debenture, and by all other Initial Debentures now or hereafter certified and delivered under the Indenture, is a direct unsecured obligation of the Corporation, and is subordinated in right of payment, to the extent and in the manner provided in the Indenture, to the prior payment of all Senior Indebtedness, whether outstanding at the date of the Indenture or thereafter created, incurred, assumed or guaranteed.

 

The principal hereof may become or be declared due and payable before the stated maturity in the events, in the manner, with the effect and at the times provided in the Indenture.

 

2


The Indenture contains provisions making binding upon all holders of Debentures outstanding thereunder (or in certain circumstances specific series of Debentures) resolutions passed at meetings of such holders held in accordance with such provisions and instruments signed by the holders of a specified majority of Debentures outstanding (or specific series), which resolutions or instruments may have the effect of amending the terms of this Initial Debenture or the Indenture.

 

The Indenture contains provisions disclaiming any personal liability on the part of holders of Common Shares, officers or agents of the Corporation in respect of any obligation or claim arising out of the Indenture or this Debenture.

 

This Debenture may only be transferred, upon compliance with the conditions prescribed in the Indenture, in one of the registers to be kept at the principal office of the Debenture Trustee in the City of Calgary and in such other place or places and/or by such other registrars (if any) as the Corporation with the approval of the Debenture Trustee may designate. No transfer of this Debenture shall be valid unless made on the register by the registered holder hereof or his executors or administrators or other legal representatives, or his or their attorney duly appointed by an instrument in form and substance satisfactory to the Debenture Trustee or other registrar, and upon compliance with such reasonable requirements as the Debenture Trustee and/or other registrar may prescribe and upon surrender of this Debenture for cancellation. Thereupon a new Initial Debenture or Initial Debentures in the same aggregate principal amount shall be issued to the transferee in exchange hereof.

 

This Debenture shall not become obligatory for any purpose until it shall have been certified by the Debenture Trustee under the Indenture.

 

Capitalized words or expressions used in this Debenture shall, unless otherwise defined herein, have the meaning ascribed thereto in the Indenture.

 

3


IN WITNESS WHEREOF GASTAR EXPLORATION LTD. has caused this Debenture to be signed by its authorized representatives as of the 24 th day of June, 2005.

 

GASTAR EXPLORATION LTD.
By:    

 

4


DEBENTURE TRUSTEE’S CERTIFICATE

 

This Debenture is one of the 9.75% Convertible Senior Unsecured Subordinated Debentures due November 20, 2009 referred to in the Indenture within mentioned.

 

CIBC MELLON TRUST COMPANY
By:    
    (Authorized Officer)

 

REGISTRATION PANEL

 

(No writing hereon except by Debenture Trustee or other registrar)

 

Date of Registration


 

In Whose Name Registered


 

Signature of Debenture Trustee or

Registrar


June 24, 2005

 

Nesbitt Burns ITF A/C 402 90012 96

35 th Floor, P.O. Box 150

1 First Canadian Place

Toronto, ON M5X 1H3

   

 

5


FORM OF ASSIGNMENT

 

FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto                                               , whose address and social insurance number or social security number, if applicable, are set forth below, this Debenture (or US$                          principal amount hereof*) of GASTAR EXPLORATION LTD., standing in the name(s) of the undersigned in the register maintained by the Corporation with respect to such Debenture and does hereby irrevocably authorize and direct the Debenture Trustee to transfer such Debenture in such register, with full power of substitution in the premises.

 

Dated:     
Address of Transferee:     
   

(Street Address, City, Province and Postal Code)

 

Social Insurance Number or Social Security Number of Transferee, if applicable:     

 

* If less than the full principal amount of the within Debenture is to be transferred, indicate in the space provided the principal amount (which must be US$1,000 or an integral multiple thereof, unless you hold a Debenture in a non-integral multiple of US$1,000 by reason of your having exercised your right to exchange upon the making of an Offer, in which case such Initial Debenture is transferable only in its entirety) to be transferred.

 

1. The signature(s) to this assignment must correspond with the name(s) as written upon the face of this Debenture in every particular without alteration or any change whatsoever. The signature(s) must be guaranteed by a Canadian chartered bank or by a member of an acceptable Medallion Guarantee Program. Notarized or witnessed signatures are not acceptable as guaranteed signatures. The Guarantor must affix a stamp bearing the actual words: “SIGNATURE GUARANTEED”.

 

2. The registered holder of this Debenture is responsible for the payment of any documentary, stamp or other transfer taxes that may be payable in respect of the transfer of this Debenture.

 

3. Persons signing in a representative capacity may be required to provide proof of their authority to act.

 

Signature of Guarantor:

 

             
Authorized Officer       Signature of transferring registered holder
             
Name of Institution       Name of Holder (Please print)
           
        Capacity of Authorized Representative


CONVERSION NOTICE

 

TO: GASTAR EXPLORATION LTD.

 

Note:  All capitalized terms used herein have the meaning ascribed thereto in the Indenture mentioned below, unless otherwise indicated.

 

The undersigned registered holder of 9.75% Convertible Senior Unsecured Subordinated Debentures bearing Certificate No.                                               irrevocably elects to convert such Debentures (or US$                                      principal amount thereof*) in accordance with the terms of the Indenture referred to in such Debentures and tenders herewith the Debentures, and, if applicable, directs that the Common Shares of Gastar Exploration Ltd. issuable upon a conversion be issued and delivered to the person indicated below. (If Common Shares are to be issued in the name of a person other than the holder, all requisite transfer taxes must be tendered by the undersigned).

 

Dated:                
            (Signature of Registered Holder)

 

* If less than the full principal amount of the Debentures, indicate in the space provided the principal amount (which must be US$1,000 or integral multiples thereof).

 

NOTE:   If Common Shares are to be issued in the name of a person other than the holder, the signature must be guaranteed by a Canadian Schedule 1 chartered bank, a major Canadian trust company or by a member of an acceptable Medallion Guarantee Program. The Guarantor must affix a stamp bearing the actual words: “SIGNATURE GUARANTEED”.

 

(Print name in which Common Shares are to be issued, delivered and registered)

 

Name:    
 
(Address)
 
(City, Province and Postal Code)
Name of guarantor:    
Authorized signature:    

 

7

EXHIBIT 4.3

 

UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS PURCHASE WARRANT CERTIFICATE MUST NOT TRADE THE PURCHASE WARRANTS OR THE COMMON SHARES ISSUABLE UPON EXERCISE BEFORE MARCH 12, 2005.

 

THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION UNDER SUCH ACT OR AN EXEMPTION FROM REGISTRATION, WHICH, IN THE OPINION OF COUNSEL REASONABLY SATISFACTORY TO COUNSEL FOR THIS CORPORATION, IS AVAILABLE.

 

THE PURCHASE WARRANTS REPRESENTED BY THIS CERTIFICATE WILL BE VOID AND OF NO VALUE UNLESS EXERCISED NO LATER THAN 4:30 p.m. (CALGARY TIME) ON MAY 12, 2006.

 

WARRANT CERTIFICATE

GASTAR EXPLORATION LTD.

(A corporation subsisting under the laws of the Province of Alberta)

 

WARRANT    
CERTIFICATE NO.                                             PURCHASE WARRANTS entitling the holder to acquire, subject to adjustment, one (1) Common Share for each Purchase Warrant represented hereby.

 

THIS IS TO CERTIFY THAT                                           (hereinafter referred to as the “holder”) is the registered holder of that number of Purchase Warrants to acquire Common Shares (as hereinafter defined) of Gastar Exploration Ltd. (the “Corporation”) as set forth in this Purchase Warrant certificate (“Warrant Certificate”). Each Purchase Warrant represented hereby entitles the holder thereof to acquire, in the manner and subject to the restrictions and adjustments set forth herein, at any time and from time to time until 4:30 p.m. (Calgary Time) (the “Time of Expiry”) on May 12, 2006 (the “Expiry Date”), one (1) fully paid and non-assessable common share without nominal or par value, (together with any other securities which may be issued or distributed by the Corporation with respect thereto or in substitution therefor, the “Common Shares”) of the Corporation, at a price of CDN$4.65 per share.

 

The right to acquire Common Shares hereunder may only be exercised by the holder within the time set forth above by:

 

a. duly completing and executing the Exercise Form attached hereto;

 

b. surrendering this Warrant Certificate to the head office of the Corporation; and

 

c. remitting cash, certified cheque, bank draft or money order in lawful money of Canada, payable to or to the order of the Corporation where this Warrant Certificate is so surrendered, for the aggregate purchase price of the Common Shares so subscribed for.

 

These Purchase Warrants may be surrendered only upon personal delivery hereof or, if sent by mail or other means of transmission, upon actual receipt thereof by the Corporation at the office referred to above.

 

Upon exercise of these Purchase Warrants as provided above, the person or persons in whose name or names the Common Shares issuable upon exercise of the Purchase Warrants are to be issued shall be deemed for all purposes to be the holder or holders of record of such Common Shares. The Corporation covenants that it will cause a certificate or certificates representing such Common Shares to be delivered or mailed to the person or persons at the address or addresses specified in the Exercise Form as soon as is practicable and in any event within seven (7) business days.

 

The registered holder of this Warrant Certificate may acquire any lesser number of Common Shares than the number of Common Shares which may be acquired for the Purchase Warrants represented by this Warrant Certificate. In


such event, the holder shall be entitled to receive a new certificate for the balance of the Common Shares which may be acquired. To the extent that the holder is entitled to receive on the exercise or partial exercise thereof a fraction of a Common Share, such right may only be exercised in respect of such fraction in combination with another Purchase Warrant or other Purchase Warrants, which in the aggregate entitles the holder to receive a whole number of Common Shares.

 

If the holder is not able to or elects not to, combine Purchase Warrants so as to be entitled to acquire a whole number of Common Shares, the Corporation shall make an appropriate cash settlement. However, in respect of any holder, the Corporation shall only be required to make such a cash adjustment once and for one Purchase Warrant and no more. The amount of the cash adjustment with respect to the Common Share shall be equal to the fraction of the Common Share to which the holder would be entitled multiplied by the current market price of the Common Shares as determined in good faith by the Corporation.

 

The Corporation agrees that, prior to the expiration of this Purchase Warrant, the Corporation will at all times:

 

a. have authorized and in reserve, and will keep available, solely for issuance or delivery upon the exercise of this Purchase Warrant, the maximum amount of Common Shares and other securities and properties as from time to time shall be receivable upon the exercise of this Purchase Warrant, free and clear of all restrictions on sale or transfer, except for:

 

  i. the restrictions on sale or transfer set forth in the Securities Act of 1933, the Business Corporations Act (Alberta) or any other statute of Canada or a province thereof, and of regulations under any such act or other statute, relating to warrant agreements or to the rights, duties and obligations of trustees, or warrant agents, and of corporations under warrant agreements; and

 

  ii. restrictions created by or on behalf of the holder, and free and clear of all preemptive rights and rights of first refusal; and

 

b. cause the Common Shares to be listed on the Toronto Stock Exchange or other securities exchange on which the Common Shares are then listed.

 

The Corporation covenants that:

 

a. all of the Common Shares are validly authorized and, if and when this Purchase Warrant is exercised in whole or in part in accordance with the terms hereof, the Common Shares issued upon such exercise, upon receipt by the Corporation of the full exercise price therefor, shall be validly issued, fully paid, nonassessable, and will not be issued in violation of any preemptive rights or other rights of stockholders;

 

b. it will pay, when due and payable, any and all federal, provincial and state stamp, original issue or similar taxes which may be payable in respect of the issue of any Common Shares or any certificate thereof pursuant to the exercise of the Purchase Warrants;

 

c. it will comply with all filings and reporting obligations required to maintain good standing with the Toronto Stock Exchange or such other stock exchange as the Common Shares may then be listed upon, and thereby maintain its Common Shares so listed.; and

 

d. following the date hereof, in the event the Corporation is required to file a Registration Statement covering the Common Shares issuable upon conversion of the Convertible Debentures issued by the Corporation on November 12, 2004, the Corporation shall use reasonable commercial efforts to include the Common Shares issuable upon exercise of the Purchase Warrants in such Registration Statement.

 

In the event of any alteration of the Common Shares, including any subdivision, consolidation or reclassification, and in the event of any form of reorganization of the Corporation including any amalgamation, merger or arrangement, or any dividend or distribution of Common Shares or other securities or property, or successive transactions thereof, the holders of Purchase Warrants shall, upon exercise of the Purchase Warrants following the occurrence of any of those events, be entitled to receive the same number and kind of shares, securities or property

 

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that they would have been entitled to receive had they exercised their Purchase Warrants immediately prior to the occurrence of those events. The Corporation covenants to take such steps as may be necessary to ensure that the issuer of any shares of stock or other securities or property thereafter deliverable on the exercise of this Purchase Warrant, pursuant to any of the alterations described above, shall be responsible for all of the agreements and obligations of the Corporation hereunder, and the Corporation shall ensure that such issuer executes an agreement with the holder providing that the holder has the rights thereafter to receive upon exercise of this Purchase Warrant such shares, securities or property. In case at any time the Corporation shall take any action requiring an adjustment as described above, the Corporation shall give written notice thereof, to the holder at the holder’s address as it shall appear on the books of the Corporation, at least fifteen (15) days prior to the date as of which the holders of record of the Common Shares are entitled to receive any shares, securities or property.

 

The holding of the Purchase Warrants evidenced by this Warrant Certificate shall not constitute the holder hereof a shareholder of the Corporation or entitle the holder to any right or interest in respect thereof except as expressly provided in this Warrant Certificate.

 

The Purchase Warrants evidenced by this Warrant Certificate may be transferred on the register kept at the principal offices of the Corporation in Mt. Pleasant, Michigan by the registered holder hereof or its legal representatives or its attorney duly appointed by an instrument in writing in form and execution satisfactory to the Corporation.

 

This Warrant Certificate shall not be valid for any purpose whatever unless and until it has been signed by or on behalf of the Corporation.

 

Upon receipt of evidence satisfactory to the Corporation of the loss, theft, destruction or mutilation of this Purchase Warrant, and upon receipt of indemnity reasonably satisfactory to the Corporation, if lost, stolen or destroyed, and upon surrender and cancellation of this Purchase Warrant, if mutilated, the Corporation shall execute and deliver to the holder a new Purchase Warrant of like date, tenor and denomination.

 

The parties hereto irrevocably consent to the exclusive jurisdiction of the courts of the Province of Alberta in connection with any action or proceeding arising out of or relating to this Purchase Warrant, any document or instrument delivered pursuant to, in connection with or simultaneously with this Purchase Warrant, or a breach of this Purchase Warrant or any such document or instrument. In any such action or proceeding, each party hereto waives personal service of any summons, complaint or other process and agrees that service thereof may be made to the respective agents of the parties designated to receive service of process. Within thirty (30) days after such service, or such other time as may be mutually agreed upon in writing by the attorneys for the parties to such action or proceeding, the party so served shall appear or answer such summons, complaint or other process.

 

No course of dealing and no delay or omission on the part of the holder in exercising any right or remedy shall operate as a waiver thereof or otherwise prejudice the holder’s rights, powers or remedies. No right, power or remedy conferred by this Purchase Warrant upon the holder shall be exclusive of any other right, power or remedy referred to herein or now or hereafter available at law, in equity, by statute or otherwise, and all such remedies may be exercised singly or concurrently.

 

This Purchase Warrant may be amended only by a written instrument executed by the Corporation and the holder hereof. Any amendment shall be endorsed upon this Purchase Warrant, and all future holders shall be bound thereby.

 

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Time shall be of the essence hereof. This Warrant Certificate shall be governed by and construed in accordance with the laws of the Province of Alberta.

 

IN WITNESS WHEREOF the Corporation has caused this Warrant Certificate to be signed by its duly authorized officers as of November 12, 2004.

 

GASTAR EXPLORATION LTD.
Per:    
    J. Russell Porter, Chief Executive Officer

 

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TRANSFER OF PURCHASE WARRANTS

 

FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers to                                                               ,                          Purchase Warrants of Gastar Exploration Ltd. (the “Corporation”) registered in the name of the undersigned on the records of the Corporation represented by the Warrant Certificate attached and irrevocably appoints                                                       the attorney of the undersigned to transfer the said securities on the books or register with full power of substitution.

 

If less than all the Purchase Warrants represented by this Warrant Certificate are being transferred, the Warrant Certificate representing those Purchase Warrants not transferred will be registered in the name appearing on the face of this Warrant Certificate and such certificates (please check one):

 

(a) __________ should be sent by first class mail to the following address:

 

______________________________________________________________________________________

 

______________________________________________________________________________________

 

(b) __________ should be held for pick up at the principal office of the Corporation in Mt. Pleasant, Michigan, at which this Warrant Certificate is deposited.

 

DATED the          day of                      ,              .

 

Signature Guaranteed

         
       

(Signature of holder)

 

Instructions:

 

1. Signature of the holder must be the signature of the person appearing on the face of this Warrant Certificate.

 

2. If the Transfer Form is signed by a trustee, executor, administrator, curator, guardian, attorney, officer of a corporation or any person acting in a judiciary or representative capacity, the certificate must be accompanied by evidence of authority to sign satisfactory to the Corporation.

 

3. The signature on the Transfer Form must be guaranteed by an authorized officer of a chartered bank, trust company or an investment dealer who is a member of a recognized stock exchange.

 

4. Purchase Warrants shall only be transferable in accordance with applicable laws.

 

5. The Purchase Warrants and the Common Shares issuable upon exercise thereof have not been registered under the United States Securities Act of 1933 , as amended (the “U.S. Securities Act”), or the securities laws of any state of the United States, and may not be transferred in the United States or to a U.S. Person unless the Purchase Warrants and the Common Shares have been registered under the U.S. Securities Act and the securities laws of all applicable states of the United States or an exemption from such registration requirements is available. In connection with any transfer of Purchase Warrants, the holder will be required to provide to the Corporation an opinion of counsel, or other evidence, in form reasonably satisfactory to the Corporation, to the effect that such transfer of Purchase Warrants does not require registration under the U.S. Securities Act or any applicable state laws and regulations governing the offer and sale of securities.

 

- 1 -


EXERCISE FORM

 

  TO: GASTAR EXPLORATION LTD.

 

(a) The undersigned hereby exercises the right to acquire                              Common Shares of Gastar Exploration Ltd..

 

(b) The Common Shares (or other securities or property) are to be issued as follows:

 

Name:

    
     (print clearly)

Address in full:

    
 
 

 

Social Insurance Number/Social Security Number/IRS Tax Identification Number:      

 

Number of Common Shares: 

    

 

Note : If further nominees intended, please attach (and initial) schedule giving these particulars.

 

(c) Such securities (please check one):

 

  __________  should be sent by first class mail to the following address:

 

OR

 

  __________  should be held for pick up at the office of the Corporation at its principal office in Mt. Pleasant Michigan at which this Warrant Certificate is deposited.

 

If the number of Purchase Warrants exercised are less than the number of Purchase Warrants represented hereby, the undersigned requests that the new Warrant Certificate representing the balance of the Purchase Warrants be registered in the name of

 

 
 

 

whose address is 

    
 

 

Such securities (please check one):

 

(a) _________  should be sent by first class mail to the following address:

 

 
 

 

OR

 

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(b) __________ should be held for pick up at the office of the principal office of the Corporation in Mt. Pleasant, Michigan at which this Warrant Certificate is deposited.

 

In the absence of instructions to the contrary, the securities or other property will be issued in the name of or to the holder hereof and will be sent by first class mail to the last address of the holder appearing on the register maintained for the Purchase Warrants.

 

DATED this          day of                      ,          .

 

             

Signature Guaranteed

     

(Signature of holder)

             
       

Print full name

             
             
       

Print full address

 

Instructions :

 

1. The registered holder may exercise its right to receive Common Shares by completing this form and surrendering this form and the Warrant Certificate representing the Purchase Warrants being exercised to the Corporation at its principal office in Mt. Pleasant, Michigan. Certificates for Common Shares will be delivered or mailed as soon as is practicable and in any event within seven (7) business days after the exercise of the Purchase Warrants.

 

2. If the Exercise Form indicates that Common Shares are to be issued to a person or persons other than the registered holder of the Certificate, the signature of such holder of the Exercise Form must be guaranteed by an authorized officer of a chartered bank, trust company or an investment dealer who is a member of a recognized stock exchange.

 

3. If the Exercise Form is signed by a trustee, executor, administrator, curator, guardian, attorney, officer of a corporation or any person acting in a fiduciary or representative capacity, the certificate must be accompanied by evidence of authority to sign satisfactory to the Corporation.

 

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EXHIBIT 4.4

 

November 12, 2004

 

Gastar Exploration Ltd.

2480 West Campus Drive, Bldg. C

MT. Pleasant, MI

48858

 

Attention:    J. Russell Porter
     President and Chief Executive Officer

 

Dear Sirs:

 

Re: Convertible Debenture Financing

 

Westwind Partners Inc. (the “Agent”) understands that Gastar Exploration Ltd. (the “Corporation”) proposes to offer for sale on a private placement basis up to US$30,000,000 aggregate principal amount of Convertible Debentures (as hereinafter defined), subject to private placement exemptions contained in the Securities Act (Alberta) and the Rules thereunder and the Securities Act of 1933, as amended (the “1933 Act”), and such other exemptions as may be applicable in the Selling Jurisdictions (as hereinafter defined).

 

Subject to the terms and conditions hereof, the Agent hereby agrees to act as, and the Corporation hereby appoints the Agent as the sole exclusive agent of the Corporation to offer for sale on a private placement basis to purchasers in the Selling Jurisdictions the Convertible Debentures for up to an aggregate consideration of US$30,000,000. The Agent agrees to use its best efforts to lawfully secure the subscriptions therefor, provided the Agent shall be under no obligation to purchase any Convertible Debentures.

 

The Agent shall be entitled in connection with the offering for sale of the Convertible Debentures to retain as sub-agents other registered securities dealers and may receive (for delivery to the Corporation at the Closing Time) subscriptions for Convertible Debentures from other registered securities dealers. The fee payable to such sub-agents shall be for the account of the Agent.

 

In consideration for its services hereunder, including acting as financial advisor to the Corporation and advising on the terms and conditions of the distribution, the Agent shall be entitled to: (a) be paid the fees provided for in paragraph 9.1(a) hereof which fees shall be payable from the general corporate funds of the Corporation; and (b) be issued the Broker’s Warrants (as hereinafter defined) provided for in subparagraph 9.1(b) hereof, which Broker’s Warrants shall be substantially in the form set out in Schedule “C” hereto. For greater certainty, the services provided by the Agent in connection herewith will not be subject to goods and services tax provided for in the Excise Tax Act (Canada) and taxable supplies provided will be incidental to the exempt financial services provided.


The following are the further terms and conditions of this agreement:

 

ARTICLE 1

INTERPRETATION

 

1.1 In this agreement:

 

  (a) “Agent’s Counsel” means Macleod Dixon LLP.

 

  (b) “Applicable Securities Laws” includes, without limitation, all applicable securities laws, rules, regulations, notices, policies and rulings of the Selling Jurisdictions;

 

  (c) “Broker’s Warrants” means the Agent compensation warrants to be issued to the Agent as provided for in subparagraph 9.l(b), each Agent compensation warrant entitling the holder thereof to be issued one common share of the Corporation upon payment of the purchase price therefor pursuant to the terms and conditions of the Broker’s Warrant Certificate;

 

  (d) “Broker’s Warrant Certificate” means the certificate representing the Broker’s Warrants substantially in the form attached as Schedule “C” hereto;

 

  (e) “business day” means a day, other than Saturdays, Sundays and statutory holidays, when the banks conducting business in the City of Calgary are generally open for the transaction of banking business;

 

  (f) “Closing Date” means the date or dates on which the Offering is completed and which is expected to take place on or about November 12, 2004 or such later date as the Agent and the Corporation may agree upon in writing;

 

  (g) “Closing Time” means 9:00 a.m. (Calgary time) or such other time on the Closing Date, as the Agent and the Corporation may agree upon;

 

  (h) “Common Shares” means the common shares in the capital of the Corporation;

 

  (i) “Convertible Debentures” means the 9.75% convertible senior unsecured debentures of the Corporation due five years and one day following the Closing Date;

 

  (j) “Corporation’s Counsel” means Burnet, Duckworth & Palmer LLP, Warner Norcross & Judd LLP and Vinson & Elkins L.L.P.;

 

  (k) “Documents” means, collectively:

 

  (i) the Annual Report of the Corporation for the year ended December 31, 2003 including the consolidated audited financial statements of the Corporation for the year ended December 31, 2003 contained therein;

 

  (ii) the Annual Information Form of the Corporation dated May 12, 2004 for the year ended December 31, 2003;

 

- 2 -


  (iii) the Management Proxy and Information Circular of the Corporation for the annual and special meeting of shareholders of the Corporation held on June 28, 2004;

 

  (iv) the consolidated interim unaudited financial statements of the Corporation for the six month period ended June 30, 2004;

 

  (v) all material change reports of the Corporation filed with applicable Securities Commissions subsequent to December 31, 2003; and

 

  (vi) all press releases of the Corporation issued subsequent to December 31, 2003;

 

  (l) “Exchange” means the Toronto Stock Exchange;

 

  (m) “Financial Statements” means, collectively, the audited consolidated financial statements of the Corporation for the year ended December 31, 2003 and the unaudited consolidated financial statements of the Corporation for the six month period ended June 30, 2004;

 

  (n) “Indenture” means the trust indenture to be dated as of the Closing Date between the Corporation and the Trustee, as trustee, governing the terms and conditions of the Convertible Debentures;

 

  (o) “Material Subsidiaries” means each subsidiary of the Corporation (within the meaning of the Business Corporations Act (Alberta)), in each case, the total assets of which constitute 5% or more of the consolidated assets of the Corporation as at June 30, 2004, or the total revenues of which constitute more than 5% of the consolidated revenues of the Corporation for the year ended December 31, 2003;

 

  (p) “Netherland, Sewell” means Netherland, Sewell & Associates, Inc., independent geological and petroleum engineering consultants of Dallas, Texas;

 

  (q) “Netherland, Sewell Report” means the Report on Reserves Data as at January 1, 2004 prepared by Netherland, Sewell & Associates, Inc. and dated April 14, 2004;

 

  (r) “Offering” means the private placement offering of the Convertible Debentures described herein;

 

  (s) “Offering Memorandum” means the confidential power point presentation and confidential term sheet of the Corporation;

 

  (t) “Public Record” means any information filed by and on behalf of the Corporation with applicable Securities Commissions since December 31, 2003, including, without limitation, the Documents and any other information filed with any applicable Securities Commission in compliance, or intended compliance, with any Applicable Securities Laws;

 

- 3 -


  (u) “Securities Commissions” means the securities commissions or similar regulatory authorities in the Selling Jurisdictions;

 

  (v) “Selling Jurisdictions” means the provinces of Alberta and Ontario, the United States, the United Kingdom and continental Europe and such other jurisdictions outside of Canada with respect to which the Agent and the Corporation shall have agreed not less than three days prior to the Closing Date;

 

  (w) “Subscriber” means any person who executes a Subscription Agreement which is accepted by the Corporation;

 

  (x) “Subscription Agreements” means the agreements to be entered into between the Subscribers and the Corporation providing for the purchase by Subscribers of Convertible Debentures;

 

  (y) “subsidiary” has the meaning ascribed thereto in the Business Corporations Act (Alberta);

 

  (z) “Trustee” means CIBC Mellon Trust Company; and

 

  (aa) “Transfer Agent” means CIBC Mellon Trust Company in its capacity as registrar and transfer agent for the Common Shares.

 

1.2 In addition, the terms “misrepresentation” , “material change” and “material fact” shall have the meanings ascribed thereto under the Applicable Securities Laws, distribution shall also have the meaning as defined under the Applicable Securities Laws and “distribute” has a corresponding meaning.

 

1.3 The terms “this agreement” , “hereto” , “wherein” , “hereby” , “hereunder” , “hereof and similar expressions refer to the agreement of the parties set forth herein and not to a particular paragraph or other portion of this agreement.

 

ARTICLE 2

OFFERING OF THE CONVERTIBLE DEBENTURES

 

2.1 The Corporation will duly and validly issue the Convertible Debentures pursuant to the terms of the Subscription Agreements and the Indenture and create and issue the Broker’s Warrants pursuant to the terms of this agreement and the Broker’s Warrant Certificate. The Indenture shall be in form and substance satisfactory to the Agent and the Agent’s counsel, acting reasonably.

 

2.2 The Corporation represents, warrants, covenants and agrees that the representations and warranties of the Corporation set forth in the Subscription Agreements are, or will be, true and correct as of the time they were or will be made and that the Corporation will fully comply with the covenants and agreements of the Corporation set forth therein.

 

2.3 The Agent agrees to obtain and to deliver to the Corporation at or prior to the Closing Time duly completed Subscription Agreements, a private placement questionnaire and

 

- 4 -


undertaking as required by the Exchange in the form attached to the Subscription Agreements and such other documents specifically referred to in the Subscription Agreements or as are required under Applicable Securities Laws and supplied to the Agent by the Corporation for completion in connection with the distribution of the Convertible Debentures, all of which shall be executed by each of the Subscribers of Convertible Debentures.

 

ARTICLE 3

DUE DILIGENCE REVIEW

 

3.1 Prior to the Closing Time, the Corporation shall allow the Agent the opportunity to conduct required due diligence, including, without limiting the generality of the foregoing, due diligence in relation to the operations and affairs of the Corporation and to obtain, acting reasonably, satisfactory results therefrom. In particular, the Corporation shall allow the Agent and the Agent’s Counsel to conduct all due diligence which the Agent may reasonably require in order to confirm the Public Record is accurate, complete and current in all material respects and to fulfil the Agent’s obligations as a registrant.

 

3.2 Without limiting the generality of the foregoing, the Corporation shall make available its directors and senior management and, on a commercially reasonable basis, its independent engineers and auditors to answer any questions which the Agent may have during one or more due diligence sessions to be held prior to the Closing Time. The Agent shall distribute a list of written questions to be answered in advance of such Due Diligence Session and the Corporation shall provide responses to such questions at the Due Diligence Session.

 

ARTICLE 4

DELIVERY OF DOCUMENTS

 

4.1 The Corporation shall, as soon as reasonably possible, deliver to the Agent as many copies of the Documents as the Agent may reasonably request and such delivery shall constitute the Agent’s authority to use the Documents in connection with the Offering of the Convertible Debentures for sale in the Selling Jurisdictions.

 

4.2 Following the Closing Date, in the event the Corporation is required under the terms of the Subscription Agreements to file a Registration Statement covering the Common Shares issuable upon conversion of the Convertible Debentures, the Corporation shall use reasonable commercial efforts to include the Common Shares issuable upon exercise of the Broker’s Warrants in such Registration Statement.

 

ARTICLE 5

REPRESENTATIONS AND WARRANTIES

 

5.1 The Corporation represents and warrants to the Agent, and acknowledges that the Agent is relying upon such representations and warranties, that:

 

  (a) the Corporation and each of the Material Subsidiaries has been duly incorporated and organized and is validly subsisting under the laws of the jurisdiction of its incorporation and has all requisite corporate authority and power to carry on its business, as now conducted and as presently proposed to be conducted by it, and to own its properties and assets;

 

- 5 -


  (b) the Corporation and each of the Material Subsidiaries is qualified to carry on business and is validly existing under the laws of each jurisdiction in which it carries on a material portion of its business except in each case where it would not have a material adverse effect on the business of the Corporation and its subsidiaries, taken as a whole (“Material Adverse Effect”);

 

  (c) the Corporation has no Material Subsidiaries other than as set forth in Schedule “A” hereto;

 

  (d) the Corporation legally and beneficially owns all of the outstanding shares of each of the Material Subsidiaries and no person, firm, corporation or other entity has any agreement, warrant, option, right or privilege (whether pre-emptive or contractual) being, or capable of becoming an agreement, for the purchase or acquisition of any of the shares (whether issued or unissued) of any of the Material Subsidiaries;

 

  (e) the Corporation and each of the Material Subsidiaries has conducted and is conducting its business in compliance in all material respects with all applicable laws, rules and regulations and, in particular, all applicable licensing and environmental legislation or regulations or other lawful requirements of any governmental or regulatory bodies applicable to it of each jurisdiction in which it carries on its business, and the Corporation and each of the Material Subsidiaries holds all licences, registrations and qualifications (collectively “Licenses”) in all jurisdictions in which it carries on its business which are necessary or desirable to carry on its business as now conducted and as presently proposed to be conducted except in each case where it would not have a Material Adverse Effect, and all such Licenses are valid and existing and in good standing, except where the lack of such valid or existing License would not have a Material Adverse Effect;

 

  (f) the Corporation has full corporate power and authority to issue the Convertible Debentures and the Broker’s Warrants and to issue the Common Shares issuable upon the conversion of the Convertible Debentures and upon exercise of the Broker’s Warrants, as applicable; at the Closing Date, the Convertible Debentures will be duly and validly created, authorized and issued in accordance with the terms and conditions of the Indenture and the Common Shares issuable upon the conversion of the Convertible Debentures and upon the exercise of the Broker’s Warrants, as applicable, will be duly and validly authorized, allotted and reserved for issuance and will, when issued in accordance with the provisions of the Indenture or the Broker’s Warrants Certificate, as the case may be, be issued as fully paid and non-assessable Common Shares;

 

  (g) the Corporation is not in default or breach of, and the execution and delivery of, and the performance of and compliance with the terms of, this agreement, the Indenture, the Subscription Agreements and the Broker’s Warrant Certificate and

 

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the performance of any of the transactions contemplated hereby and thereby by the Corporation, after notice or lapse of time or both, do not and will not result in any breach of, or constitute a default under, and do not and will not result in a breach of or constitute a default under, any applicable laws which are material to the Corporation and its operations or any term or provision of the articles, by-laws or resolutions of the directors or shareholders of the Corporation, or any material mortgage, note, indenture, contract, agreement (written or oral), instrument, lease or other material document to which the Corporation or its Material Subsidiaries is a party or by which it is bound on the Closing Date, or any judgement, decree, order, statute, rule or regulation applicable to the Corporation or its Material Subsidiaries which default or breach would have a Material Adverse Effect;

 

  (h) the Corporation has full corporate power and authority to enter into this agreement, the Indenture, the Subscription Agreements and the Broker’s Warrant Certificate and to perform its obligations set out herein and therein, and this agreement has been, and the Indenture, each of the Subscription Agreements and the Broker’s Warrant Certificate will be, on the Closing Date, duly authorized, executed and delivered by the Corporation, and this agreement is and, the Indenture, the Subscription Agreements and the Broker’s Warrant Certificate will be, on the Closing Date, legal, valid and binding obligations of the Corporation enforceable against the Corporation in accordance with their respective terms, except that the validity, binding effect and enforceability of the terms of agreements and documents are subject to the qualification that such validity, binding effect and enforceability may be limited by (i) applicable bankruptcy, insolvency, moratorium, reorganization or other laws affecting creditors’ rights generally; (ii) equitable remedies, including the remedies of specific performance and injunctive relief, being available only in the discretion of the applicable court; (iii) the statutory and inherent powers of a court to grant relief from forfeiture, to stay execution of proceedings before it and to stay executions on judgments; (iv) the applicable laws regarding limitations of actions; (v) enforceability of provisions which purport to sever any provision which is prohibited or unenforceable under applicable law without affecting the enforceability or validity of the remainder of such document would be determined only in the discretion of the court; (vi) enforceability of the provisions exculpating a party from liability or duty otherwise owed by it may be limited under applicable law; and (vii) that rights to indemnity, contribution and waiver under the documents may be limited or unavailable under applicable law;

 

  (i) there has not been any material adverse change in the assets, liabilities or obligations of the Corporation and its subsidiaries (taken as a whole) from the position set forth in the Financial Statements or as otherwise disclosed in the Documents or as disclosed to the Agent and there has not been any material adverse change in the business, operations, capital or financial condition or results of the operations of the Corporation and its subsidiaries (taken as a whole) since December 31, 2003;

 

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  (j) the Financial Statements fairly present, in accordance with generally accepted accounting principles in Canada, consistently applied, the financial position and condition of the Corporation (on a consolidated basis), as applicable, as at the dates thereof and the results of the operations of the Corporation (on a consolidated basis), as applicable, for the periods then ended;

 

  (k) to the knowledge of the Corporation, there have not occurred any material spills, emissions or pollution on any property of the Corporation or of its subsidiaries for which the Corporation or any of its subsidiaries is responsible, nor is the Corporation or its subsidiaries the subject of any outstanding stop orders, control orders, clean-up orders or reclamation orders under applicable environmental laws and regulations which would have a Material Adverse Effect;

 

  (l) except as disclosed in the Public Record or to the Agent there are no actions, suits, proceedings or inquiries, to the Corporation’s knowledge, pending or threatened against or affecting the Corporation or its subsidiaries at law or in equity or before or by any federal, provincial, municipal or other governmental department, commission, board, bureau, agency or instrumentality which would have a Material Adverse Effect or which would adversely affect the distribution of the Convertible Debentures or the Common Shares issuable on conversion of the Convertible Debentures;

 

  (m) the information and statements set forth in the Public Record as they relate to the Corporation, were true, correct and complete in all material respects and did not contain any material misrepresentation, as of the respective dates of such information or statements, and no material change (as defined in Applicable Securities Laws) has occurred in relation to the Corporation which is not disclosed in the Public Record, and the Corporation has not filed any confidential material change reports which continue to be confidential;

 

  (n) the authorized capital of the Corporation consists of an unlimited number of Common Shares of which, as at November 12, 2004, 113,390,186 Common Shares are issued and outstanding as fully paid and non-assessable shares;

 

  (o) other than pursuant to the provisions of this agreement and other than options to acquire 24,368,000 Common Shares held by officers, directors and employees of the Corporation and 4,737,548 warrants to purchase 4,737,548 Common Shares, no person, firm, corporation or other entity holds any securities convertible or exchangeable into securities of the Corporation or now has any agreement, warrant, option, right or privilege (whether pre-emptive or contractual) being or capable of becoming an agreement for the purchase, subscription or issuance of any unissued shares, securities (including convertible securities) or warrants of the Corporation;

 

  (p) with such exceptions as are not material to the Corporation and its Material Subsidiaries (taken as a whole), the Corporation and each of the Material Subsidiaries has duly and on a timely basis filed all tax returns required to be filed

 

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by it, has paid all taxes due and payable by it and has paid all assessments and re-assessments and all other taxes, governmental charges, penalties, interest and other fines due and payable by it and which are claimed by any governmental authority to be due and owing and adequate provision has been made for taxes payable for any completed fiscal period for which tax returns are not yet required and there are not agreements, waivers, or other arrangements providing for an extension of time with respect to the filing of any tax return or payment of any tax, governmental charge or deficiency by the Corporation or any of the Material Subsidiaries and to the Corporation’s knowledge there are no actions, suits, proceedings, investigations or claims threatened or pending against the Corporation or any of the Material Subsidiaries in respect of taxes, governmental charges or assessments or any matters under discussion with any governmental authority relating to taxes, governmental charges or assessments asserted by any such authority;

 

  (q) the issued and outstanding Common Shares are listed and posted for trading on the Exchange and the Corporation is in compliance in all material respects with the by-laws, rules and regulations of the Exchange;

 

  (r) the minute books of the Corporation and each of its Material Subsidiaries are true and correct in all material respects and contain all material minutes of all meetings and all the resolutions of directors and shareholders thereof;

 

  (s) the Corporation is a “reporting issuer” or has equivalent status in each of the provinces of British Columbia, Alberta, Manitoba and Ontario within the meaning of the applicable securities laws in such provinces;

 

  (t) CIBC Mellon Trust Company at its principal offices in the City of Calgary and the City of Toronto, is the duly appointed registrar and transfer agent of the Corporation with respect to the Common Shares and the Convertible Debentures;

 

  (u) other than as provided for in this agreement, the Corporation has not incurred any obligation or liability, contingent or otherwise, for brokerage fees, finder’s fees, agent’s commission or other similar forms of compensation with respect to the Offering;

 

  (v) no Securities Commission or any other securities commission or similar regulatory authority has issued any order which is currently outstanding preventing or suspending trading of any securities of the Corporation; and, the Corporation is entitled to avail itself of the applicable prospectus exemptions available under such Applicable Securities Laws in respect of the trades in its securities to Subscribers of Convertible Debentures resident in the Selling Jurisdictions as contemplated by this agreement;

 

  (w) the Corporation is not in default of any material requirement of Applicable Securities Laws;

 

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  (x) as at the date of this agreement, no executive officer, director or shareholder owning in excess of 10% of the outstanding Common Shares of the Corporation has advised the Corporation of their intention to sell any securities of the Corporation;

 

  (y) the books of account and other records of the Corporation and its subsidiaries, whether of a financial or accounting nature or otherwise, have been maintained in accordance with prudent business practices;

 

  (z) the Corporation made available to Netherland, Sewell, prior to the issuance of the Netherland, Sewell Report, for the purpose of preparing such report, all information requested by Netherland, Sewell, which information did not contain any material misrepresentation at the time such information was so provided; and the Corporation believes that the Netherland, Sewell Report reasonably presents in all material respects the aggregate quantity and pre-tax present worth value of estimated future net revenue values of oil and natural gas reserves of the Corporation as at the effective date thereof in respect of the reserves information therein based upon information available in respect of such reserves at the time such report was prepared and the pricing and cost assumptions contained therein;

 

  (aa) the Corporation is eligible to issue securities that will be subject to a four month hold period pursuant to Multilateral Instrument 45-102 Resale of Securities, subject to the other conditions imposed thereby;

 

  (bb) as of December 31, 2003, to the best of its knowledge, after due inquiry, the Corporation does not have more than 500 shareholders, and not more than 300 shareholders resident in the United States and the Corporation is not in breach of any reporting obligations under the United States Securities and Exchange Act of 1934;

 

  (cc) no reorganization, amalgamation, merger, acquisition or disposition of assets, except those in the ordinary course of business, by the Corporation or other change in the business, operations or capital of the Corporation (other than the transactions contemplated herein) is pending which could reasonably be expected to have a material adverse effect on the market price or value of the Convertible Debentures or the Common Shares; and

 

  (dd) although it does not warrant title, the Corporation does not have reason to believe that it and its Material Subsidiaries do not have title to or the right to produce and sell its petroleum, natural gas and related hydrocarbons (for the purposes of this clause, the foregoing are referred to as the “Interests”) subject always to the terms of applicable agreements, laws, regulations, order and directives; and the Corporation does represent and warrant that the Interests are free and clear of adverse claims created by, through or under the Corporation or its Material Subsidiaries, except as disclosed in the Public Record or those arising in the ordinary course of business, which are not material in the aggregate, and, to the knowledge of the Corporation, the Corporation and its Material Subsidiaries holds its Interests under valid and subsisting leases, licenses, permits, concessions, concession agreements, contracts, subleases, reservations or other agreements;

 

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ARTICLE 6

COVENANTS

 

6.1 The Corporation further agrees that:

 

  (a) the Corporation will timely perform all of the obligations to be performed by it under this agreement, the Indenture and the Subscription Agreements;

 

  (b) prior to the filing of the Registration Statement, the Corporation will distribute to the Agent and the Agent’s counsel a draft of the Registration Statement and allow the Agent to comment on the Registration Statement and conduct all due diligence which the Agent may reasonably require in connection with the filing of the Registration Statement;

 

  (c) the Registration Statement, if filed with the SEC, will, upon its date of effectiveness, fully comply, in all material respects, with the requirements of Applicable Securities Laws and all information and statements contained therein will be true and correct in all material respects;

 

  (d) during the period commencing with the date hereof and ending one year from the date hereof, the Corporation will promptly inform the Agent in writing of the full particulars of:

 

  (i) The occurrence of a material fact or event which, in any such case, is, or may be, of such a nature as to render any part of the Public Record, as it exists as of the date hereof, untrue, false or misleading in a material respect, result in a misrepresentation in any part of the Public Record or result in any part of the Public Record not complying with Applicable Securities Laws; or

 

  (ii) the discovery by the Corporation of any material misrepresentation in any part of the Public Record, as it exists as of the date hereof;

 

  (e) during the period commencing on the date hereof and ending on the day which is 30 days after the Closing Date, the Corporation will not, without the prior written consent of the Agent, (such consent not to be unreasonably withheld), issue, or announce the issue or intended issue of, any Common Shares or securities convertible or exchangeable into Common Shares other than pursuant to the Corporation’s stock option plan or to satisfy existing instruments issued and outstanding as at the date hereof;

 

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  (f) during the period commencing with the date hereof and ending at the time upon which the Registration Statement has been declared effective, the Corporation will promptly inform the Agent of:

 

  (i) any request of any Securities Commission or of the SEC for any amendment to the Public Record or the Registration Statement or for any additional information which may be material to the distribution of the Convertible Debentures or the Common Shares issuable upon conversion of the Convertible Debentures, or

 

  (ii) the issuance by any Securities Commission, the SEC, the Exchange or by any other competent authority of any order to cease or suspend trading of any securities of the Corporation, or of the institution or threat of institution of any proceedings for that purpose;

 

  (g) the Corporation shall, if applicable, send written notice to each holder of record of the Convertible Debentures advising of the date the Registration Statement has become effective, together with a copy of the prospectus included as part of the Registration Statement. Such notice shall be sent by prepaid registered mail to each holder of the Convertible Debentures at the address of each such holder appearing in the register of Convertible Debentures maintained pursuant to the Indenture within three business days after the date of the Registration Statement has become effective;

 

  (h) the Corporation shall make all necessary arrangements with the Exchange so that the Common Shares issuable upon conversion of the Convertible Debentures and upon exercise of the Broker’s Warrants shall be listed and posted for trading on the Exchange as soon as practicable after the Closing Time;

 

  (i) the Corporation shall cause the Transfer Agent to make all necessary arrangements for the exchange (at the cost of the Corporation, other than any applicable transfer taxes) of the definitive certificates representing the Convertible Debentures delivered under subparagraph 8.l(d) for certificates representing, in the aggregate, the same aggregate principal amount of Convertible Debentures in such denominations, registered in such names and to be released at such of the principal offices of the Transfer Agent, as the Agent may direct at any time and from time to time within 45 days of the Closing Date, provided such exchanges are pursuant to exempt trades under Applicable Securities Laws; and

 

  (j) the Corporation shall use its commercially reasonable efforts to maintain its status as a reporting issuer not in default of any Applicable Securities Laws until the first anniversary of the Closing Date in the Selling Jurisdictions in which it is or in which it becomes a reporting issuer.

 

ARTICLE 7

CLOSING

 

7.1 The sale of the Convertible Debentures shall be completed at the Closing Time at the offices of the Corporation’s Counsel in Calgary, Alberta or at such other place as the Corporation and the Agent may agree. Subject to the satisfaction of the conditions set forth in Article 8, the Agent, on the Closing Date, shall deliver:

 

  (a) to the Corporation, all completed Subscription Agreements (including any applicable documents specifically referred to in the Subscription Agreements);

 

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  (b) to the Corporation, a private placement questionnaire and undertaking as required by the Exchange and in the form attached to the Subscription Agreements executed by each of the Subscribers and such other documents referred to in paragraph 2.3 hereof; and

 

  (c) to the Corporation, a certified cheque, bank draft or wire transfer payable to the Corporation at par in an amount equal to the aggregate of all subscriptions for Convertible Debentures delivered to and accepted by the Corporation;

 

against delivery by the Corporation of the certificates referred to in subparagraph 8.1(d), a certified cheque, bank draft or wire transfer payable to the Agent representing the Agent’s fees set forth in paragraph 9.1(a) hereof and the Broker’s Warrants set forth in paragraph 9.1(b) hereof, together with such other documents and actions required pursuant to paragraph 8.1 hereof.

 

The Corporation may not reject any properly completed Subscription Agreements which are in compliance with Applicable Securities Laws unless the aggregate principal amount of Convertible Debentures subscribed for pursuant to all Subscription Agreements tendered by the Agent exceeds the maximum aggregate principal amount of Convertible Debentures to be sold under this agreement, in which case, Subscription Agreements representing the over-allotment shall, after consultation with the Agent, be rejected.

 

ARTICLE 8

CONDITIONS OF CLOSING

 

8.1 The obligations of the Agent hereunder shall be conditional upon the Agent receiving, and the Agent shall have the right on the Closing Date on behalf of Subscribers to withdraw all subscriptions for Convertible Debentures delivered and not previously withdrawn by Subscribers unless the Agent receives on the Closing Date:

 

  (a) a legal opinion of the Corporation’s Counsel and of the Agents’ Counsel, in form and substance reasonably satisfactory to the Agent, with respect to such matters as the Agent may reasonably request relating to the Offering, including, without limitation: the due incorporation and valid existence of the Corporation and its Material Subsidiaries; the due registration or qualification to carry on business under the laws of each jurisdiction in which the Corporation and its Material Subsidiaries carries on a material portion of its business as now conducted by it; the corporate power and capacity of the Corporation; the authorized, issued and outstanding capital of the Corporation; the Convertible Debentures and the Broker’s Warrants having been duly authorized for issuance and the Common Shares issuable upon conversion of the Convertible Debentures and upon exercise of the Broker’s Warrants having been duly authorized for issuance and when issued, issued as fully paid and non-assessable; the due and proper appointment of the Trustee and the Transfer Agent; the due authorization, execution, delivery and

 

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enforceability (subject to usual qualifications), of this agreement, the Indenture, the Subscription Agreements and the Broker’s Warrant Certificate; the fulfilment of the terms hereof and thereof including the sale and delivery of the Convertible Debentures and the Broker’s Warrant Certificate, do not and will not result in a breach of, and do not and will not create a set of facts which, after notice or lapse of time or both, conflict with any terms, conditions or provisions of the articles of the Corporation, the by-laws of the Corporation, any notes or indentures issued by the Corporation or any of its Material Subsidiaries, any judgment decree, order, statute, rule or regulation applicable to the Corporation or its Material Subsidiaries or, of which such counsel is aware, any resolutions of the directors or shareholders of the Corporation; compliance with all Applicable Securities Laws in connection with the distribution of the Convertible Debentures in the Provinces of Alberta and Ontario and in the United States and the issuance of the Broker’s Warrants including, without limitation, the receipt of all necessary regulatory approvals (including, without limitation, the conditional approval of the Exchange); the first trade in Convertible Debentures and the Common Shares issuable upon conversion of the Convertible Debentures or upon exercise of the Broker’s Warrants; the issuance of the Common Shares upon conversion of the Convertible Debentures and upon exercise of the Broker’s Warrants; the Common Shares being listed and posted for trading on the Exchange and the Common Shares issuable upon conversion of the Convertible Debentures and upon exercise of the Broker’s Warrants having been conditionally approved for listing on the Exchange; and all such other matters, as the Agent and Agent’s Counsel may reasonably request. It is understood that the Corporation’s Counsel may rely on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Alberta and on certificates of officers of the Corporation and governmental authorities, the transfer agent of the Common Shares and the Exchange as to relevant matters of fact. It is further understood that the Agent’s Counsel may rely on the opinion of the Corporation’s Counsel as to matters which specifically relate to the Corporation;

 

  (b) a certificate of the Corporation dated the Closing Date, addressed to the Agent and signed on the Corporation’s behalf by the Chief Executive Officer of the Corporation, or other senior officers of the Corporation acceptable to the Agent, acting reasonably, certifying that:

 

  (i) the Corporation has complied with and satisfied all covenants, terms and conditions of this agreement on its part to be complied with and satisfied at or prior to the Closing Time;

 

  (ii) the representations and warranties of the Corporation set forth in this agreement and, where applicable, in the Subscription Agreements are true and correct in all material respects at the Closing Time, as if made at such time;

 

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  (iii) no event of the nature referred to in subparagraphs 10.2(a) or (e) has occurred or to the knowledge of such officers is pending, contemplated or threatened; and

 

  (iv) such other matters as may be reasonably requested by the Agent or Agent’s Counsel;

 

  (c) evidence satisfactory to the Agent that the Corporation has obtained all necessary approvals of the Exchange for the listing of the Common Shares issuable upon conversion of the Convertible Debentures and upon exercise of the Broker’s Warrants, subject only to the filing of any documents and payment of any fees which may be required by the Exchange;

 

  (d) definitive certificates representing, in the aggregate, all of the Convertible Debentures subscribed for registered in such name or names as the Agent shall notify the Corporation in writing not less than 24 hours prior to the Closing Time provided such certificates registered in such names may, subject to receipt by the Corporation and the Transfer Agent of a satisfactory indemnity, be delivered in advance of the Closing Date to the Agent or such other parties in such locations as the Agent may direct and the Agent and the Corporation may agree upon;

 

  (e) duly completed and executed copies of the Subscription Agreements, each in form and substance reasonably satisfactory to the Agent and the Agent’s Counsel;

 

  (f) a duly executed copy of the Indenture in form and substance reasonably satisfactory to the Agent and the Agent’s Counsel;

 

  (g) the fee provided for in paragraph 9.1(a); and

 

  (h) the Broker’s Warrant Certificate representing the Broker’s Warrants provided for in subparagraph 9.1(b).

 

ARTICLE 9

FEES AND EXPENSES

 

9.1 In consideration for their services hereunder, the Corporation agrees to:

 

  (a) pay to the Agent at the Closing Time a fee equal to the amount of 6.0% of the gross proceeds from sales of Convertible Debentures to Subscribers, being the amount of US$60.00 for each US$1,000 principal amount of Convertible Debentures sold, including any Convertible Debentures purchased by the Agent as principal hereunder. The foregoing fee may, at the sole option of the Agent, be deducted from the aggregate gross proceeds of the sale of the Convertible Debentures and withheld for the account of the Agent; and

 

  (b) grant to the Agent at the Closing Time that number of Broker’s Warrants equal to 4% of the aggregate principal amount of the Convertible Debentures issued pursuant to the Offering. Each Broker’s Warrant shall be exercisable for one Common Share at the exercise price of Cdn.$4.65 until 4:30 p.m. (Calgary time) on the date which is 18 months from the Closing Date.

 

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9.2 Whether or not the transactions contemplated herein shall be completed, all costs and expenses of or incidental to the distribution of the Convertible Debentures, including without limitation, all costs and expenses of or incidental to the preparation, filing and reproduction of the Registration Statement and also including the fees and expenses of Corporation’s Counsel, the fees and expenses of local agents’ counsel retained by Corporation’s Counsel, the fees and expenses of the Corporation’s auditors and the Corporation’s engineers, the reasonable fees and expenses of Agent’s Counsel (to a maximum of US$125,000 for fees and expenses incurred to the Closing Date), the reasonable disbursements of Agent’s Counsel, the reasonable out-of-pocket expenses of the Agent relating to this transaction and all other costs and expenses incurred by the Corporation relating to this transaction shall be borne by the Corporation.

 

ARTICLE 10

EARLY TERMINATION

 

10.1 All representations, warranties, covenants, terms and conditions of this agreement shall be construed as conditions, and any material breach or failure to comply with any such representation, warranty, covenant, term or condition shall entitle the Agent to terminate its obligation to distribute the Convertible Debentures by written notice to that effect given to the Corporation prior to the Closing Date. The Agent may waive in whole or in part any breach of, default under or non-compliance by the Corporation with, any representation, warranty, covenant, term or condition hereof, or extend the time for compliance therewith, without prejudice to any of its rights in respect of any other representation, warranty, covenant, term or condition hereof, or any other breach of, default under or non-compliance with any other representation, warranty, covenant, term or condition hereof, provided that any such waiver or extension shall be binding on the Agent only if the same is in writing.

 

10.2 In addition to any other remedies which may be available to the Agent, the Agent shall be entitled, at its option, to terminate and cancel, without any liability on the Agent’s part, the Agent’s obligations under this agreement if, prior to the Closing Time:

 

  (a) any order to cease or suspend trading in the Common Shares, or prohibiting or restricting the distribution of the Convertible Debentures, is made, or proceedings are announced or commenced for the making of any such order, by any Securities Commission or similar regulatory authority, the Exchange or any other competent authority, and has not been rescinded, revoked or withdrawn;

 

  (b) any inquiry, investigation (whether formal or informal) or other proceeding in relation to the Corporation, any of its Material Subsidiaries or any of their respective senior officers is announced, commenced or threatened by any Securities Commission or similar regulatory authority, the Exchange or any other competent authority or any order is issued under or pursuant to any statute of Canada or of any of the provinces of Canada, or any other applicable law or regulatory authority (unless based on the activities or alleged activities of the Agent or its sub-agents), or there is any change of law, regulation or policy or the

 

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interpretation or administration thereof, which, in the sole opinion of the Agent acting reasonably, operates to materially prevent or restrict trading in the Common Shares or the distribution of the Convertible Debentures and which has not been rescinded, revoked or withdrawn;

 

  (c) there shall occur an event, or the Agent’s due diligence investigations shall identify or discover an event, fact or circumstance, (actual, contemplated or threatened), which constitutes a material adverse change or any change in a material fact or occurrence of a material fact or event in respect of the business, operations, assets or financial condition of the Corporation as disclosed in the Public Record, which in the Agent’s sole opinion, acting reasonably, could be expected to have a material adverse effect on the market price or value of the Convertible Debentures;

 

  (d) there should develop, occur or come into effect or existence any event, action, state, condition or major financial occurrence of national or international consequence or any action by government, law or regulation, enquiry or other such occurrence which, in the sole opinion of the Agent acting reasonably, materially adversely affects the Canadian financial markets or the business, operations or affairs of the Corporation such that it would not be practicable to market the Convertible Debentures or which would render the Convertible Debentures unsaleable;

 

  (e) the Corporation shall be in breach of, default under or non-compliance with any material representation, warranty, term or condition of this agreement or the Subscription Agreements; or

 

  (f) the state of the financial markets or of the oil and gas business is such that the Convertible Debentures cannot, in the sole opinion of the Agent, acting reasonably, be successfully marketed.

 

10.3 The Agent may exercise any or all of the rights provided for in paragraphs 8.1, 10.1 or 10.2 notwithstanding any act or thing taken or done by the Agent or any action by the Agent, whether before or after the occurrence of any material change, including, without limitation, any act of the Agent related to the Offering or continued offering of the Convertible Debentures for sale other than any unlawful act relating solely to the Agent and the Agent shall only be considered to have waived or be estopped from expressing or relying upon any of their rights under or pursuant to paragraphs 8.1, 10.1 or 10.2 if such waiver or estoppel is in writing and specifically waives or estops such exercise or reliance.

 

10.4 Any termination pursuant to the terms of this agreement shall be effected by notice in writing delivered to the Corporation; provided that no termination shall discharge or otherwise affect any obligation of the Corporation under paragraphs 9.2, 11.1, 11.2 or 11.3. The rights of the Agent to terminate its obligations hereunder are in addition to, and without prejudice to, any other remedies it may have.

 

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ARTICLE 11

INDEMNIFICATION AND CONTRIBUTION

 

11.1 The Corporation shall indemnify and save the Agent, and each of the Agent’s shareholders, directors, officers, employees, advisors and agents (collectively “Indemnified Persons” and singularly an “Indemnified Person”) harmless against and from all liabilities, claims, demands, losses (other than losses of profit in connection with the distribution of the Convertible Debentures), costs, damages and expenses (collectively, the “Liabilities”) to which such persons or companies may be subject or which such persons or companies may suffer or incur, whether under the provisions of any statute or otherwise, in any way caused by, or arising directly or indirectly from or in consequence of:

 

  (a) any information or statement contained in the Public Record or in the Registration Statement (other than information or statements relating solely to the Agent and furnished to the Corporation by the Agent expressly for inclusion in the Public Record or in the Registration Statement) which is or is alleged to be untrue or any omission or alleged omission to provide any information or state any fact the omission of which makes or is alleged to make any such information or statement untrue or misleading in light of the circumstances in which it was made;

 

  (b) any misrepresentation or alleged misrepresentation contained in the Public Record or in the Registration Statement (other than any misrepresentation or alleged misrepresentation arising from information or statements relating solely to the Agent and furnished to the Corporation expressly for inclusion in the Public Record or in the Registration Statement);

 

  (c) any prohibition or restriction of trading in the securities of the Corporation or any prohibition or restriction affecting the distribution of the Convertible Debentures or the Common Shares issuable upon conversion of the Convertible Debentures or upon exercise of the Broker’s Warrants imposed by any competent authority if such prohibition or restriction is based on any misrepresentation or alleged misrepresentation of a kind referred to in subparagraph 11.1(b);

 

  (d) any order made or any inquiry, investigation (whether formal or informal) or other proceeding commenced or threatened by any one or more competent authorities into the affairs of the Corporation relating to or materially adversely affecting the distribution of the Convertible Debentures or the Common Shares issuable upon conversion of the Convertible Debentures or upon exercise of the Broker’s Warrants other than any such order, inquiry, investigation or other proceeding based solely upon the activities or alleged activities of the Agent (or selling group members, if any); or

 

  (e) any material breach of, default under or non-compliance by the Corporation with any representation, warranty, covenant, term or condition of this agreement, the Indenture or any requirement of Applicable Securities Laws;

 

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provided that, in the event a court of competent jurisdiction in a final judgment from which no appeal can be made shall determine that the proceedings or liabilities resulting in the claim of indemnity hereunder resulted from the gross negligence, fraud or wilful misconduct of the Indemnified Person claiming indemnity hereunder or that such Indemnified Person breached, defaulted under or failed to comply with any material representation, warranty, term, condition or covenant of this agreement, this indemnity shall not apply.

 

With respect to any person or corporation in respect of which indemnification is or might reasonably be considered to be provided for in this Article 11 and who is not a party to this agreement, the Agent shall obtain and hold the rights and benefits of this Article 11 in trust for and on behalf of such person or corporation.

 

The Corporation agrees that in case any legal proceedings or investigation shall be brought against or initiated against the Corporation by any governmental commission, regulatory authority, the Exchange, a court, or other entity having regulatory authority, and an Indemnified Person or other representatives of the Agent shall be required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered to the Corporation by the Agent, the Corporation shall pay the Agent the reasonable out-of-pocket expenses as they occur unless such proceedings or investigations shall be brought or initiated as a result of any actions or inaction of the Agent, the Indemnified Persons or any of them, or any selling group members, if any.

 

11.2 If any claim contemplated by paragraph 11.1 shall be asserted against any Indemnified Person, such Indemnified Person shall notify the Corporation as soon as possible of the nature of such claim and the Corporation shall be entitled (but not required) to assume the defense of any suit brought to enforce such claim, provided however, that the defense shall be through legal counsel selected by the Corporation and acceptable to the Indemnified Person acting reasonably and that no settlement may be made by the Corporation or the Indemnified Person without the prior written consent of the other, such consent not to be unreasonably withheld. The Indemnified Person shall have the right to retain its own counsel in any proceeding relating to a claim contemplated by paragraph 11.1 if:

 

  (a) the Indemnified Person has been advised by counsel in writing that there are actual or potential conflicting interests between the Corporation and the Indemnified Person (in which case the Corporation shall not have the right to assume the defence of such proceedings on the Indemnified Person’s behalf);

 

  (b) the Corporation shall not have taken the defence of such proceedings and employed counsel within 10 days after notice of commencement of such proceedings; or

 

  (c) the employment of such counsel has been authorized by the Corporation in connection with the defence of such proceedings;

 

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and, in any such event, the reasonable fees and expenses of such Indemnified Person’s counsel (on a solicitor and his client basis) shall be paid by the Corporation provided that in no event shall the Corporation be required to pay the fees and disbursements of more than one set of counsel in any single jurisdiction for all Indemnified Persons.

 

11.3 In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in this agreement is due in accordance with its terms but is, in whole or in part, for any reason, held by a court to be unavailable from the Corporation on grounds of policy or otherwise, each of the Corporation and the party or parties seeking indemnification shall contribute to the aggregate Liabilities (including legal or other expenses reasonably incurred in connection with the investigation or defence of the same) to which they may be subject or which they may suffer or incur:

 

  (a) in such proportion as is appropriate to reflect the relative benefit received by the Corporation on the one hand, and by the party or parties seeking indemnity on the other hand, from the Offering; or

 

  (b) if the allocation provided by subparagraph 11.3(a) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in subparagraph 11.3(a) above but also to reflect the relative fault of the party or parties seeking indemnity, on the one hand, and the parties from whom indemnity is sought, on the other hand, in connection with the statements or omissions or other matters which resulted in such Liabilities, as well as any other relevant equitable considerations.

 

The relative benefits received by the Corporation, on the one hand, and the Agent on the other hand shall be deemed to be in the same proportion that the total proceeds of the Offering received by the Corporation (net of Agent’s fees but before deducting expenses) bear to the fees received by the Agent. In any event, the Corporation and the Agent agree that any contribution of the Agent should be limited to the fees paid to the Agent in connection with the distribution of the Convertible Debentures. The Corporation and the Agent agree that it would not be just and equitable if contributions pursuant to this agreement were determined by any other method of allocation that those referred to above.

 

The Corporation hereby waives its right to recover contribution from the Agent with respect to any liability of the Corporation by reason of or arising out of any misrepresentation in the Public Record or in the Registration Statement provided, however, that such waiver shall not apply in respect of liability caused or incurred by reason of or arising out of (i) any misrepresentation which is based upon information relating solely to the Agent contained in such document and furnished to the Corporation by the Agent expressly for inclusion in such document; or (ii) any failure by the Agent to provide to prospective purchasers of Convertible Debentures any document which the Corporation is required to provide to such prospective purchasers and which the Corporation has provided to the Agent to forward to such prospective purchasers.

 

The rights to contribution provided in this paragraph 11.3 shall be in addition to, and without prejudice to, any other right to contribution which the Corporation and the Agent may have.

 

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11.4 The provisions of this Article 11 shall supercede and replace in its entirety the provisions of Schedule “A” to that certain engagement letter between the Corporation and the Agent dated October 11, 2004, as amended.

 

ARTICLE 12

SURVIVAL OF REPRESENTATIONS, WARRANTIES,

COVENANTS, TERMS AND CONDITIONS

 

12.1 It is understood that all representations, warranties, covenants, indemnities, terms and conditions herein or contained in certificates or documents submitted pursuant to or in connection with the transactions contemplated herein shall survive the payment by the purchasers for the Convertible Debentures and the termination of this agreement and shall continue in full force and effect for the benefit of the Agent regardless of any investigation by or on behalf of the Agent with respect thereto.

 

ARTICLE 13

NOTICES

 

13.1 Any notice or other communication to be given hereunder shall, in the case of notice to be given to the Corporation, be addressed to the Corporation to Mr. J. Russell Porter, at the address set forth above for the Corporation, Telecopy No. (989) 773-0006:

 

with a copy to:

 

Bumet, Duckworth & Palmer LLP, 1400

350-7th Avenue S.W.

Calgary, Alberta, T2P 3N9

Attention: William S. Maslechko

Telecopy No. (403) 260-0330

 

and to:

 

Vinson & Elkins LLP

1001 Fannin, Suite 2300

Houston, TX

Attention: T. Mark Kelly

Telecopy No. (713) 615-5531

 

and, in the case of notice to be given to the Agent, subject to section 13.1, be addressed to:

 

Westwind Partners Inc.

70 York Street, 10 th Floor

Toronto, Ontario M5J 1S9

Attention: Nick Pocrnic

Fax No.: (416) 815-1808

 

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with a copy to:

 

Macleod Dixon LLP

3700, 400 – 3rd Avenue S.W.

Calgary, Alberta T2P 4H2

Attention: Charles W. Berard

Fax No.: (403) 264-5973

 

Any such notice or other communication shall be in writing and may be given by telefax or delivery; and shall be deemed to be have been given upon acknowledgement of receipt (provided that such time falls on a business day, otherwise notice shall be deemed to have been so given on the next business day) or upon receipt by a responsible officer of the addressee if delivered.

 

ARTICLE 14

AGENT’S COVENANTS

 

14.1 The Agent covenants and agrees with the Corporation that it shall:

 

  (a) offer the Convertible Debentures for sale on behalf of the Corporation only to Subscribers who will purchase such Convertible Debentures under such exemptions as may be available under the Applicable Securities Laws;

 

  (b) conduct activities in connection with the proposed offer and sale of the Convertible Debentures in compliance with all Applicable Securities Laws and cause a similar covenant to be contained in any agreement entered into with any member of the Selling Dealer Group; and, without limitation, agrees that it will not make available to prospective purchasers of Convertible Debentures any document or material which would constitute an offering memorandum as defined under Applicable Securities Laws other than the Offering Memorandum;

 

  (c) not solicit subscriptions for the Convertible Debentures, trade in Convertible Debentures or otherwise do any act in furtherance of a trade of Convertible Debentures outside of the Selling Jurisdictions and without the express written consent of the Corporation;

 

  (d) not advertise the proposed Offering or sale of the Convertible Debentures in the printed media of general and regular paid circulation, radio, television or telecommunications including electronic display;

 

  (e) provide to the Corporation on the Closing Date all information necessary to allow the Corporation to file with each of the Securities Commissions, if required, a report of trade in accordance with Applicable Securities Laws within 10 days of the Closing Date; and

 

  (f) obtain from each Subscriber an executed Subscription Agreement and all applicable undertakings, questionnaires and other forms required under Applicable Securities Laws of the Selling Jurisdictions or requirements of stock exchanges, including the Exchange, and supplied to the Agent by the Corporation for completion in connection with the distribution of the Convertible Debentures.

 

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ARTICLE 15

GENERAL

 

15.1 The Agent makes the representations, warranties and covenants in Schedule “B” hereto and agrees on behalf of itself and its United States affiliate, for the benefit of the Corporation, to comply with the U.S. selling restrictions imposed by the laws of the United States and set forth in Schedule “B” hereto, which forms part of this agreement. The Agent also agrees to obtain such an agreement from each member of the Selling Dealer Group (as defined in Schedule “B” hereto).

 

15.2 The Corporation represents, warrants and agrees that (a) none of the Corporation, its subsidiaries or any person acting on its or their behalf (other than the Agent and members of the Selling Dealer Group), has engaged or will engage in any Directed Selling Efforts (within the meaning of Regulation S (as defined in Schedule “B” hereto) with respect to the Convertible Debentures; (b) it and they have complied and will comply with the requirements for an “offshore transaction”, as such term is defined in Regulation S with respect to sales made outside of the United States; (c) none of the Corporation, its subsidiaries or any person acting on its or their behalf (other than the Agent and members of the Selling Dealer Group), has offered or will offer to sell any of the Convertible Debentures by means of any form of general solicitation or general advertising (as those terms are used in Regulation D (as defined in Schedule “B” hereto )) or in any manner involving a public offering within the meaning of section 4(2) of the U.S. Securities Act (as defined in Schedule “B” hereto) with respect to offers or sales made within the United States; (d) it is a “domestic issuer” within the meaning of Regulation S.

 

15.3 If one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this agreement, but this agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein.

 

15.4 This agreement shall be governed by and construed in accordance with the laws of the Province of Alberta and the laws of Canada applicable therein and each of the parties hereto irrevocably attorns to the jurisdiction of the courts of the Province of Alberta.

 

15.5 Time is of the essence of this agreement.

 

15.6 This agreement may be executed in one or more counterparts and by facsimile each of which so executed shall constitute an original and all of which together shall constitute one and the same agreement.

 

15.7 This agreement represents the entire agreement of the parties hereto relating to the subject matter hereof and there are no representations, warranties, covenants or other agreements relating to the subject matter hereof except as stated or referred to herein.

 

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15.8 It is understood that the terms and conditions of this agreement supersede any previous verbal or written agreement between the Agent and the Corporation with respect to the subject matter hereof.

 

15.9 Except as specifically provided in the Subscription Agreements, no person who is not a party executing this agreement shall have any benefits or rights inuring from this agreement except that Indemnified Persons shall be entitled to the benefits of the provisions of Article 11 hereof.

 

If the foregoing is in accordance with your understanding and is agreed to by you, please confirm your acceptance by signing the enclosed copies of this letter at the place indicated and by returning the same to Agent’s Counsel.

 

WESTWIND PARTNERS INC.
Per:  

/s/ Nick Pocrnic


    NICK POCRNIC
    V.P. Equity Capital Markets

 

ACCEPTED AND AGREED to effective as of the date of this Agreement.

 

GASTAR EXPLORATION LTD.
Per:  

 


 

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If the foregoing is in accordance with your understanding and is agreed to by you, please confirm your acceptance by signing the enclosed copies of this letter at the place indicated and by returning the same to Agent’s Counsel.

 

WESTWIND PARTNERS INC.
Per:  

 


 

ACCEPTED AND AGREED to effective as of the date of this Agreement.

 

GASTAR EXPLORATION LTD.
Per:  

/s/ J. Russell Porter


    J. Russell Porter
    President & C.E.O.


Schedule “A” to an Agency Agreement dated November 12, 2004

between Gastar Exploration Ltd. and Westwind Partners Inc., as Agent

 

MATERIAL SUBSIDIARIES OF GASTAR EXPLORATION LTD.

 

NAME


 

JURISDICTION OF INCORPORATION  


First Sourcenergy Wyoming, Inc.   Michigan
First Texas Development, Inc.   Michigan
Squaw Creek, Inc.   Delaware
Bossier Basin LLC   Delaware
First Source Gas LP   Delaware


Schedule “B” to an Agency Agreement dated November 12, 2004

between Gastar Exploration Ltd. and Westwind Partners Inc., as Agent

 

U.S. SELLING RESTRICTIONS

 

Capitalized terms used but not defined in this Schedule “B” shall have the meaning ascribed thereto in the agency agreement (the “Agency Agreement”) to which this Schedule “B” is attached.

 

1. For the purpose of this Schedule “B”, the following terms shall have the meanings indicated:

 

  (a) “Directed Selling Efforts” means directed selling efforts as that term is defined in Regulation S. Without limiting the foregoing, but for greater clarity in this Schedule “B”, it means, subject to the exclusions from the definition of directed selling efforts contained in Regulation S, any activity undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the Securities, and includes the placement of any advertisement in a publication with a “general circulation in the United States” that refers to the offering of the Securities;

 

  (b) “General Solicitation” and “General Advertising” means “general solicitation” and “general advertising”, respectively, as used in Rule 502(c) of Regulation D, including, without limitation, advertisements, articles, notices or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or any seminar or meeting whose attendees had been invited by general solicitation or general advertising;

 

  (c) “Institutional Accredited Investor” means those institutional “accredited investors” specified in Rule 501(a)(l), (2), (3) or (7) of Regulation D;

 

  (d) “Regulation D” means Regulation D adopted by the SEC under the U.S. Securities Act;

 

  (e) “Regulation S” means Regulation S adopted by the SEC under the U.S. Securities Act;

 

  (f) “SEC” means the United States Securities and Exchange Commission;

 

  (g) “Securities” means the Convertible Debentures and the Common Shares issuable upon conversion of the Debentures;

 

  (h) “Selling Dealer Group” means dealers or brokers other than the Agent and its U.S. affiliate who participate in the offer and sale of Securities pursuant to the Agency Agreement;


  (i) “Substantial U.S. Market Interest” means “substantial U.S. market interest” as that term is defined in Regulation S;

 

  (j) “United States” means the United States of America, its territories and possessions, any state of the United States, and the District of Columbia;

 

  (k) “U.S. Exchange Act” means the United States Securities Exchange Act of 1934, as amended;

 

  (l) “U.S. Person” means a “U.S. person” as that term is defined in Regulation S; and

 

  (m) “U.S. Securities Act” means the United States Securities Act of 1933, as amended.

 

2. The Agent acknowledges that the Securities have not been registered under the U.S. Securities Act, and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. Persons, except in accordance with Regulation S pursuant to registration of the Securities under the U.S. Securities Act or pursuant to an exemption from the registration requirements of the U.S. Securities Act. The Agent agrees that it, its U.S. affiliates and each member of the Selling Dealer Group will offer and sell the Securities only in accordance with Rule 903 of Regulation S or in accordance with the restrictions set forth in paragraphs 3 and 4 of this Schedule “B”. Accordingly, neither the Agent nor its U.S. affiliate or any Selling Dealer Group member have engaged or will engage in any Directed Selling Efforts, and the Agent, its U.S. affiliates and each Selling Group member have complied and will comply with the offering restriction requirements of Regulation S. The Agent, its U.S. affiliates and each Selling Group Member agrees not to engage in hedging transactions with regard to the Securities, unless in compliance with the U.S. Securities Act.

 

The Agent acknowledges that it has not entered and will not enter into any contractual arrangement with respect to the distribution of the Securities, except (i) with its affiliates, (ii) with members of the Selling Dealer Group in accordance with this paragraph 2 or (iii) otherwise with the prior written consent of the Corporation.

 

3. The Agent represents, warrants and covenants to the Corporation that, in connection with all sales of the Securities in the United States or to, or for the account of, a U.S. Person:

 

  (a) its U.S. affiliate is a duly registered broker or dealer with the SEC and is a member of, and in good standing with, the National Association of Securities Dealers, Inc. on the date such representation is given;

 

  (b) all offers and sales of the Securities in the United States will be effected by Westminster Securities Corporation (a “ U.S. Placement Agent ”) in accordance with all applicable U.S. broker dealer requirements;

 

  (c) all offers and sales of the Securities in the United States were made to Institutional Accredited Investors;

 

- 2 -


  (d) it has not used and will not use any written material other than the Offering Memorandum (such document, the “Offering Document” ), and each offeree of the Securities in the United States has been sent a copy of the Offering Document;

 

  (e) immediately prior to transmitting the Offering Document, it had reasonable grounds to believe and did believe that each offeree was an Institutional Accredited Investor, and, on the date hereof, it continues to believe that each U.S. Purchaser (as defined below) is an Institutional Accredited Investor;

 

  (f) neither it nor its representatives have used, and none of such persons will use, any form of General Solicitation or General Advertising in connection with the offer or sale of the Securities in the United States or to U.S. persons or have offered or will offer to sell any Securities in any manner involving a public offering within the meaning of Section 4(2) of the U.S. Securities Act; and

 

  (g) prior to any sale of Securities in the United States, it will cause each purchaser thereof (each, a “U.S. Purchaser” ) to sign a Subscription Agreement in the form provided to the Agent by the Corporation containing representations, warranties and agreements to the Corporation substantially similar to those set forth in paragraph 4 of this Schedule “B”.

 

4. The Agent agrees that prior to any sale of Securities in the United States, it shall cause each U.S. Purchaser to execute a Subscription Agreement in the form provided to the Agent by the Corporation whereby it represents, warrants and agrees in writing to the Corporation that such U.S. Purchaser:

 

  (a) is authorized to consummate the purchase of the Securities;

 

  (b) understands that the Securities have not been registered under the U.S. Securities Act and that the sale is being made to Institutional Accredited Investors in reliance on a private placement exemption;

 

  (c) is an Institutional Accredited Investor or, if the Securities are being purchased for one or more investor accounts for which it is acting as fiduciary or agent, each such investor account is an Institutional Accredited Investor and such U.S. Purchaser or investor account is purchasing the Securities for its own account for investment and not with a view towards the resale of the Securities;

 

  (d) agrees that if it decides to offer, sell or otherwise transfer or pledge all or any part of the Securities, it will not offer, sell or otherwise transfer or pledge any of such Securities (other than pursuant to an effective registration statement under the U.S. Securities Act), directly or indirectly, unless:

 

  (i) the sale is to the Corporation; or

 

  (ii) the sale is made outside the United States in accordance with the requirements of Regulation S and in compliance with applicable local laws and regulations; or

 

- 3 -


  (iii) the sale is made pursuant to the exemption from registration under the U.S. Securities Act provided by Rule 144 thereunder; or

 

  (iv) the Securities are sold in a transaction that does not require registration under the U.S. Securities Act or any applicable United States state laws and regulations governing the offer and sale of securities, and it has furnished to the Corporation an opinion of counsel, of recognized standing reasonably satisfactory to the Corporation, to that effect; or

 

  (v) the sale is to an Institutional Accredited Investor and a purchaser’s letter containing representations, warranties and agreements substantially similar to those contained in such U.S. Purchaser’s Subscription Agreement (except that a subsequent purchaser’s letter need not contain the representation set forth in paragraph (f) below) is executed by the subsequent purchaser and delivered to the Corporation prior to the sale;

 

  (e) understands and acknowledges that the Securities are “restricted securities” as defined in Rule 144 under the U.S. Securities Act and upon the original issuance thereof, and until such time as the same is no longer required under applicable requirements of the U.S. Securities Act or state securities laws, the certificates representing the Securities, and all certificates issued in exchange therefor or in substitution thereof, shall bear the following legend:

 

“THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”) OR STATE SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF GASTAR EXPLORATION LTD. THAT SUCH SECURITIES MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO GASTAR EXPLORATION LTD., (B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH REGULATION S UNDER THE U.S. SECURITIES ACT, (C) INSIDE OR OUTSIDE THE UNITED STATES, PURSUANT TO THE EXEMPTION FROM REGISTRATION UNDER THE U.S. SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER, (D) TO A PERSON THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE U.S. SECURITIES ACT) PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, OR (E) PURSUANT TO A REGISTRATION STATEMENT EFFECTIVE UNDER THE U.S. SECURITIES ACT AND COVERING SUCH OFFER,

 

- 4 -


SALE OR TRANSFER (IT BEING UNDERSTOOD THAT THE ISSUER SHALL BE UNDER NO OBLIGATION TO FILE SUCH REGISTRATION STATEMENT). HEDGING TRANSACTIONS INVOLVING THE SECURITIES REPRESENTED HEREBY MAY NOT BE CONDUCTED EXCEPT IN COMPLIANCE WITH THE U.S. SECURITIES ACT.

 

A NEW CERTIFICATE BEARING NO LEGEND MAY BE OBTAINED FROM CIBC MELLON TRUST COMPANY UPON DELIVERY OF AN OPINION OF COUNSEL, IN A FORM SATISFACTORY TO CIBC MELLON TRUST COMPANY AND GASTAR EXPLORATION LTD., TO THE EFFECT THAT THE SALE OF THE SECURITIES REPRESENTED HEREBY IS BEING MADE IN COMPLIANCE WITH RULE 144 UNDER THE SECURITIES ACT TOGETHER WITH OTHER DOCUMENTATION REASONABLY REQUESTED BY CIBC MELLON TRUST COMPANY OR THE CORPORATION”;

 

provided , that if Debentures or Underlying Shares are being sold in compliance with the requirements of Rule 144 under the 1933 Act or pursuant to an effective registration statement under the 1933 Act, the above legend may be removed by delivery of (i) an opinion of counsel of recognized standing reasonably satisfactory to the Corporation to the effect that such Debentures or Underlying Shares held by it are being sold pursuant to Rule 144 of the 1933 Act or pursuant to an effective registration statement under the 1933 Act, as the case may be, and (ii) such other documentation reasonably requested by CIBC Mellon Trust Company or the Corporation;

 

provided, further, that if (i) it is not an “affiliate” (as defined in Rule 405 under the 1933 Act) of the Corporation, (ii) it has not been such an affiliate in the preceding three months, and (iii) at least two years (or such shorter period as may be permitted under Rule 144(k) or any successor rule) have elapsed since the later of the date the Debentures (or the original Debentures if the securities constitute Underlying Shares issued upon conversion of such original Debentures) were acquired from the Corporation or from an affiliate of the Corporation, then the above legend may be removed from any certificates representing such Debentures or Underlying Shares held by it by delivery to CIBC Mellon Trust Company of an opinion of counsel of recognized standing reasonably satisfactory to the Corporation, to the effect that any such Debentures or Underlying Shares held by it may be sold pursuant to Rule 144(k) (or any successor rule) of the 1933 Act and such legend is no longer required under applicable requirements of the 1933 Act or state securities laws;

 

- 5 -


and the Corporation shall use its reasonable best efforts to cause the registrar and transfer agent of the Corporation to remove the foregoing U.S. legend within three business days (excluding weekends and holidays) of receipt of the foregoing, as applicable; and

 

  (f) has received a copy of the Offering Document and has been afforded the opportunity (i) to ask such questions as it deemed necessary of, and to receive answers from, representatives of the Corporation concerning the terms and conditions of the offering of the Securities and (ii) to obtain such additional information which the Corporation possesses or can acquire without unreasonable effort or expense that is necessary to verify the accuracy and completeness of the information contained in the Offering Documents and that the U.S. Purchaser considered necessary in connection with its decision to invest in the Securities; and

 

  (g) acknowledges that it is not purchasing the Securities as a result of any General Solicitation or General Advertising.

 

5. At the closing, Westwind Partners Inc., together with its U.S. Placement Agent, will provide a certificate, substantially in the form of Exhibit I to this Schedule “B”, relating to the manner of the offer and sale of the Securities in the United States.

 

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EXHIBIT 1

Underwriters’ Certificate

 

In connection with the private placement of Convertible Senior Unsecured Debentures (the “Securities” ) of Gastar Exploration Ltd. (the “Corporation” ) with one or more U.S. institutional accredited investors (the “U.S. Purchasers” ) pursuant to [a] Subscription Agreements [s] , dated as of [ date ], the undersigned Westwind Partners Inc. (the “Agent” ) pursuant to the Agency Agreement, dated as of November 12, 2004, between Gastar Exploration Ltd. and the Agent (the “Agency Agreement” ), and its U.S. affiliate who has signed below in its capacity as placement agent in the United States for the Underwriters (the “U.S. Placement Agent” ), does hereby certify that:

 

  (a) the U.S. Placement Agent is a duly registered broker dealer with the United States Securities and Exchange Commission and is a member of, and in good standing with, the National Association of Securities Dealers, Inc. on the date hereof;

 

  (b) all offers and sales of the Securities in the United States were made to institutional “accredited investors” ( “Institutional Accredited Investors” ), within the meaning of Rule 501(a)(1),(2),(3) or (7) under the United States Securities Act of 1933, as amended (the “U.S. Securities Act” );

 

  (c) all offers and sales of the Securities in the United States have been effected by the U.S. Placement Agent in accordance with all applicable U.S. broker dealer requirements;

 

  (d) in connection with offers and sales of the Securities in the United States, it has not used and will not use any written material other than the Offering Memorandum (such document, the “Offering Document” ), and each offeree of the Securities in the United States has been sent a copy of the Offering Document;

 

  (e) immediately prior to transmitting the Offering Document to such offerees, it had reasonable grounds to believe and did believe that each offeree was an Institutional Accredited Investor, and, on the date hereof, if continues to believe that each U.S. Purchaser is an Institutional Accredited Investor;

 

  (f) neither it nor its representatives have utilized, and neither it nor its representatives will utilize, any form of general solicitation or general advertising (as those terms are used in Regulation D under the U.S. Securities Act) or have offered or will offer to sell any Securities in any manner involving a public offering within the meaning of Section 4(2) of the U.S. Securities Act;

 

  (g) prior to any sale of Securities in the United States, we caused each U.S. Purchaser to sign a U.S. Subscription Agreement containing representations, warranties and agreements to the Corporation substantially similar to those set forth in paragraph 4 of Schedule “B” to the Agency Agreement; and

 

  (h) neither it nor any member of the Selling Dealer Group (as defined in Schedule “B” to the Agency Agreement), nor any of our or its affiliates, have taken or will take any action which would constitute a violation of Regulation M of the SEC under the United States Securities Exchange Act of 1934, as amended.


Terms used in this certificate have the meanings given to them in the Agency Agreement unless otherwise defined herein.

 

Dated:                      , 2004

 

WESTWIND PARTNERS INC.   WESTMINSTER SECURITIES CORPORATION
By:  

 


  By:  

 


    Name:       Name:
    Title:       Title:

 

- 2 -


Schedule “C” to an Agency Agreement dated November 12, 2004

between Gastar Exploration Ltd. and Westwind Partners Inc., as Agent

 

FORM OF BROKER WARRANT CERTIFICATE


UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS PURCHASE WARRANT CERTIFICATE MUST NOT TRADE THE PURCHASE WARRANTS OR THE COMMON SHARES ISSUABLE UPON EXERCISE BEFORE MARCH 12, 2005.

 

THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION UNDER SUCH ACT OR AN EXEMPTION FROM REGISTRATION, WHICH, IN THE OPINION OF COUNSEL REASONABLY SATISFACTORY TO COUNSEL FOR THIS CORPORATION, IS AVAILABLE.

 

THE PURCHASE WARRANTS REPRESENTED BY THIS CERTIFICATE WILL BE VOID AND OF NO VALUE UNLESS EXERCISED NO LATER THAN 4:30 p.m. (CALGARY TIME) ON MAY 12, 2006.

 

WARRANT CERTIFICATE

GASTAR EXPLORATION LTD.

(A corporation subsisting under the laws of the Province of Alberta)

 

WARRANT    
CERTIFICATE NO.                                         PURCHASE          WARRANTS entitling the holder to acquire, subject to adjustment, one (1) Common Share for each Purchase Warrant represented hereby.

 

THIS IS TO CERTIFY THAT                                                                                        (hereinafter referred to as the “holder”) is the registered holder of that number of Purchase Warrants to acquire Common Shares (as hereinafter defined) of Gastar Exploration Ltd. (the “Corporation”) as set forth in this Purchase Warrant certificate (“Warrant Certificate”). Each Purchase Warrant represented hereby entitles the holder thereof to acquire, in the manner and subject to the restrictions and adjustments set forth herein, at any time and from time to time until 4:30 p.m. (Calgary Time) (the “Time of Expiry”) on May 12, 2006 (the “Expiry Date”), one (1) fully paid and non-assessable common share without nominal or par value, (together with any other securities which may be issued or distributed by the Corporation with respect thereto or in substitution therefor, the “Common Shares”) of the Corporation, at a price of CDN$4.65 per share.

 

The right to acquire Common Shares hereunder may only be exercised by the holder within the time set forth above by:

 

a. duly completing and executing the Exercise Form attached hereto;

 

b. surrendering this Warrant Certificate to the head office of the Corporation; and

 

c. remitting cash, certified cheque, bank draft or money order in lawful money of Canada, payable to or to the order of the Corporation where this Warrant Certificate is so surrendered, for the aggregate purchase price of the Common Shares so subscribed for.

 

These Purchase Warrants may be surrendered only upon personal delivery hereof or, if sent by mail or other means of transmission, upon actual receipt thereof by the Corporation at the office referred to above.

 

Upon exercise of these Purchase Warrants as provided above, the person or persons in whose name or names the Common Shares issuable upon exercise of the Purchase Warrants are to be issued shall be deemed for all purposes to be the holder or holders of record of such Common Shares. The Corporation covenants that it will cause a certificate or certificates representing such Common Shares to be delivered or mailed to the person or persons at the address or addresses specified in the Exercise Form as soon as is practicable and in any event within seven (7) business days.


The registered holder of this Warrant Certificate may acquire any lesser number of Common Shares than the number of Common Shares which may be acquired for the Purchase Warrants represented by this Warrant Certificate. In such event, the holder shall be entitled to receive a new certificate for the balance of the Common Shares which may be acquired. To the extent that the holder is entitled to receive on the exercise or partial exercise thereof a fraction of a Common Share, such right may only be exercised in respect of such fraction in combination with another Purchase Warrant or other Purchase Warrants, which in the aggregate entitles the holder to receive a whole number of Common Shares.

 

If the holder is not able to or elects not to, combine Purchase Warrants so as to be entitled to acquire a whole number of Common Shares, the Corporation shall make an appropriate cash settlement. However, in respect of any holder, the Corporation shall only be required to make such a cash adjustment once and for one Purchase Warrant and no more. The amount of the cash adjustment with respect to the Common Share shall be equal to the fraction of the Common Share to which the holder would be entitled multiplied by the current market price of the Common Shares as determined in good faith by the Corporation.

 

The Corporation agrees that, prior to the expiration of this Purchase Warrant, the Corporation will at all times:

 

a. have authorized and in reserve, and will keep available, solely for issuance or delivery upon the exercise of this Purchase Warrant, the maximum amount of Common Shares and other securities and properties as from time to time shall be receivable upon the exercise of this Purchase Warrant, free and clear of all restrictions on sale or transfer, except for:

 

  i. the restrictions on sale or transfer set forth in the Securities Act of 1933, the Business Corporations Act (Alberta) or any other statute of Canada or a province thereof, and of regulations under any such act or other statute, relating to warrant agreements or to the rights, duties and obligations of trustees, or warrant agents, and of corporations under warrant agreements; and

 

  ii. restrictions created by or on behalf of the holder, and free and clear of all preemptive rights and rights of first refusal; and

 

b. cause the Common Shares to be listed on the Toronto Stock Exchange or other securities exchange on which the Common Shares are then listed.

 

The Corporation covenants that:

 

a. all of the Common Shares are validly authorized and, if and when this Purchase Warrant is exercised in whole or in part in accordance with the terms hereof, the Common Shares issued upon such exercise, upon receipt by the Corporation of the full exercise price therefor, shall be validly issued, fully paid, nonassessable, and will not be issued in violation of any preemptive rights or other rights of stockholders;

 

b. it will pay, when due and payable, any and all federal, provincial and state stamp, original issue or similar taxes which may be payable in respect of the issue of any Common Shares or any certificate thereof pursuant to the exercise of the Purchase Warrants;

 

c. it will comply with all filings and reporting obligations required to maintain good standing with the Toronto Stock Exchange or such other stock exchange as the Common Shares may then be listed upon, and thereby maintain its Common Shares so listed.; and

 

d. following the date hereof, in the event the Corporation is required to file a Registration Statement covering the Common Shares issuable upon conversion of the Convertible Debentures issued by the Corporation on November •, 2004, the Corporation shall use reasonable commercial efforts to include the Common Shares issuable upon exercise of the Purchase Warrants in such Registration Statement.

 

In the event of any alteration of the Common Shares, including any subdivision, consolidation or reclassification, and in the event of any form of reorganization of the Corporation including any amalgamation, merger or arrangement, or any dividend or distribution of Common Shares or other securities or property, or successive

 

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transactions thereof, the holders of Purchase Warrants shall, upon exercise of the Purchase Warrants following the occurrence of any of those events, be entitled to receive the same number and kind of shares, securities or property that they would have been entitled to receive had they exercised their Purchase Warrants immediately prior to the occurrence of those events. The Corporation covenants to take such steps as may be necessary to ensure that the issuer of any shares of stock or other securities or property thereafter deliverable on the exercise of this Purchase Warrant, pursuant to any of the alterations described above, shall be responsible for all of the agreements and obligations of the Corporation hereunder, and the Corporation shall ensure that such issuer executes an agreement with the holder providing that the holder has the rights thereafter to receive upon exercise of this Purchase Warrant such shares, securities or property. In case at any time the Corporation shall take any action requiring an adjustment as described above, the Corporation shall give written notice thereof, to the holder at the holder’s address as it shall appear on the books of the Corporation, at least fifteen (15) days prior to the date as of which the holders of record of the Common Shares are entitled to receive any shares, securities or property.

 

The holding of the Purchase Warrants evidenced by this Warrant Certificate shall not constitute the holder hereof a shareholder of the Corporation or entitle the holder to any right or interest in respect thereof except as expressly provided in this Warrant Certificate.

 

The Purchase Warrants evidenced by this Warrant Certificate may be transferred on the register kept at the principal offices of the Corporation in Mt. Pleasant, Michigan by the registered holder hereof or its legal representatives or its attorney duly appointed by an instrument in writing in form and execution satisfactory to the Corporation.

 

This Warrant Certificate shall not be valid for any purpose whatever unless and until it has been signed by or on behalf of the Corporation.

 

Upon receipt of evidence satisfactory to the Corporation of the loss, theft, destruction or mutilation of this Purchase Warrant, and upon receipt of indemnity reasonably satisfactory to the Corporation, if lost, stolen or destroyed, and upon surrender and cancellation of this Purchase Warrant, if mutilated, the Corporation shall execute and deliver to the holder a new Purchase Warrant of like date, tenor and denomination.

 

The parties hereto irrevocably consent to the exclusive jurisdiction of the courts of the Province of Alberta in connection with any action or proceeding arising out of or relating to this Purchase Warrant, any document or instrument delivered pursuant to, in connection with or simultaneously with this Purchase Warrant, or a breach of this Purchase Warrant or any such document or instrument. In any such action or proceeding, each party hereto waives personal service of any summons, complaint or other process and agrees that service thereof may be made to the respective agents of the parties designated to receive service of process. Within thirty (30) days after such service, or such other time as may be mutually agreed upon in writing by the attorneys for the parties to such action or proceeding, the party so served shall appear or answer such summons, complaint or other process.

 

No course of dealing and no delay or omission on the part of the holder in exercising any right or remedy shall operate as a waiver thereof or otherwise prejudice the holder’s rights, powers or remedies. No right, power or remedy conferred by this Purchase Warrant upon the holder shall be exclusive of any other right, power or remedy referred to herein or now or hereafter available at law, in equity, by statute or otherwise, and all such remedies may be exercised singly or concurrently.

 

This Purchase Warrant may be amended only by a written instrument executed by the Corporation and the holder hereof. Any amendment shall be endorsed upon this Purchase Warrant, and all future holders shall be bound thereby.

 

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Time shall be of the essence hereof. This Warrant Certificate shall be governed by and construed in accordance with the laws of the Province of Alberta.

 

IN WITNESS WHEREOF the Corporation has caused this Warrant Certificate to be signed by its duly authorized officers as of November 12, 2004.

 

GASTAR EXPLORATION LTD.
Per:  

 


    J. Russell Porter, Chief Executive Officer

 

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TRANSFER OF PURCHASE WARRANTS

 

FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers to                                      ,                                  Purchase Warrants of Gastar Exploration Ltd. (the “Corporation”) registered in the name of the undersigned on the records of the Corporation represented by the Warrant Certificate attached and irrevocably appoints                                                           the attorney of the undersigned to transfer the said securities on the books or register with full power of substitution.

 

If less than all the Purchase Warrants represented by this Warrant Certificate are being transferred, the Warrant Certificate representing those Purchase Warrants not transferred will be registered in the name appearing on the face of this Warrant Certificate and such certificates (please check one):

 

(a)                   should be sent by first class mail to the following address:

 

                                                                                                                                                                                             

 

                                                                                                                                                                                             

 

(b)                   should be held for pick up at the principal office of the Corporation in Mt. Pleasant, Michigan, at which this Warrant Certificate is deposited.

 

DATED the      day of                      ,              .

 

   

 


Signature Guaranteed   (Signature of holder)

 

Instructions:

 

1. Signature of the holder must be the signature of the person appearing on the face of this Warrant Certificate.

 

2. If the Transfer Form is signed by a trustee, executor, administrator, curator, guardian, attorney, officer of a corporation or any person acting in a judiciary or representative capacity, the certificate must be accompanied by evidence of authority to sign satisfactory to the Corporation.

 

3. The signature on the Transfer Form must be guaranteed by an authorized officer of a chartered bank, trust company or an investment dealer who is a member of a recognized stock exchange.

 

4. Purchase Warrants shall only be transferable in accordance with applicable laws.

 

5. The Purchase Warrants and the Common Shares issuable upon exercise thereof have not been registered under the United States Securities Act of 1933 , as amended (the “U.S. Securities Act”), or the securities laws of any state of the United States, and may not be transferred in the United States or to a U.S. Person unless the Purchase Warrants and the Common Shares have been registered under the U.S. Securities Act and the securities laws of all applicable states of the United States or an exemption from such registration requirements is available. In connection with any transfer of Purchase Warrants, the holder will be required to provide to the Corporation an opinion of counsel, or other evidence, in form reasonably satisfactory to the Corporation, to the effect that such transfer of Purchase Warrants does not require registration under the U.S. Securities Act or any applicable state laws and regulations governing the offer and sale of securities.

 

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EXERCISE FORM

 

      TO:         GASTAR EXPLORATION LTD.

 

(a) The undersigned hereby exercises the right to acquire                          Common Shares of Gastar Exploration Ltd.

 

(b) The Common Shares (or other securities or property) are to be issued as follows:

 

Name:                                                                                                                                                                                                       

                      (print clearly)

 

Address in full:                                                                                                                                                                                         

 

                                                                                                                                                                                                                 

 

Social Insurance Number/Social Security Number/IRS Tax Identification Number:                                                                          

 

Number of Common Shares:                                                                                                                                                                 

 

Note : If further nominees intended, please attach (and initial) schedule giving these particulars.

 

(c) Such securities (please check one):

 

                 should be sent by first class mail to the following address:

 

OR

 

                 should be held for pick up at the office of the Corporation at its principal office in Mt. Pleasant Michigan at which this Warrant Certificate is deposited.

 

If the number of Purchase Warrants exercised are less than the number of Purchase Warrants represented hereby, the undersigned requests that the new Warrant Certificate representing the balance of the Purchase Warrants be registered in the name of                                                                                                                                                                                                                        

 

                                                                                                                                                                                                                         

 

whose address is                                                                                                                                                                                               

 

                                                                                                                                                                                                                         

 

Such securities (please check one):

 

(a)                              should be sent by first class mail to the following address:

 

                                                                                                                                                                                                                         

 

                                                                                                                                                                                                                         

 

OR

 

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(b)                               should be held for pick up at the office of the principal office of the Corporation in Mt. Pleasant, Michigan at which this Warrant Certificate is deposited.

 

In the absence of instructions to the contrary, the securities or other property will be issued in the name of or to the holder hereof and will be sent by first class mail to the last address of the holder appearing on the register maintained for the Purchase Warrants.

 

DATED this      day of                      ,              .

 

 


  

 


Signature Guaranteed    (Signature of holder)
    

 


     Print full name
    

 


    

 


     Print full address

 

Instructions :

 

1. The registered holder may exercise its right to receive Common Shares by completing this form and surrendering this form and the Warrant Certificate representing the Purchase Warrants being exercised to the Corporation at its principal office in Mt. Pleasant, Michigan. Certificates for Common Shares will be delivered or mailed as soon as is practicable and in any event within seven (7) business days after the exercise of the Purchase Warrants.

 

2. If the Exercise Form indicates that Common Shares are to be issued to a person or persons other than the registered holder of the Certificate, the signature of such holder of the Exercise Form must be guaranteed by an authorized officer of a chartered bank, trust company or an investment dealer who is a member of a recognized stock exchange.

 

3. If the Exercise Form is signed by a trustee, executor, administrator, curator, guardian, attorney, officer of a corporation or any person acting in a fiduciary or representative capacity, the certificate must be accompanied by evidence of authority to sign satisfactory to the Corporation.

 

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EXHIBIT 4.5

 

UNITED STATES

 

SUBSCRIPTION AGREEMENT FOR

 

9.75% CONVERTIBLE SENIOR UNSECURED SUBORDINATED DEBENTURES

 

TO: Gastar Exploration Ltd. (the “Corporation”)
AND  TO: Westwind Partners Inc. (the “Agent”)

 

The undersigned (hereinafter referred to as the “ Subscriber ”) hereby irrevocably subscribes for and agrees to purchase the principal amount of 9.75% convertible senior unsecured subordinated debentures (the “ Debentures ”) of the Corporation set forth below, at an aggregate subscription price that is equivalent to the principal amount of Debentures purchased (the “ Aggregate Subscription Price ”), representing a subscription price of $1,000 (U.S.) per Debenture, upon and subject to the terms and conditions set forth in “Terms and Conditions of Subscription for 9.75% Convertible Senior Unsecured Subordinated Debentures of Gastar Exploration Ltd.” attached hereto (together with this page and the attached Exhibits, the “ Subscription Agreement ”). In addition to this face page, the Subscriber must also complete all applicable Exhibits attached hereto.

 

 


       Principal Amount of Debentures Subscribed for and Aggregate Subscription Price (U.S.): $                     
(Name of Subscriber - please print)     

By:

 

 

 


      

Deliver the Debentures as set forth below:

 


(Name)

 


(Account reference, if applicable)

 


(Contact Name)

 


(Address, including ZIP code)


 

Register the Debentures as set forth below:

 


(Name)

 


(Account reference, if applicable)

 


(Address, including ZIP code)

 


    (Authorized Signature)     

(Official Capacity or Title - please print)

 


(Please print name of individual whose signature appears above if

different than the name of the subscriber printed above.)

 


(Subscriber’s Address, including ZIP code)

 


 


(Telephone Number)                                    (E-Mail Address)

    

 

ACCEPTANCE: The Corporation hereby accepts the subscription as set forth above on the terms and conditions contained in this Subscription Agreement and the Corporation represents and warrants to the Subscriber that the representations and warranties made by the Corporation to the Agent in the Agency Agreement (as defined herein) are true and correct in all material respects as of the Closing Date (as defined herein) (save and except as waived by the Agent) and that the Subscriber is entitled to rely thereon as though the Subscriber was a party thereto.

 

                     , 2004

 

GASTAR EXPLORATION LTD.   Subscription No:
By:  

 


   

 

This is the first page of an agreement comprised of 11 pages (not including Exhibits 1 - 3).


TERMS AND CONDITIONS OF SUBSCRIPTION FOR

9.75% CONVERTIBLE SENIOR UNSECURED SUBORDINATED DEBENTURES

OF GASTAR EXPLORATION LTD.

 

Terms of the Offering

 

1. The Subscriber acknowledges (on its own behalf and, if applicable, on behalf of each person on whose behalf the Subscriber is contracting) that this subscription is subject to rejection or allotment by the Corporation in whole or in part.

 

2. The Subscriber acknowledges (on its own behalf and, if applicable, on behalf of each person on whose behalf the Subscriber is contracting) that:

 

(a) the Debentures subscribed for by it hereunder form part of a larger issuance and sale by the Corporation of up to $30,000,000 (U.S.) principal amount of Debentures at an issue price of $1,000 (U.S.) per Debenture on a best efforts marketed offering basis through the Agent (the “ Offering ”); and

 

(b) the Offering is not subject to any minimum subscription level, and therefore, any funds invested are available to the Corporation and will be paid to the Corporation on the Closing Date; and

 

(c) the Debentures will be duly and validly created and issued pursuant to, and the conversion thereof shall be governed by, the terms and conditions of a trust indenture (the “ Indenture ”) to be dated the Closing Date between the Corporation and CIBC Mellon Trust Company, as trustee, which Indenture shall include the following terms:

 

  (i) the Debentures will be limited in the aggregate principal amount to $30,000,000 (U.S.). The Corporation may, however, from time to time, without the consent of the holders of the Debentures, issue additional debentures in addition to the Debentures offered hereby;

 

  (ii) the Debentures will be issuable only in denominations of $1,000 (U.S.) and integral multiples thereof. At the closing of the Offering, the Debentures will be available for delivery in certificated form;

 

  (iii) the Debentures will bear interest from the date of issue at 9.75% per annum, which will be payable quarterly in arrears on February 10, May 10, August 10 and November 10 in each year, commencing with February 10, 2005. The first payment will include accrued and unpaid interest for the period from the Closing Date to February 10, 2005. The interest on the Debentures will be payable in lawful money of the United States of America. The principal amount of the Debentures will also be payable in lawful money of the United States of America;

 

  (iv) the Debentures will be direct obligations of the Corporation and will not be secured by any mortgage, pledge, hypothecation or other charge and will be subordinated to all existing senior secured and unsecured indebtedness of the Corporation. In addition, the Indenture will not restrict the Corporation from incurring additional indebtedness for borrowed money or for mortgaging, pledging or charging its properties to secure any indebtedness;

 

  (v) the Debentures will be convertible at the option of the holder into fully paid and non-assessable common shares of the Corporation (the “ Underlying Shares ”) at any time prior to 5:00 p.m. (Toronto time) on the business day prior to the maturity date, being the date that is five years and one (1) day subsequent to the Closing Date, at an initial conversion price of $4.62 (U.S.) ($5.75 (Canadian)) per Underlying Share (the “ Conversion Price ”), being an initial conversion rate of approximately 216 Underlying Shares per $1,000 (U.S.) principal amount of Debentures. The Conversion Price shall be adjusted in accordance with specified anti-dilution clauses relating to changes in the Corporation’s share capital (including share splits, dividends, share consolidations, share dividends and similar recapitalizations) and other distributions of Underlying Shares of the Corporation, and as described in Section 5 hereof, all as more particularly set forth in the Indenture. Holders converting their Debentures shall be entitled to receive, in addition to the applicable number of Underlying Shares, accrued and unpaid interest in respect thereof for the period up to the date of conversion from the date of the latest interest payment date on the Debentures;


  (vi) the Debentures will be redeemable by the Corporation, in whole, or from time to time in part, at any time after the second anniversary of the Closing Date, on at least 30 days notice, at a redemption price equal to 100% of the principal amount plus accrued and unpaid interest, provided that the volume weighted average trading price (as calculated in accordance with the Indenture) of the Underlying Shares on the Toronto Stock Exchange for at least 20 trading days in any consecutive 30 day period ending five trading days prior to the date on which notice of redemption is given exceeds $7.50 (Canadian); and

 

(d) the Indenture shall otherwise be in such form and contain such terms as shall be approved by the Corporation and the Agent; and

 

(e) in the event the Corporation or its agent is required to deduct or withhold any tax from payments due under the Debentures to the Subscriber, the Corporation shall so deduct or withhold and pay over to the taxing authority imposing such tax the amount required to be deducted or withheld and the amounts otherwise payable to the Subscriber will be reduced accordingly.

 

Representations, Warranties and Covenants by Subscriber

 

3. The Subscriber (on its own behalf and, if applicable, on behalf of each person on whose behalf the Subscriber is contracting) represents, warrants and covenants to the Corporation and the Agent and their respective counsel (and acknowledges that the Corporation and the Agent, and their respective counsel, are relying thereon) that both at the date hereof and at the Closing Time (as defined herein):

 

(a) it has been advised that trading in the Debentures and the Underlying Shares will be subject to various limitations and holding periods of up to two years under the securities laws of the United States and Canada regardless of the residence of the Subscriber; it has been independently advised as to restrictions with respect to trading in the Debentures and the Underlying Shares imposed by applicable securities legislation in the jurisdiction in which it resides; it confirms that no representation has been made to it by or on behalf of the Corporation or the Agent with respect thereto; it acknowledges that it is aware of the characteristics of the Debentures and the Underlying Shares, the risks relating to an investment therein, that there is no market for the Debentures, and of the fact that it may not be able to resell the Debentures and the Underlying Shares except in accordance with limited exemptions under applicable securities legislation and regulatory policy until expiry of the applicable restricted period and compliance with the other requirements of applicable law; and it agrees that any certificates representing the Debentures and the Underlying Shares will bear a legend indicating that the resale of such securities is restricted, and the Subscriber further acknowledges that it has been advised to consult its own legal counsel in its jurisdiction of residence for full particulars of resale restrictions applicable to it ; and

 

(b) other than the Corporation’s confidential power point presentation and a confidential term sheet (collectively, the “ Offering Documents ”), it has not received or been provided with, nor has it requested, nor does it have any need to receive, any offering memorandum, any prospectus, sales or advertising literature, or any other document (other than an annual report, annual information form, interim report, information circular or any other continuous disclosure document, other than an offering memorandum, the content of which is prescribed by statute or regulation) describing or purporting to describe the business and affairs of the Corporation which has been prepared for delivery to, and review by, prospective purchasers in order to assist it in making an investment decision in respect of the Debentures and the Underlying Shares; and

 

(c) it has not become aware of any advertisement in printed media of general and regular paid circulation (or other printed public media), radio, television or telecommunications or other form of advertisement (including electronic display) with respect to the distribution of the Debentures; and

 

(d) it is, and at all times since the Subscriber received a copy of the Offering Documents, was, (i) a resident of and was offered the Debentures in the jurisdiction set forth as the “Subscriber’s Address” under its signature on the face page of this Subscription Agreement, and (ii) an institutional investor, which qualifies as an “accredited investor” (as defined in Rule 501(a) (1), (2), (3) or (7) of Regulation D promulgated by the U.S. Securities and Exchange Commission (“ SEC ”)) as indicated on Exhibit 1; if the state of principal residence, or the state of its principal office or principal place of business, changes, or its address changes in any other respect, before the consummation of his, her or its purchase of the Debentures subscribed for under this Subscription Agreement, it will promptly notify the Corporation, and if the change in the state of principal residence, or its principal office or principal place of business, is to a state in which an offer and/or sale of the Debentures is prohibited by applicable law, any offer to sell Debentures to it made before notification of the change in the state of principal residence, or its principal office or principal place of business, shall be deemed retracted and it shall cease to be entitled to purchase Debentures pursuant to such offer; and

 

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(e) it acknowledges that:

 

  (i) no securities commission or similar regulatory authority has reviewed or passed on the merits of the Debentures or the Underlying Shares or the adequacy or accuracy of the information set forth in any document provided to him, her or it; and

 

  (ii) there is no government or other insurance covering the Debentures or the Underlying Shares; and

 

  (iii) there are risks associated with the purchase of the Debentures and the Underlying Shares, which securities are a speculative investment that involves a high degree of risk of loss of entire investment; and

 

  (iv) there are substantial restrictions on the Subscriber’s ability to resell the Debentures and the Underlying Shares and it is the responsibility of the Subscriber to find out what those restrictions are and to comply with them before selling the Debentures or the Underlying Shares; and

 

  (v) the Corporation has advised the Subscriber that the Corporation is relying on an exemption from the requirements to provide the Subscriber with a prospectus and to sell securities through a person or company registered to sell securities under the Securities Act (Alberta) and other applicable securities laws and, as a consequence of acquiring Debentures pursuant to this exemption, certain protections, rights and remedies provided by the Securities Act (Alberta) and other applicable securities laws, including statutory rights of rescission or damages, will not be available to the Subscriber; and

 

  (vi) the Debentures and the Underlying Shares shall not be resold until after the expiry of the applicable “hold” or “restricted” period attaching to such Debentures and the Underlying Shares under United States and Canadian laws, unless sold pursuant to an exemption under all applicable securities laws, and the certificates evidencing the Debentures and the Underlying Shares which it shall receive will bear a legend referring to such restrictions on resale and neither the Corporation nor any transfer agent of the Corporation will register any transfers of such Debentures and the Underlying Shares not made in compliance with such restrictions on resale; and

 

(f) it is purchasing the Debentures directly from the Corporation pursuant to Regulation D under U.S. Securities Act of 1933 , as amended (the “ 1933 Act ”), and:

 

  (i) it is authorized to consummate the purchase of the Debentures; and

 

  (ii) it understands and acknowledges that the Debentures and the Underlying Shares have not been and will not be registered under the 1933 Act, or any applicable state securities laws, and that the sale contemplated hereby is being made in reliance on a private placement exemption to institutional “accredited investors” as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the 1933 Act (“ Institutional Accredited Investors ”) and similar exemptions under state law. Accordingly, the Debentures and the Underlying Shares will be “restricted securities” within the meaning of Rule 144 under the 1933 Act, and therefore may not be offered or sold by it, directly or indirectly, in the United States without registration under United States federal and, if not preempted, state securities laws, except in compliance with paragraph 3(f)(v) and, the Subscriber understands that the certificates representing the Debentures and the Underlying Shares issued to it will contain a legend in respect of such restrictions which is set out in (vi) below; and

 

  (iii) it has received, for its information only, a copy of this Subscription Agreement, a copy of the Corporation’s confidential power point presentation and a confidential term sheet relating to the offering in the United States of the Debentures; it has been offered the opportunity to ask questions and receive answers concerning the terms and conditions of the Offering and to obtain any information the Subscriber deems necessary to verify the accuracy of any information regarding the Corporation; and has had access to such additional information, if any, concerning the Corporation as it has considered necessary in connection with its investment decision to invest in the Debentures; and

 

  (iv) the Subscriber has a pre-existing personal or business relationship with the Corporation or one of its officers, directors or controlling persons, or by reason of the Subscriber’s business or financial experience, it has such

 

4


knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the Debentures and is able to bear the economic risks of such investment and can be reasonably assumed to have the capacity to protect his, her or its own interests in connection with the transaction contemplated by this Subscription Agreement; and

 

  (v) it agrees that if it decides to offer, sell or otherwise transfer any of the Debentures or Underlying Shares, it will not offer, sell or otherwise transfer any of such Debentures or Underlying Shares, directly or indirectly, except: (A) to the Corporation, (B) outside the United States in accordance with Regulation S under the 1933 Act, and in compliance with applicable local laws and regulations, (C) inside or outside the United States after one year pursuant to the exemption from registration under the 1933 Act provided by Rule 144 thereunder, (D) to a person it reasonably believes is a “qualified institutional buyer” (as defined in Rule 144A under the 1933 Act) purchasing for its own account or for the account of a qualified institutional buyer in a transaction meeting the requirements of Rule 144A, (E) inside the United States, in any other transaction exempt from registration under the 1933 Act and, in any event, in compliance with any applicable state securities laws of the United States, provided that prior to any transfer pursuant to this clause (E), the Corporation may require a legal opinion reasonably satisfactory to the Corporation that such transfer is exempt from registration under the 1933 Act and applicable state securities laws, and, in each instance, in compliance with any applicable state securities laws of the United States or (F) pursuant to a registration statement effective under the 1933 Act and covering such offer, sale and transfer; and

 

  (vi) it understands that upon the original issuance thereof, and until such time as the same is no longer required under applicable requirements of the 1933 Act or state securities laws, the certificates representing the Debentures and the Underlying Shares, and all certificates issued in exchange therefor or in substitution thereof, shall bear on the face of such certificates the following legend:

 

THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”) OR STATE SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF GASTAR EXPLORATION LTD. THAT SUCH SECURITIES MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO GASTAR EXPLORATION LTD., (B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH REGULATION S UNDER THE U.S. SECURITIES ACT, (C) INSIDE OR OUTSIDE THE UNITED STATES, PURSUANT TO THE EXEMPTION FROM REGISTRATION UNDER THE U.S. SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER, (D) TO A PERSON THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE U.S. SECURITIES ACT) PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, OR (E) PURSUANT TO A REGISTRATION STATEMENT EFFECTIVE UNDER THE U.S. SECURITIES ACT AND COVERING SUCH OFFER, SALE OR TRANSFER (IT BEING UNDERSTOOD THAT THE ISSUER SHALL BE UNDER NO OBLIGATION TO FILE SUCH REGISTRATION STATEMENT). HEDGING TRANSACTIONS INVOLVING THE SECURITIES REPRESENTED HEREBY MAY NOT BE CONDUCTED EXCEPT IN COMPLIANCE WITH THE U.S. SECURITIES ACT.

 

A NEW CERTIFICATE BEARING NO LEGEND MAY BE OBTAINED FROM CIBC MELLON TRUST COMPANY UPON DELIVERY OF AN OPINION OF COUNSEL, IN A FORM SATISFACTORY TO CIBC MELLON TRUST COMPANY AND GASTAR EXPLORATION LTD., TO THE EFFECT THAT THE SALE OF THE SECURITIES REPRESENTED HEREBY IS BEING MADE IN COMPLIANCE WITH RULE 144 UNDER THE SECURITIES ACT TOGETHER WITH OTHER DOCUMENTATION REASONABLY REQUESTED BY CIBC MELLON TRUST COMPANY OR THE CORPORATION;

 

provided , that if Debentures or Underlying Shares are being sold in compliance with the requirements of Rule

 

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144 under the 1933 Act or pursuant to an effective registration statement under the 1933 Act, the above legend may be removed by delivery of (i) an opinion of counsel of recognized standing reasonably satisfactory to the Corporation to the effect that such Debentures or Underlying Shares held by it are being sold pursuant to Rule 144 of the 1933 Act or pursuant to an effective registration statement under the 1933 Act, as the case may be, and (ii) such other documentation reasonably requested by CIBC Mellon Trust Company or the Corporation;

 

provided , further , that if (i) it is not an “affiliate” (as defined in Rule 405 under the 1933 Act) of the Corporation, (ii) it has not been such an affiliate in the preceding three months, and (iii) at least two years (or such shorter period as may be permitted under Rule 144(k) or any successor rule) have elapsed since the later of the date the Debentures (or the original Debentures if the securities constitute Underlying Shares issued upon conversion of such original Debentures) were acquired from the Corporation or from an affiliate of the Corporation, then the above legend may be removed from any certificates representing such Debentures or Underlying Shares held by it by delivery to CIBC Mellon Trust Company of an opinion of counsel of recognized standing reasonably satisfactory to the Corporation, to the effect that any such Debentures or Underlying Shares held by it may be sold pursuant to Rule 144(k) (or any successor rule) of the 1933 Act and such legend is no longer required under applicable requirements of the 1933 Act or state securities laws;

 

and the Corporation shall use its reasonable best efforts to cause the registrar and transfer agent of the Corporation to remove the foregoing U.S. legend within three business days (excluding weekends and holidays) of receipt of the foregoing, as applicable; and

 

  (vii) it is an Institutional Accredited investor as set forth in Exhibit 1 hereto and is acquiring the Debentures as principal for its own account for investment, and not with a view to any resale, distribution or other disposition of the Debentures or the Underlying Shares, in violation of United States securities laws; the Subscriber has no contract, undertaking, agreement or arrangement with any person to sell, transfer, assign or pledge to such person or anyone else all or any part of the Debentures or Underlying Shares for which the Subscriber hereby subscribes, and the Subscriber has no plans or intentions to enter into any such contract, undertaking or arrangement; and

 

  (viii) it has concurrently executed and delivered Exhibit 1 hereto with this Subscription Agreement which Exhibit is incorporated into and forms a part of this Subscription Agreement; and

 

  (ix) the Subscriber has read, is fully familiar with, and completely understands, the Offering Documents and any other documents and information which he, she or it deems material to making an investment decision with respect to the Debentures; and

 

  (x) the financial condition of the Subscriber is such that he, she or it has no need for liquidity with respect to his, her or its investment in the Debentures to satisfy any existing or contemplated undertaking or indebtedness, and he, she or it has no need for a current return on his, her or its investment in the Debentures; he, she or it is able to bear the economic risk of his, her or its investment in the Debentures for an indefinite period of time, including the risk of losing all of his, her or its investment, and the loss of his, her or its entire investment in the Debentures would not materially adversely affect the standard of living of the Subscriber or his or her family; and

 

  (xi) all information that the Subscriber has provided in this Subscription Agreement concerning the Subscriber and his, her or its financial condition is correct and complete as of the date the Subscriber has executed this Subscription Agreement, and if there should by any material change in such information prior to the acceptance of the Subscriber’s subscription for the Debentures subscribed for under this Subscription Agreement, the Subscriber will immediately so notify the Corporation; and

 

(g) it understands and acknowledges that the certificates representing the Debentures and the Underlying Shares will also bear a legend that the securities cannot be traded through the facilities of stock exchanges in Canada since the certificate is not freely transferable and consequently is not “good delivery” in transactions on such stock exchanges unless on or prior to such trade, arrangements have been made to remove the legends as provided in the provisos of Section 3(f)(vi) hereof, and it acknowledges that such stock exchanges would deem the selling security holder to be responsible for any loss incurred on a sale made by such security holder in such securities; and

 

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(h) it understands and acknowledges that the Corporation has the right to instruct the transfer agent for the Debentures and the Underlying Shares not to record a transfer by any person in the United States without first being notified by the Corporation that it is satisfied that such transfer is exempt from or not subject to registration under the 1933 Act and any applicable state securities laws; and

 

(i) it acknowledges that it has not purchased the Debentures as a result of any general solicitation or general advertising, as such terms are defined in Regulation D under the 1933 Act, including, without limitation, advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and

 

(j) except as provided herein, no person has made to the Subscriber any written or oral representation:

 

  (i) that any person will resell or repurchase the Debentures or the Underlying Shares;

 

  (ii) that any person will refund the purchase price of the Debentures or the Underlying Shares; or

 

  (iii) as to the future price or value of the Debentures or the Underlying Shares; and

 

(k) it understands and acknowledges that, except as set forth in Section 4 hereof, the Corporation is not obligated to file and has no present intention of filing with the SEC or with any state securities administration any registration statement in respect of resales of the Debentures or the Underlying Shares; and

 

(l) it understands and acknowledges that the Corporation (i) is not presently, nor is the Corporation under any obligation to become, a “foreign private issuer”, as such term is defined in Regulation S of the 1933 Act and (ii) notwithstanding any statements to the contrary in the confidential term sheet or otherwise made in connection with the offering of Debentures, since the Corporation is not a foreign private issuer, the 1933 Act restricts the offer, sale or transfer of the Debentures and the Underlying Shares both within and outside of the United States, as set forth in this Subscription Agreement; and

 

(m) if a corporation, partnership, unincorporated association or other entity, it has the legal capacity to enter into and be bound by this Subscription Agreement and further certifies that all necessary approvals of directors, shareholders or otherwise have been given and obtained; and

 

(n) this Subscription Agreement has been duly and validly authorized, executed and delivered by and constitutes a legal, valid, binding and enforceable obligation of the Subscriber; and

 

(o) in the case of a subscription by it for Debentures acting as agent for a disclosed principal, it is duly authorized to execute and deliver this Subscription Agreement and all other necessary documentation in connection with such subscription on behalf of such principal and this Subscription Agreement has been duly authorized, executed and delivered by or on behalf of, and constitutes a legal, valid, binding and enforceable agreement of, such principal; and

 

(p) it is aware that there is no market and may never be a market for the Debentures and that none is expected to develop, and acknowledges and confirms that no representation has been made to it with respect to the future value or price of the Debentures or that the Debentures will be listed on any stock exchange or that application has been or will be made for such listing; and

 

(q) except for the representations and warranties made by the Corporation to the Agent in the Agency Agreement and the Subscriber’s review of the Corporation’s confidential power point presentation and a confidential term sheet, it has relied solely upon publicly available information relating to the Corporation and not upon any verbal or written representation as to fact or otherwise made by or on behalf of the Corporation or the Agent, such publicly available information having been delivered to the Subscriber without independent investigation or verification by the Agent, and agrees that the Agent and the Agent’s counsel assume no responsibility or liability of any nature whatsoever for the accuracy, adequacy or completeness of the publicly available information or as to whether all information concerning the Corporation required to be disclosed by the Corporation has been generally disclosed; and

 

(r) it acknowledges that the Corporation’s counsel and the Agent’s counsel are acting as counsel to the Corporation and the Agent, respectively, and not as counsel to the Subscriber; and

 

7


(s) it understands, acknowledges and is aware that the Debentures are being offered for sale only on a “private placement” basis and that the sale and delivery of the Debentures is conditional upon such sale being exempt from the requirements under applicable securities legislation as to the filing of a prospectus or delivery of an offering memorandum or upon the issuance of such orders, consents or approvals as may be required to permit such sale without the filing of a prospectus or delivering an offering memorandum and, as a consequence (i) it is restricted from using most of the civil remedies available under securities legislation; (ii) it may not receive information that would otherwise be required to be provided to it under securities legislation; and (iii) the Corporation is relieved from certain obligations that would otherwise apply under securities legislation; and

 

(t) if required by applicable securities legislation, regulations, rules, policies or orders or by any securities commission, stock exchange or other regulatory authority, the Subscriber will execute, deliver, file and otherwise assist the Corporation in filing, such reports, undertakings and other documents with respect to the issue of the Debentures, including, without limitation: (i) a duly completed copy of Exhibit 1 ; and (ii) a duly executed and completed Private Placement Questionnaire and Undertaking required by the Toronto Stock Exchange, a copy of which is attached hereto as Exhibit 2 ; and

 

(u) the acquisition of the Debentures hereunder by the Subscriber will not, and the acquisition of the Underlying Shares by the Subscriber would not, result in the Subscriber becoming a “control person”, as defined under applicable securities laws; and

 

(v) the entering into of this Subscription Agreement and the completion of the transactions contemplated hereby do not and will not result in a violation of any of the terms or provisions of any law applicable to the Subscriber, or if the Subscriber is not a natural person, any of the Subscriber’s constating documents, or any agreement to which the Subscriber is a party or by which it is bound; and

 

(w) the Subscriber acknowledges that it has been encouraged to obtain independent legal, income tax and investment advice with respect to its subscription for the Debentures and accordingly, has had the opportunity to acquire an understanding of the meanings of all terms contained herein relevant to the Subscriber for purposes of giving representations, warranties and covenants under this Subscription Agreement; and

 

(x) it shall provide a duly executed and complete U.S. Internal Revenue Service Form W-9 (in the form attached as Exhibit 3 or any successor form) promptly upon learning that any such form previously provided has become obsolete or incorrect.

 

Resale Commitments

 

4. The Corporation will use its reasonable commercial efforts to either: (i) file a registration statement (the “ Registration Statement ”) on proper form with the SEC covering the resale of all Underlying Shares that are restricted under the 1933 Act, (ii) obtain an SEC no-action letter to permit resales of the Underlying Shares through the facilities of the Toronto Stock Exchange, within 120 days of the Closing Date, or (iii) provide a legal opinion of U.S. counsel satisfactory to the Agent regarding the ability of subscribers to resell the Underlying Shares without undue restrictions. If the Corporation does not receive the SEC no-action letter or the Agent does not receive a satisfactory legal opinion as provided in (ii) and (iii) above, respectively, the Corporation shall use its reasonable commercial efforts to cause the Registration Statement to be declared effective as soon as possible. The Corporation shall cause the Registration Statement to remain effective until the earlier of (i) 30 days after all the Debentures have been converted into Underlying Shares, or (ii) one year from the Closing Date.

 

5. The Indenture pursuant to which the Debentures will be issued will provide for the provisions set forth in this Section 5. If the Corporation does not receive the SEC no-action letter or the Agent does not receive a satisfactory legal opinion as provided under Section 4 above and if the Registration Statement is not declared effective within four months from the Closing Date, the conversion price of the Debentures shall be reduced to $4.54 (U.S.) ($5.65 (Canadian)). If the Registration Statement is not declared effective within six months from the Closing Date, the conversion price of the Debenture shall be reduced to $4.46 (U.S.) ($5.55 (Canadian)). If the Registration Statement is not declared effective within eight months from the Closing Date, the conversion price of the Debentures shall be reduced to $4.38 (U.S.) ($5.45 (Canadian)). The Corporation cannot assure that the Registration Statement will be declared effective by the SEC or that an SEC no-action letter or satisfactory legal opinions can be obtained. Accordingly, the foregoing shall constitute the sole remedy of subscribers for failure to effect the Registration Statement or obtain an SEC no-action letter or opinions.

 

8


6. The Subscriber acknowledges and agrees that, if it chooses to avail itself of the use of the Registration Statement it will, upon request of the Corporation, timely furnish to the Corporation for use and publication in the Registration Statement all selling shareholder information required to be included in the Registration Statement, and the Subscriber will advise the Corporation whenever such information is incorrect and will furnish updated information. The Subscriber acknowledges that failure to timely provide such information, and to keep such information updated, will excuse the Corporation from maintaining or filing the Registration Statement for the benefit of such Subscriber. The Subscriber agrees to indemnify and hold harmless the Corporation, its respective officers, directors, partners, employees, representatives and agents, or any controlling persons (any such person referred to hereinafter shall be referred to as an “ Indemnified Holder ”), against any losses, claims, damages or liabilities to which such Indemnified Holder may become subject under the 1933 Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions or proceedings in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in any information furnished by the Subscriber for use in the Registration Statement or related prospectus, or any amendment or supplement thereto or any related preliminary prospectus or (ii) the omission or alleged omission to state therein a material fact required to be included in such information requested by the Corporation or necessary to make such information not misleading, in the light of the circumstances under which such information is furnished.

 

7. The Subscriber acknowledges that if the Registration Statement is declared effective (i) the Corporation shall be under no obligation to arrange an underwriting or otherwise assist in providing for any proposed sales of Underlying Shares covered by the Registration Statement and (ii) in order to update the Registration Statement with periodic information or material non-public information as required by the 1933 Act, the effectiveness of the Registration Statement, and the ability of the Subscriber to effect sales of Underlying Shares covered thereby, will be periodically suspended from time to time upon notice to the holders of Debentures or Underlying Shares. The Corporation shall not be required to specify in any notice to the nature of the event giving rise to the suspension. The Corporation will use its reasonable efforts to limit these suspended periods to those required by the 1933 Act.

 

Closing

 

8. The Subscriber agrees to deliver to the Agent, not later than 12:00 p.m. (Toronto time) on November 4, 2004: (a) this duly completed and executed Subscription Agreement; (b) Exhibit 1 duly completed; (c) a duly executed and completed Private Placement Questionnaire and Undertaking required by the Toronto Stock Exchange in the form of Exhibit 2 ; (d) a duly executed and complete U.S. Internal Revenue Service Form W-9 (in the form attached as Exhibit 3 ); and (e) a certified cheque or bank draft payable to the Agent for the Aggregate Subscription Price or payment of the same amount in such other manner as is acceptable to the Agent. If this Subscription Agreement is rejected in whole or in part, the Subscriber acknowledges that the unused portion of the subscription amount will be promptly returned to it without interest.

 

9. The sale of the Debentures pursuant to this Subscription Agreement will be completed at the offices of Burnet, Duckworth & Palmer LLP, the Corporation’s counsel, in Calgary, Alberta at 10:00 a.m. or such other time as the Corporation and the Agent may agree (the “ Closing Time ”) on November 10, 2004 or such other date as the Corporation and the Agent may agree (the “ Closing Date ”). At the Closing Time, subject to the terms of the Agency Agreement, the Agent shall deliver to the Corporation all completed subscription agreements, including this Subscription Agreement, and the aggregate subscription amount against delivery by the Corporation of the certificates representing the Debentures.

 

10. The Corporation and the Agent shall be entitled to rely on delivery of a facsimile copy of executed Subscription Agreements, and acceptance by the Corporation of such facsimile subscriptions shall be legally effective to create a valid and binding agreement between the Subscriber and the Corporation in accordance with the terms hereof. In addition, this Subscription Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which shall constitute one and the same document.

 

General

 

11. The Subscriber agrees that the representations, warranties and covenants of the Subscriber herein will be true and correct both as of the execution of this Subscription Agreement and as of the Closing Time and will survive the completion of the issuance of the Debentures. The representations, warranties and covenants of the Subscriber herein are made with the intent that they be relied upon by the Corporation and the Agent and their respective counsel in determining the eligibility of a purchaser of Debentures and the Subscriber agrees to indemnify and hold harmless the Corporation and the Agent and their respective affiliates, shareholders, directors, officers, partners, employees and agents, from and against all losses, claims, costs, expenses and damages or liabilities whatsoever which any of them may suffer or incur which are caused or arise from a breach thereof. The Subscriber undertakes to immediately notify the Corporation at Gastar Exploration Ltd., 888, 900 – 6 th Avenue S.W., Calgary, Alberta, T2P 3K2, Attention: Sara-Lane Sirey, Corporate Secretary (Fax Number: (403) 237-6518) and the Agent at Westwind

 

9


Partners Inc., 70 York Street, 10 th Floor, Toronto, Ontario, M5J 1S9, Attention: Nick Pocrnic (Fax Number: (416) 815-1808), of any change in any statement or other information relating to the Subscriber set forth herein which takes place prior to the Closing Time.

 

12. The Subscriber acknowledges that the Agent has agreed to offer the Debentures on a best efforts marketed “private placement” basis and, in connection therewith, the Corporation and the Agent have entered into, or will enter into prior to the Closing Date, an agreement (the “ Agency Agreement ”) pursuant to which the Agent, in connection with the issue and sale of the Debentures, will receive a fee from the Corporation. The Subscriber hereby irrevocably authorizes the Agent: (a) to act as its representative at the closing and to execute in its name and on its behalf all closing receipts and documents required; (b) to complete or correct any errors or omissions in any form or document, including this Subscription Agreement, provided by the Subscriber; (c) to receive on its behalf certificates representing the Debentures purchased under this Subscription Agreement; (d) to approve any opinions, certificates or other documents addressed to the Subscriber; (e) to waive, in whole or in part, any representations, warranties, covenants or conditions for the benefit of the Subscriber and contained in the Agency Agreement; and (f) to exercise any rights of termination contained in the Agency Agreement.

 

13. The Subscriber acknowledges that this Subscription Agreement and the Exhibits hereto require the Subscriber to provide certain personal information to the Corporation. Such information is being collected by the Corporation for the purposes of completing the Offering, which includes, without limitation, determining the Subscriber’s eligibility to purchase the Debentures under applicable securities legislation, preparing and registering certificates representing Debentures to be issued to the Subscriber and completing filings required by any stock exchange or securities regulatory authority. The Subscriber’s personal information may be disclosed by the Corporation to: (a) stock exchanges or securities regulatory authorities, (b) the Corporation’s registrar and transfer agent; and (c) any of the other parties involved in the Offering, including legal counsel, and may be included in record books in connection with the Offering. By executing this Subscription Agreement, the Subscriber is deemed to be consenting to the foregoing collection, use and disclosure of the Subscriber’s personal information. The Subscriber also consents to the filing of copies or originals of any of the Subscriber’s documents described in Section 8 hereof as may be required to be filed with any stock exchange or securities regulatory authority in connection with the transactions contemplated hereby.

 

14. The Subscriber represents and warrants that the funds representing the Aggregate Subscription Price which will be advanced by the Subscriber to the Corporation hereunder will not represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) Act (Canada) (the “ PCMLA ”) and the Subscriber acknowledges that the Corporation may in the future be required by law to disclose the Subscriber’s name and other information relating to this Subscription Agreement and the Subscriber’s subscription hereunder, on a confidential basis, pursuant to the PCMLA. To the best of its knowledge (a) none of the subscription funds to be provided by the Subscriber (i) have been or will be derived from or related to any activity that is deemed criminal under the law of Canada, the United States of America, or any other jurisdiction, or (ii) are being tendered on behalf of a person or entity who has not been identified to the Subscriber, and (b) it shall promptly notify the Corporation if the Subscriber discovers that any of such representations ceases to be true, and to provide the Corporation with appropriate information in connection therewith.

 

15. The obligations of the parties hereunder are subject to acceptance of the terms of the Offering by the Toronto Stock Exchange and all other required regulatory approvals.

 

16. The Subscriber acknowledges and agrees that all costs incurred by the Subscriber (including any fees and disbursements of any special counsel retained by the Subscriber) relating to the sale of the Debentures to the Subscriber shall be borne by the Subscriber.

 

17. The contract arising out of this Subscription Agreement and all documents relating thereto shall be governed by and construed in accordance with the laws of the Province of Alberta and the federal laws of Canada applicable therein. The parties irrevocably attorn to the exclusive jurisdiction of the courts of the Province of Alberta. Time shall be of the essence hereof.

 

18. This Subscription Agreement represents the entire agreement of the parties hereto relating to the subject matter hereof and there are no representations, covenants or other agreements relating to the subject matter hereof except as stated or referred to herein.

 

19. The terms and provisions of this Subscription Agreement shall be binding upon and enure to the benefit of the Subscriber and the Corporation and their respective heirs, executors, administrators, successors and assigns; provided that, except for the assignment by a Subscriber who is acting as nominee or agent for the beneficial owner and as otherwise herein provided, this Subscription Agreement shall not be assignable by any party without prior written consent of the other parties.

 

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20. The Subscriber, on its own behalf and, if applicable, on behalf of others for whom it is contracting hereunder, agrees that this subscription is made for valuable consideration and may not be withdrawn, cancelled, terminated or revoked by the Subscriber, on its own behalf and, if applicable, on behalf of others for whom it is contracting hereunder.

 

21. Subject to Section 12, neither this Subscription Agreement nor any provision hereof shall be modified, changed, discharged or terminated except by an instrument in writing signed by the party against whom any waiver, change, discharge or termination is sought.

 

22. The invalidity, illegality or unenforceability of any provision of this Subscription Agreement shall not affect the validity, legality or enforceability of any other provision hereof.

 

23. The headings used in this Subscription Agreement have been inserted for convenience of reference only and shall not affect the meaning or interpretation of this Subscription Agreement or any provision hereof.

 

24. The covenants, representations and warranties contained herein shall survive the closing of the transactions contemplated hereby.

 

25. In this Subscription Agreement (including the Exhibits hereto) all references to dollar amounts are to United States dollars, unless otherwise indicated.

 

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EXHIBIT 1

 

1. Accredited Investor – (defined in Rule 501(a) of SEC Regulation D) includes any person who comes within any of the following categories at the time of the sale of the securities to that person:

 

             (501(a)(1)) any bank as defined in Section 3(a)(2) of the U.S. Securities Act of 1933 , or any savings and loan association or other institution as defined in Section 3(a)(5)(A) of such Act whether acting in its individual or fiduciary capacity, any broker or dealer registered pursuant to Section 15 of the U.S. Securities Exchange Act of 1934 , any insurance company as defined in Section 2(13) of the U.S. Securities Act of 1933 , any investment company registered under the U.S. Investment Company Act of 1940 or a business development company as defined in Section 2(a)(48) of the U.S. Investment Company Act of 1940 , any small business investment company licensed by the U.S. Small Business Administration under Section 301(c) or (d) of the U.S. Small Business Investment Act of 1958 , any plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions for the benefit of its employees, if such plan has total assets in excess of $5,000,000, any employee benefit plan within the meaning of Title 1 of the U.S. Employee Retirement Income Security Act of 1974 , if the investment decision is made by a plan fiduciary, as defined in Section 3(21) of the U.S. Employee Retirement Income Security Act of 1974 , which is either a bank, savings and loan association, insurance company, or registered investment adviser, or if the employee benefit plan has total assets in excess of $5,000,000 or, if a self-directed plan, with investment decisions made solely by persons that are accredited investors;

 

             (501(a)(2)) any private business development company as defined in Section 202(a)(22) of the U.S. Investment Advisers Act of 1940 ;

 

             (501(a)(3)) any organization described in Section 501(c)(3) of the U.S. Internal Revenue Code, corporation, Massachusetts or similar business trust, or partnership, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $5,000,000;

 

             (501(a)(7)) any trust, with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the securities offered, whose purchase is directed by a sophisticated person as described in SEC Rule 506(b)(2)(ii).

 

NOTE: The investor should initial beside the portion of the above definition applicable to it.

 

All monetary references in this Exhibit 1 are in United States Dollars.


LOGO

 

EXHIBIT 2

 

TORONTO STOCK EXCHANGE

 

PRIVATE PLACEMENT QUESTIONNAIRE AND UNDERTAKING

 

To be completed by each proposed private placement purchaser of listed securities or securities which are convertible into listed securities.

 

QUESTIONNAIRE

 

1.        DESCRIPTION OF TRANSACTION
     (a)    Name of Issuer of the Securities
         

Gastar Exploration Ltd.

     (b)    Number and Class of Securities to be Purchased
         

$                      (U.S.) principal amount of 9.75% Convertible Senior Unsecured Subordinated Debentures (the “Debentures”)

     (c)    Purchase Price
         

$1,000 (U.S.) per Debenture

2.    DETAILS OF PURCHASER
     (a)    Name of Purchaser: ___________________________________________________________________________________
          ___________________________________________________________________________________________________
          ___________________________________________________________________________________________________
          ___________________________________________________________________________________________________
     (b)    Address: ___________________________________________________________________________________________
          ___________________________________________________________________________________________________
          ___________________________________________________________________________________________________
          ___________________________________________________________________________________________________
     (c)    Names and addresses of persons having a greater than 10% beneficial interest in the purchaser:
          ___________________________________________________________________________________________________
          ___________________________________________________________________________________________________
          ___________________________________________________________________________________________________


3.        RELATIONSHIP TO ISSUER
     (a)    Is the purchaser (or any person named in response to 2(c) above) an insider of the issuer for the purposes of the Ontario Securities Act (before giving effect to this private placement)? If so, state the capacity in which the purchaser (or person named in response to 2(c)) qualifies as an insider.
         

                                                                                                                                                                                                    

 

                                                                                                                                                                                                    

 

     (b)    If the answer to (a) is “no”, are the purchaser and the issuer controlled by the same person or company? If so, give details.
         

                                                                                                                                                                                                    

 

                                                                                                                                                                                                    

 

4.    DEALINGS OF PURCHASER IN SECURITIES OF THE ISSUER
     Give details of all trading by the purchaser, as principal, in the securities of the issuer (other than debt securities which are not convertible into equity securities), directly or indirectly, within the 60 days preceding the date hereof.
    

                                                                                                                                                                                                    

 

                                                                                                                                                                                                    

 

 

UNDERTAKING

 

TO: The Toronto Stock Exchange

 

The undersigned has subscribed for and agreed to purchase, as principal, the securities described in Item 1 of this Private Placement Questionnaire and Undertaking.

 

The undersigned undertakes not to sell or otherwise dispose of any of the said securities so purchased or any securities derived therefrom for a period of four months from the date of the closing of the transaction herein or for such period as is prescribed by applicable securities legislation, whichever is longer, without the prior consent of the Toronto Stock Exchange and any other regulatory body having jurisdiction.

 

DATED at                      ,                                     
this      day of                      , 2004  

 


    (Name of Purchaser – please print)
   

 


    (Authorized Signature)
   

 


    (Official Capacity – please print)
   

 


    (please print here name of individual whose signature appears above, if different from name of purchaser printed above)

 

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EXHIBIT 3

 

U.S. INTERNAL REVENUE SERVICE FORM W-9

EXHIBIT 4.6

 

CANADA - AB, ON

UNITED KINGDOM

CONTINENTAL EUROPE

OFFSHORE

 

``

 

SUBSCRIPTION AGREEMENT FOR

 

9.75% CONVERTIBLE SENIOR UNSECURED SUBORDINATED DEBENTURES

 

TO:    Gastar Exploration Ltd. (the “Corporation”)
AND TO:    Westwind Partners Inc. (the “Agent”)

 

The undersigned (hereinafter referred to as the “ Subscriber ”) hereby irrevocably subscribes for and agrees to purchase the principal amount of 9.75% convertible senior unsecured subordinated debentures (the “ Debentures ”) of the Corporation set forth below, at an aggregate subscription price that is equivalent to the principal amount of Debentures purchased (the “ Aggregate Subscription Price ”), representing a subscription price of $1,000 (U.S.) per Debenture, upon and subject to the terms and conditions set forth in “Terms and Conditions of Subscription for 9.75% Convertible Senior Unsecured Subordinated Debentures of Gastar Exploration Ltd.” attached hereto (together with this page and the attached Exhibits, the “ Subscription Agreement ”). In addition to this face page, the Subscriber must also complete all applicable Exhibits attached hereto.

 

 


(Name of Subscriber - please print)

   Principal Amount of Debentures Subscribed for and Aggregate Subscription Price (U.S.): $                     
By:  

 


(Authorized Signature)

  

If the Subscriber is signing as agent for a principal and is in Alberta and is not a trust company or a portfolio manager, or, in any case, purchasing as trustee or agent for accounts fully managed by it, complete the following and ensure that Exhibit 1 or 2, as applicable, is completed in respect of such principal:

 


(Name of Principal)

 


(Principal’s Address)

 


(Principal’s Telephone Number)

 


(Principal’s E-Mail Address)

 

 

Deliver the Debentures as set forth below:

 


(Name)

 


(Account reference, if applicable)

 


(Contact Name)

 


(Address)

 


 


(Official Capacity or Title - please print)

 


(Please print name of individual whose signature appears above if different than the name of the subscriber printed above.)

 


(Subscriber’s Address)

 


 


(Telephone Number)                                           (E-Mail Address)

 

Register the Debentures as set forth below:

 


(Name)

 


(Account reference, if applicable)

 


(Address)

 


  

 

ACCEPTANCE: The Corporation hereby accepts the subscription as set forth above on the terms and conditions contained in this Subscription Agreement and the Corporation represents and warrants to the Subscriber that the representations and warranties made by the Corporation to the Agent in the Agency Agreement (as defined herein) are true and correct in all material respects as of the Closing Date (as defined herein) (save and except as waived by the Agent) and that the Subscriber is entitled to rely thereon as though the Subscriber was a party thereto.

 

                     , 2004

 

GASTAR EXPLORATION LTD.    Subscription No:            
By:  

 


    

 

This is the first page of an agreement comprised of 11 pages (not including Exhibits 1 - 4).


TERMS AND CONDITIONS OF SUBSCRIPTION FOR

9.75% CONVERTIBLE SENIOR UNSECURED SUBORDINATED DEBENTURES

OF GASTAR EXPLORATION LTD.

 

Terms of the Offering

 

1. The Subscriber acknowledges (on its own behalf and, if applicable, on behalf of each person on whose behalf the Subscriber is contracting) that this subscription is subject to rejection or allotment by the Corporation in whole or in part.

 

2. The Subscriber acknowledges (on its own behalf and, if applicable, on behalf of each person on whose behalf the Subscriber is contracting) that:

 

(a) the Debentures subscribed for by it hereunder form part of a larger issuance and sale by the Corporation of up to $30,000,000 (U.S.) principal amount of Debentures at an issue price of $1,000 (U.S.) per Debenture on a best efforts marketed offering basis through the Agent (the “ Offering ”); and

 

(b) the Offering is not subject to any minimum subscription level, and therefore, any funds invested are available to the Corporation and will be paid to the Corporation on the Closing Date; and

 

(c) the Debentures will be duly and validly created and issued pursuant to, and the conversion thereof shall be governed by, the terms and conditions of a trust indenture (the “ Indenture ”) to be dated the Closing Date between the Corporation and CIBC Mellon Trust Company, as trustee, which Indenture shall include the following terms:

 

  (i) the Debentures will be limited in the aggregate principal amount to $30,000,000 (U.S.). The Corporation may, however, from time to time, without the consent of the holders of the Debentures, issue additional debentures in addition to the Debentures offered hereby;

 

  (ii) the Debentures will be issuable only in denominations of $1,000 (U.S.) and integral multiples thereof. At the closing of the Offering, the Debentures will be available for delivery in certificated form;

 

  (iii) the Debentures will bear interest from the date of issue at 9.75% per annum, which will be payable quarterly in arrears on February 10, May 10, August 10 and November 10 in each year, commencing with February 10, 2005. The first payment will include accrued and unpaid interest for the period from the Closing Date to February 10, 2005. The interest on the Debentures will be payable in lawful money of the United States of America. The principal amount of the Debentures will also be payable in lawful money of the United States of America;

 

  (iv) the Debentures will be direct obligations of the Corporation and will not be secured by any mortgage, pledge, hypothec or other charge and will be subordinated to all existing senior secured and unsecured indebtedness of the Corporation. In addition, the Indenture will not restrict the Corporation from incurring additional indebtedness for borrowed money or for mortgaging, pledging or charging its properties to secure any indebtedness;

 

  (v) the Debentures will be convertible at the option of the holder into fully paid and non-assessable common shares of the Corporation (the “ Underlying Shares ”) at any time prior to 5:00 p.m. (Toronto time) on the business day prior to the maturity date, being the date that is five years and one (1) day subsequent to the Closing Date, at an initial conversion price of $4.62 (U.S.) ($5.75 (Canadian)) per Underlying Share (the “ Conversion Price ”), being an initial conversion rate of approximately 216 Underlying Shares per $1,000 (U.S.) principal amount of Debentures. The Conversion Price shall be adjusted in accordance with specified anti-dilution clauses relating to changes in the Corporation’s share capital (including share splits, dividends, share consolidations, share dividends and similar recapitalizations) and other distributions of Underlying Shares of the Corporation, and as described in Section 5 hereof, all as more particularly set forth in the Indenture. Holders converting their Debentures shall be entitled to receive, in addition to the applicable number of Underlying Shares, accrued and unpaid interest in respect thereof for the period up to the date of conversion from the date of the latest interest payment date on the Debentures;

 

  (vi) the Debentures will be redeemable by the Corporation, in whole, or from time to time in part, at any time after the second anniversary of the Closing Date, on at least 30 days notice, at a redemption price equal to 100% of the principal amount plus accrued and unpaid interest, provided that the volume weighted average trading price (as calculated in accordance with the Indenture) of the Underlying Shares on the Toronto Stock Exchange for at least 20 trading days in any consecutive 30 day period ending five trading days prior to the date on which notice of redemption is given exceeds $7.50 (Canadian); and


(d) the Indenture shall otherwise be in such form and contain such terms as shall be approved by the Corporation and the Agent; and

 

(e) in the event the Corporation or its agent is required to deduct or withhold any tax from payments due under the Debentures to the Subscriber, the Corporation shall so deduct or withhold and pay over to the taxing authority imposing such tax the amount required to be deducted or withheld and the amounts otherwise payable to the Subscriber will be reduced accordingly.

 

Representations, Warranties and Covenants by Subscriber

 

3. The Subscriber (on its own behalf and, if applicable, on behalf of each person on whose behalf the Subscriber is contracting) represents, warrants and covenants to the Corporation and the Agent and their respective counsel (and acknowledges that the Corporation and the Agent, and their respective counsel, are relying thereon) that both at the date hereof and at the Closing Time (as defined herein):

 

(a) it has been advised that trading in the Debentures and the Underlying Shares will be subject to various limitations and holding periods of up to two years under the securities laws of the United States and Canada regardless of the residence of the Subscriber; it has been independently advised as to restrictions with respect to trading in the Debentures and the Underlying Shares imposed by applicable securities legislation in the jurisdiction in which it resides; it confirms that no representation has been made to it by or on behalf of the Corporation or the Agent with respect thereto; it acknowledges that it is aware of the characteristics of the Debentures and the Underlying Shares, the risks relating to an investment therein, that there is no market for the Debentures, and of the fact that it may not be able to resell the Debentures and the Underlying Shares except in accordance with limited exemptions under applicable securities legislation and regulatory policy until expiry of the applicable restricted period and compliance with the other requirements of applicable law; and it agrees that any certificates representing the Debentures will, and the Underlying Shares may (if required), bear a legend indicating that the resale of such securities is restricted; and

 

(b) other than the Corporation’s confidential power point presentation and a confidential term sheet, it has not received or been provided with, nor has it requested, nor does it have any need to receive, any offering memorandum, any prospectus, sales or advertising literature, or any other document (other than an annual report, annual information form, interim report, information circular or any other continuous disclosure document, other than an offering memorandum, the content of which is prescribed by statute or regulation) describing or purporting to describe the business and affairs of the Corporation which has been prepared for delivery to, and review by, prospective purchasers in order to assist it in making an investment decision in respect of the Debentures and the Underlying Shares; and

 

(c) it has not become aware of any advertisement in printed media of general and regular paid circulation (or other printed public media), radio, television or telecommunications or other form of advertisement (including electronic display) with respect to the distribution of the Debentures; and

 

(d) unless it is purchasing under subparagraph 3(e), it is purchasing the Debentures as principal for its own account, not for the benefit of any other person, for investment only and not with a view to the resale or distribution of all or any of the Debentures or the Underlying Shares, it is resident in or otherwise subject to applicable securities laws of the jurisdiction set out as the “Subscriber’s Address” on the face page hereof and it fully complies with one or more of the criteria set forth below:

 

  (i) it is resident in or otherwise subject to applicable securities laws of Alberta and it is an “accredited investor”, as such term is defined in Multilateral Instrument 45-103 - “Capital Raising Exemptions” of the Canadian Securities Administrators adopted under the Securities Act (Alberta) and has concurrently executed and delivered a Representation Letter in the form attached as Exhibit 1 to this Subscription Agreement and has initialled in Appendix “A” thereto indicating that the Subscriber satisfies one of the categories of “accredited investor” set forth in such definition; or

 

  (ii) it is resident in or otherwise subject to applicable securities laws of Ontario , it is an “accredited investor” as defined in Ontario Securities Commission Rule 45-501 entitled “Exempt Distributions” promulgated under the Securities Act (Ontario) and has concurrently executed and delivered a Representation Letter in the form attached as Exhibit 2 to this Subscription Agreement and has initialled in Appendix “A” thereto indicating that the Subscriber satisfies one of the categories of “accredited investor” set forth in such definition; or

 

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  (iii) it is a resident of the United Kingdom and is a person of a kind described in Article 19 of the Financial Services and Markets Act 2000 (Financial Promotion ) Order 2001 and is a person whose ordinary activities involve it in acquiring, holding, managing or disposing of investments (as principal or agent) for the purpose of its business; and

 

(e) if it is not purchasing as a principal, it is duly authorized to enter into this Subscription Agreement and to execute and deliver all documentation in connection with the purchase on behalf of each beneficial purchaser, each of whom is purchasing as principal for its own account, not for the benefit of any other person, for investment only and not with a view to the resale or distribution of all or any of the Debentures or the Underlying Shares, it acknowledges that the Corporation is required by law to disclose to certain regulatory authorities the identity of each beneficial purchaser of Debentures for whom it may be acting, and it and each beneficial purchaser is resident in the jurisdiction set out as the “Subscriber’s Address”, and:

 

  (i) if it is resident in or otherwise subject to applicable securities laws of Alberta , it is an “ accredited investor ” as defined in paragraphs (p) or (q) of the definition of “accredited investor” in Multilateral Instrument 45-103 (which definition is reproduced in the Appendix to Exhibit 1 attached hereto); provided, however that it is not a trust company or trust corporation registered under the laws of Prince Edward Island that is not registered under the Trust and Loan Companies Act (Canada) or under comparable legislation in another jurisdiction of Canada and has concurrently executed and delivered a Representation Letter in the form attached hereto as Exhibit 1 and has initialled Appendix “A” thereto indicating that the Subscriber satisfies one of the categories of “accredited investor” set forth in paragraphs (p) or (q) of Appendix “A” thereto; or

 

  (ii) subject to securities laws applicable to the Subscriber, if it is acting as agent for one or more disclosed principals, each of such principals is purchasing as principal for its own account, not for the benefit of any other person, for investment only, and not with a view to the resale or distribution of all or any of the Debentures or the Underlying Shares, and each of such principals complies with subparagraphs (i), (ii) or (iii) of paragraph 3(d) hereof as are applicable to it by virtue of its place of residence or by virtue of the securities laws of such place being applicable to the Subscriber; and

 

(f) if it is a resident of any jurisdiction referred to in the preceding paragraphs 3(d) or 3(e) but not purchasing thereunder, it is purchasing pursuant to an exemption from prospectus and registration requirements (particulars of which are enclosed herewith) available to it under applicable securities legislation and shall deliver to the Corporation and the Agent such further particulars of the exemption(s) and the Subscriber’s qualifications thereunder as the Corporation or the Agent or their respective counsel may request; and

 

(g) if it is a resident of or otherwise subject to applicable securities laws of any jurisdiction not referred to in the preceding paragraphs 3(d) or 3(e) it, or any beneficial purchaser for whom it is acting, complies with the requirements of all applicable securities legislation in the jurisdiction of its residence and will provide such evidence of compliance with all such matters as the Corporation or the Agent or their respective counsel may request; and

 

(h) it acknowledges that:

 

  (i) no securities commission or similar regulatory authority has reviewed or passed on the merits of the Debentures or the Underlying Shares; and

 

  (ii) there is no government or other insurance covering the Debentures or the Underlying Shares; and

 

  (iii) there are risks associated with the purchase of the Debentures and the Underlying Shares, which securities are a speculative investment that involves a high degree of risk of loss of entire investment; and

 

  (iv) it has been offered the opportunity to ask questions and receive answers concerning the terms and conditions of the Offering and to obtain any information the undersigned deems necessary to verify the accuracy of any information regarding the Corporation; and

 

  (v) there are restrictions on the Subscriber’s ability to resell the Debentures and the Underlying Shares and it is the responsibility of the Subscriber to find out what those restrictions are and to comply with them before selling the Debentures or the Underlying Shares; and

 

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  (vi) the Corporation has advised the Subscriber that the Corporation is relying on an exemption from the requirements to provide the Subscriber with a prospectus and to sell securities through a person or company registered to sell securities under the Securities Act (Alberta) and other applicable securities laws and, as a consequence of acquiring Debentures pursuant to this exemption, certain protections, rights and remedies provided by the Securities Act (Alberta) and other applicable securities laws, including statutory rights of rescission or damages, will not be available to the Subscriber; and

 

  (vii) the Debentures and the Underlying Shares shall not be resold until after the expiry of the applicable “hold” or “restricted” period attaching to such Debentures and the Underlying Shares under United States and Canadian laws, unless sold pursuant to an exemption under all applicable securities laws, and the certificates evidencing the Debentures and the Underlying Shares which it shall receive will bear a legend referring to such restrictions on resale and neither the Corporation nor any transfer agent of the Corporation will register any transfers of such Debentures and the Underlying Shares not made in compliance with such restrictions on resale; and

 

(i) it is aware that neither the Debentures nor the Underlying Shares have been registered under the United States Securities Act of 1933 , as amended (“ U.S. Securities Act ”) or the securities laws of any state of the United States and that these securities may not be offered or sold, directly or indirectly, in the United States without registration under the U.S. Securities Act or compliance with requirements of an exemption from registration and the applicable laws of all applicable states and acknowledges that in addition to the application of any of the securities laws of Canada or the jurisdiction of its residence, certain restrictions of the U.S. Securities Act may limit its ability to offer, sell or transfer the Debentures or the Underlying Shares to purchasers or transferees, whether inside or outside the United States except as set forth below under Section 3(l) hereof; and

 

(j) the Debentures have not been offered to the Subscriber in the United States, and the individuals making the order to purchase the Debentures and executing and delivering this Subscription Agreement on behalf of the Subscriber were not in the United States when the order was placed and this Subscription Agreement was executed and delivered; and

 

(k) it is not a U.S. Person (as defined in Regulation S under the U.S. Securities Act, which definition includes, but is not limited to, an individual resident in the United States, an estate or trust of which any executor or administrator or trustee, respectively, is a U.S. Person and any partnership or corporation organized or incorporated under the laws of the United States) and is not purchasing the Debentures on behalf of, or for the account or benefit of, a person in the United States or a U.S. Person; and

 

(l) it undertakes and agrees that it will not offer, sell or otherwise transfer the Debentures or the Underlying Shares except: (A) to the Corporation, (B) outside the United States in accordance with Regulation S under the U.S. Securities Act, and in compliance with applicable local laws and regulations, (C) inside or outside the United States after one year pursuant to the exemption from registration under the U.S. Securities Act provided by Rule 144 thereunder, (D) to a person it reasonably believes is a “qualified institutional buyer” (as defined in Rule 144A under the U.S. Securities Act) purchasing for its own account or for the account of a qualified institutional buyer in a transaction meeting the requirements of Rule 144A, (E) inside the United States, in any other transaction exempt from registration under the U.S. Securities Act and, in any event, in compliance with any applicable state securities laws of the United States, provided that prior to any transfer pursuant to this clause (E), the Corporation may require a legal opinion reasonably satisfactory to the Corporation that such transfer is exempt from registration under the U.S. Securities Act and any applicable U.S. state securities laws or (F) pursuant to a registration statement effective under the U.S. Securities Act and covering such offer, sale or transfer; and

 

(m) it agrees not to engage in hedging transactions involving the Debentures or the Underlying Shares unless in compliance with the U.S. Securities Act; and

 

(n) it understands that upon the original issuance thereof, and until such time as the same is no longer required under applicable requirements of the U.S. Securities Act or applicable state securities laws, the certificates representing the Debentures and the Underlying Shares, and all certificates issued in exchange therefor or in substitution thereof, shall bear on the face of such certificates the following legend:

 

THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”) OR STATE SECURITIES LAWS. THE HOLDER HEREOF, BY

 

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PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF GASTAR EXPLORATION LTD. THAT SUCH SECURITIES MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO GASTAR EXPLORATION LTD., (B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH REGULATION S UNDER THE U.S. SECURITIES ACT, (C) INSIDE OR OUTSIDE THE UNITED STATES, PURSUANT TO THE EXEMPTION FROM REGISTRATION UNDER THE U.S. SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER, (D) TO A PERSON THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE U.S. SECURITIES ACT) PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, OR (E) PURSUANT TO A REGISTRATION STATEMENT EFFECTIVE UNDER THE U.S. SECURITIES ACT AND COVERING SUCH OFFER, SALE OR TRANSFER (IT BEING UNDERSTOOD THAT THE ISSUER SHALL BE UNDER NO OBLIGATION TO FILE SUCH REGISTRATION STATEMENT). HEDGING TRANSACTIONS INVOLVING THE SECURITIES REPRESENTED HEREBY MAY NOT BE CONDUCTED EXCEPT IN COMPLIANCE WITH THE U.S. SECURITIES ACT.

 

A NEW CERTIFICATE BEARING NO LEGEND MAY BE OBTAINED FROM CIBC MELLON TRUST COMPANY UPON DELIVERY OF AN OPINION OF COUNSEL, IN A FORM SATISFACTORY TO CIBC MELLON TRUST COMPANY AND GASTAR EXPLORATION LTD., TO THE EFFECT THAT THE SALE OF THE SECURITIES REPRESENTED HEREBY IS BEING MADE IN COMPLIANCE WITH RULE 144 UNDER THE U.S. SECURITIES ACT OR PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE U.S. SECURITIES ACT, IN EACH CASE TOGETHER WITH SUCH OTHER DOCUMENTATION REASONABLY REQUESTED BY CIBC MELLON TRUST COMPANY OR THE CORPORATION;

 

provided, that if Debentures or Underlying Shares are being sold in compliance with the requirements of Rule 144 under the U.S. Securities Act or pursuant to an effective registration statement under the U.S. Securities Act, the above legend may be removed by delivery of (i) an opinion of counsel of recognized standing reasonably satisfactory to the Corporation to the effect that such Debentures or Underlying Shares held by it are being sold pursuant to Rule 144 of the U.S. Securities Act or an effective registration statement under the U.S. Securities Act, as the case may be, and (ii) such other documentation reasonably requested by CIBC Mellon Trust Company or the Corporation;

 

provided, further, that if (i) it is not an “affiliate” (as defined in Rule 405 under the U.S. Securities Act) of the Corporation, (ii) it has not been such an affiliate in the preceding three months, and (iii) at least two years (or such shorter period as may be permitted under Rule 144(k) or any successor rule) have elapsed since the later of the date the Debentures (or the original Debentures if the securities constitute Underlying Shares issued upon conversion of such original Debentures) were acquired from the Corporation or from an affiliate of the Corporation, then the above legend may be removed from any certificates representing such Debentures or Underlying Shares held by it by delivery to CIBC Mellon Trust Company of an opinion of counsel of recognized standing reasonably satisfactory to the Corporation, to the effect that any such Debentures or Underlying Shares held by it may be sold pursuant to Rule 144(k) (or any successor rule) of the U.S. Securities Act and such legend is no longer required under applicable requirements of the U.S. Securities Act or state securities laws;

 

and the Corporation shall use its reasonable best efforts to cause the registrar and transfer agent of the Corporation to remove the foregoing legend within three business days (excluding weekends and holidays) of receipt of the foregoing, as applicable; and

 

(o) it understands and acknowledges that the certificates representing the Debentures and the Underlying Shares, in addition to bearing the foregoing legends, will bear a legend that the securities cannot be traded through the facilities of stock exchanges in Canada since the certificate is not freely transferable and consequently is not “good delivery” in transactions on such stock exchanges unless on or prior to such trade, arrangements have been made to remove the legends as provided in the provisos of paragraph 3(n) hereof, and it acknowledges that such stock exchanges would deem the selling security holder to be responsible for any loss incurred on a sale made by such security holder in such securities; and

 

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(p) it understands and acknowledges that (i) the Corporation is not presently, nor is the Corporation under any obligation to become, a “foreign private issuer”, as such term is defined in Regulation S of the U.S. Securities Act, and (ii) notwithstanding any statements to the contrary in the confidential term sheet or otherwise made in connection with the offering of Debentures, since the Corporation is not a foreign private issuer, the U.S. Securities Act restricts the offer, sale or transfer of the Debentures and the Underlying Shares both within and outside of the United States, as set forth in this Subscription Agreement; and

 

(q) if a corporation, partnership, unincorporated association or other entity, it has the legal capacity to enter into and be bound by this Subscription Agreement and further certifies that all necessary approvals of directors, shareholders or otherwise have been given and obtained; and

 

(r) if an individual, it is of the full age of majority and is legally competent to execute this Subscription Agreement and take all action pursuant hereto; and

 

(s) this Subscription Agreement has been duly and validly authorized, executed and delivered by and constitutes a legal, valid, binding and enforceable obligation of the Subscriber; and

 

(t) in the case of a subscription by it for Debentures acting as agent for a disclosed principal, it is duly authorized to execute and deliver this Subscription Agreement and all other necessary documentation in connection with such subscription on behalf of such principal and this Subscription Agreement has been duly authorized, executed and delivered by or on behalf of, and constitutes a legal, valid, binding and enforceable agreement of, such principal; and

 

(u) it has such knowledge in financial and business affairs as to be capable of evaluating the merits and risks of its investment and is able to bear the economic risk of loss of its investments or, where it is not purchasing as principal, each beneficial purchaser is able to bear the economic risk of loss of its investment; and

 

(v) it is aware that there is no market and may never be a market for the Debentures and that none is expected to develop, and acknowledges and confirms that no representation has been made to it with respect to the future value or price of the Debentures or that the Debentures will be listed on any stock exchange or that application has been or will be made for such listing; and

 

(w) except for the representations and warranties made by the Corporation to the Agent in the Agency Agreement and the Subscriber’s review of the Corporation’s confidential power point presentation and a confidential term sheet, it has relied solely upon publicly available information relating to the Corporation and not upon any verbal or written representation as to fact or otherwise made by or on behalf of the Corporation or the Agent, such publicly available information having been delivered to the Subscriber without independent investigation or verification by the Agent, and agrees that the Agent and the Agent’s counsel assume no responsibility or liability of any nature whatsoever for the accuracy, adequacy or completeness of the publicly available information or as to whether all information concerning the Corporation required to be disclosed by the Corporation has been generally disclosed; and

 

(x) it acknowledges that the Corporation’s counsel and the Agent’s counsel are acting as counsel to the Corporation and the Agent, respectively, and not as counsel to the Subscriber; and

 

(y) it understands, acknowledges and is aware that the Debentures are being offered for sale only on a “private placement” basis and that the sale and delivery of the Debentures is conditional upon such sale being exempt from the requirements under applicable securities legislation as to the filing of a prospectus or delivery of an offering memorandum or upon the issuance of such orders, consents or approvals as may be required to permit such sale without the filing of a prospectus or delivering an offering memorandum and, as a consequence, except as provided to residents of Ontario in connection with the Corporation’s confidential power point presentation (i) it is restricted from using most of the civil remedies available under securities legislation; (ii) it may not receive information that would otherwise be required to be provided to it under securities legislation; and (iii) the Corporation is relieved from certain obligations that would otherwise apply under securities legislation; and

 

(z) if required by applicable securities legislation, regulations, rules, policies or orders or by any securities commission, stock exchange or other regulatory authority, the Subscriber will execute, deliver, file and otherwise assist the Corporation in filing, such reports, undertakings and other documents with respect to the issue of the Debentures, including, without limitation: (i) in the case of an accredited investor resident in or otherwise subject to applicable

 

7


securities laws of Alberta a Representation Letter in the form attached as Exhibit 1 ; (ii) in the case of an accredited investor resident in or otherwise subject to applicable securities laws of Ontario , a Representation Letter in the form attached as Exhibit 2 ; and (iii) a duly executed and completed Private Placement Questionnaire and Undertaking required by the Toronto Stock Exchange, a copy of which is attached hereto as Exhibit 3 ; and

 

(aa) it will not resell the Debentures or the Underlying Shares except in accordance with the provisions of applicable securities legislation and stock exchange rules, if applicable, in the future; and

 

(bb) the acquisition of the Debentures hereunder by the Subscriber will not, and the acquisition of the Underlying Shares by the Subscriber would not, result in the Subscriber becoming a “control person”, as defined under applicable securities laws; and

 

(cc) the entering into of this Subscription Agreement and the completion of the transactions contemplated hereby do not and will not result in a violation of any of the terms or provisions of any law applicable to the Subscriber, or if the Subscriber is not a natural person, any of the Subscriber’s constating documents, or any agreement to which the Subscriber is a party or by which it is bound; and

 

(dd) the Subscriber acknowledges that it has been encouraged to obtain independent legal, income tax and investment advice with respect to its subscription for the Debentures and accordingly, has had the opportunity to acquire an understanding of the meanings of all terms contained herein relevant to the Subscriber for purposes of giving representations, warranties and covenants under this Subscription Agreement; and

 

(ee) it is not a bank receiving interest on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business; it is not a “10-percent shareholder” of the Corporation (as the quoted term is defined in section 871(h)(3)(B) of the Internal Revenue Code of 1986, as amended (the “ Code ”)); it is not a “controlled foreign corporation” receiving interest from a “related person” (as the quoted terms are defined in sections 951 and 864(d)(4), respectively, of the Code); it shall promptly notify the Corporation upon learning that any of the preceding representations in this Section 3(ee) have become incorrect; and it shall provide a duly executed and complete U.S. Internal Revenue Service Form W-8BEN, W-8ECI or W-8IMY (as applicable and in the form attached as Exhibit 4 or any successor form) promptly upon any such form previously provided becoming obsolete or incorrect.

 

Resale Commitments

 

4. The Corporation will use its reasonable commercial efforts to either: (i) file a registration statement (the “ Registration Statement ”) on proper form with the United States Securities and Exchange Commission (the “SEC”) covering the resale of all Underlying Shares that are restricted under the U.S. Securities Act, (ii) obtain an SEC no-action letter to permit resales of the Underlying Shares through the facilities of the Toronto Stock Exchange, within 120 days of the Closing Date, or (iii) provide a legal opinion of U.S. counsel satisfactory to the Agent regarding the ability of subscribers to resell the Underlying Shares without undue restrictions. If the Corporation does not receive the SEC no-action letter or the Agent does not receive a satisfactory legal opinion as provided in (ii) and (iii) above, respectively, the Corporation shall use its reasonable commercial efforts to cause the Registration Statement to be declared effective as soon as possible. The Corporation shall cause the Registration Statement to remain effective until the earlier of (i) 30 days after all the Debentures have been converted into Underlying Shares, or (ii) one year from the Closing Date.

 

5. The Indenture pursuant to which the Debentures will be issued will provide for the provisions set forth in this Section 5. If the Corporation does not receive the SEC no-action letter or the Agent does not receive a satisfactory legal opinion as provided under Section 4 above and if the Registration Statement is not declared effective within four months from the Closing Date, the conversion price of the Debentures shall be reduced to $4.54 (U.S.) ($5.65 (Canadian)). If the Registration Statement is not declared effective within six months from the Closing Date, the conversion price of the Debenture shall be reduced to $4.46 (U.S.) ($5.55 (Canadian)). If the Registration Statement is not declared effective within eight months from the Closing Date, the conversion price of the Debentures shall be reduced to $4.38 (U.S.) ($5.45 (Canadian)). The Corporation cannot assure that the Registration Statement will be declared effective by the SEC or that an SEC no-action letter or satisfactory legal opinions can be obtained. Accordingly, the foregoing shall constitute the sole remedy of subscribers for failure to effect the Registration Statement or obtain an SEC no-action letter or opinions.

 

6. The Subscriber acknowledges and agrees that, if it chooses to avail itself of the use of the Registration Statement it will, upon request of the Corporation, timely furnish to the Corporation for use and publication in the Registration Statement all selling

 

8


shareholder information required to be included in the Registration Statement, and the Subscriber will advise the Corporation whenever such information is incorrect and will furnish updated information. The Subscriber acknowledges that failure to timely provide such information, and to keep such information updated, will excuse the Corporation from maintaining or filing the Registration Statement for the benefit of such Subscriber. The Subscriber agrees to indemnify and hold harmless the Corporation, its respective officers, directors, partners, employees, representatives and agents, or any controlling persons (any such person referred to hereinafter shall be referred to as an “ Indemnified Holder ”), against any losses, claims, damages or liabilities to which such Indemnified Holder may become subject under the U.S. Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions or proceedings in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in any information furnished by the Subscriber for use in the Registration Statement or related prospectus, or any amendment or supplement thereto or any related preliminary prospectus or (ii) the omission or alleged omission to state therein a material fact required to be included in such information requested by the Corporation or necessary to make such information not misleading, in the light of the circumstances under which such information is furnished.

 

7. The Subscriber acknowledges that if the Registration Statement is declared effective (i) the Corporation shall be under no obligation to arrange an underwriting or otherwise assist in providing for any proposed sales of Underlying Shares covered by the Registration Statement and (ii) in order to update the Registration Statement with periodic information or material non-public information as required by the U.S. Securities Act, the effectiveness of the Registration Statement, and the ability of the Subscriber to effect sales of Underlying Shares covered thereby, will be periodically suspended from time to time upon notice to the holders of Debentures or Underlying Shares. The Corporation shall not be required to specify in any notice to the nature of the event giving rise to the suspension. The Corporation will use its reasonable efforts to limit these suspended periods to those required by the U.S. Securities Act.

 

Closing

 

8. The Subscriber agrees to deliver to the Agent, not later than 12:00 p.m. (Toronto time) on November 4, 2004: (a) this duly completed and executed Subscription Agreement; (b) if the Subscriber is an “accredited investor” a fully executed and completed Representation Letter in the form of Exhibit 1 , in the case of an Alberta subscriber, and in the form of Exhibit 2 , in the case of an Ontario subscriber; (c) a duly executed and completed Private Placement Questionnaire and Undertaking required by the Toronto Stock Exchange in the form of Exhibit 3 ; (d) a duly executed and complete U.S. Internal Revenue Service Form W-8BEN, W-8ECI or W-8IMY (as applicable and in the form attached as Exhibit 4 ); and (e) a certified cheque or bank draft payable to the Agent for the Aggregate Subscription Price or payment of the same amount in such other manner as is acceptable to the Agent. If this Subscription Agreement is rejected in whole or in part, the Subscriber acknowledges that the unused portion of the subscription amount will be promptly returned to it without interest.

 

9. The sale of the Debentures pursuant to this Subscription Agreement will be completed at the offices of Burnet, Duckworth & Palmer LLP, the Corporation’s counsel, in Calgary, Alberta at 10:00 a.m. or such other time as the Corporation and the Agent may agree (the “ Closing Time ”) on November 10, 2004 or such other date as the Corporation and the Agent may agree (the “ Closing Date ”). At the Closing Time, subject to the terms of the Agency Agreement, the Agent shall deliver to the Corporation all completed subscription agreements, including this Subscription Agreement, and the aggregate subscription amount against delivery by the Corporation of the certificates representing the Debentures.

 

10. The Corporation and the Agent shall be entitled to rely on delivery of a facsimile copy of executed Subscription Agreements, and acceptance by the Corporation of such facsimile subscriptions shall be legally effective to create a valid and binding agreement between the Subscriber and the Corporation in accordance with the terms hereof. In addition, this Subscription Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which shall constitute one and the same document.

 

General

 

11. The Subscriber agrees that the representations, warranties and covenants of the Subscriber herein will be true and correct both as of the execution of this Subscription Agreement and as of the Closing Time and will survive the completion of the issuance of the Debentures. The representations, warranties and covenants of the Subscriber herein are made with the intent that they be relied upon by the Corporation and the Agent and their respective counsel in determining the eligibility of a purchaser of Debentures and the Subscriber agrees to indemnify and hold harmless the Corporation and the Agent and their respective affiliates, shareholders, directors, officers, partners, employees and agents, from and against all losses, claims, costs, expenses and damages or liabilities whatsoever which any of them may suffer or incur which are caused or arise from a breach thereof. The

 

9


Subscriber undertakes to immediately notify the Corporation at Gastar Exploration Ltd., 888, 900 – 6 th Avenue S.W., Calgary, Alberta, T2P 3K2, Attention: Sara-Lane Sirey, Corporate Secretary (Fax Number: (403) 237-6518) and the Agent at Westwind Partners Inc., 70 York Street, 10 th Floor, Toronto, Ontario, M5J 1S9, Attention: Nick Pocrnic (Fax Number: (416) 815-1808), of any change in any statement or other information relating to the Subscriber set forth herein which takes place prior to the Closing Time.

 

12. The Subscriber acknowledges that the Agent has agreed to offer the Debentures on a best efforts marketed “private placement” basis and, in connection therewith, the Corporation and the Agent have entered into, or will enter into prior to the Closing Date, an agreement (the “ Agency Agreement ”) pursuant to which the Agent, in connection with the issue and sale of the Debentures, will receive a fee from the Corporation. The Subscriber hereby irrevocably authorizes the Agent: (a) to act as its representative at the closing and to execute in its name and on its behalf all closing receipts and documents required; (b) to complete or correct any errors or omissions in any form or document, including this Subscription Agreement, provided by the Subscriber; (c) to receive on its behalf certificates representing the Debentures purchased under this Subscription Agreement; (d) to approve any opinions, certificates or other documents addressed to the Subscriber; (e) to waive, in whole or in part, any representations, warranties, covenants or conditions for the benefit of the Subscriber and contained in the Agency Agreement; and (f) to exercise any rights of termination contained in the Agency Agreement.

 

13. The Subscriber acknowledges that this Subscription Agreement and the Exhibits hereto require the Subscriber to provide certain personal information to the Corporation. Such information is being collected by the Corporation for the purposes of completing the Offering, which includes, without limitation, determining the Subscriber’s eligibility to purchase the Debentures under applicable securities legislation, preparing and registering certificates representing Debentures to be issued to the Subscriber and completing filings required by any stock exchange or securities regulatory authority. The Subscriber’s personal information may be disclosed by the Corporation to: (a) stock exchanges or securities regulatory authorities, (b) the Corporation’s registrar and transfer agent; and (c) any of the other parties involved in the Offering, including legal counsel, and may be included in record books in connection with the Offering. By executing this Subscription Agreement, the Subscriber is deemed to be consenting to the foregoing collection, use and disclosure of the Subscriber’s personal information. The Subscriber also consents to the filing of copies or originals of any of the Subscriber’s documents described in Section 8 hereof as may be required to be filed with any stock exchange or securities regulatory authority in connection with the transactions contemplated hereby.

 

14. The Subscriber represents and warrants that the funds representing the Aggregate Subscription Price which will be advanced by the Subscriber to the Corporation hereunder will not represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) Act (Canada) (the “ PCMLA ”) and the Subscriber acknowledges that the Corporation may in the future be required by law to disclose the Subscriber’s name and other information relating to this Subscription Agreement and the Subscriber’s subscription hereunder, on a confidential basis, pursuant to the PCMLA. To the best of its knowledge (a) none of the subscription funds to be provided by the Subscriber (i) have been or will be derived from or related to any activity that is deemed criminal under the law of Canada, the United States of America, or any other jurisdiction, or (ii) are being tendered on behalf of a person or entity who has not been identified to the Subscriber, and (b) it shall promptly notify the Corporation if the Subscriber discovers that any of such representations ceases to be true, and to provide the Corporation with appropriate information in connection therewith.

 

15. The obligations of the parties hereunder are subject to acceptance of the terms of the Offering by the Toronto Stock Exchange and all other required regulatory approvals.

 

16. The Subscriber acknowledges and agrees that all costs incurred by the Subscriber (including any fees and disbursements of any special counsel retained by the Subscriber) relating to the sale of the Debentures to the Subscriber shall be borne by the Subscriber.

 

17. The contract arising out of this Subscription Agreement and all documents relating thereto, which by common accord has been or will be drafted in English, shall be governed by and construed in accordance with the laws of the Province of Alberta and the federal laws of Canada applicable therein. The parties irrevocably attorn to the exclusive jurisdiction of the courts of the Province of Alberta. Time shall be of the essence hereof.

 

18. This Subscription Agreement represents the entire agreement of the parties hereto relating to the subject matter hereof and there are no representations, covenants or other agreements relating to the subject matter hereof except as stated or referred to herein.

 

10


19. The terms and provisions of this Subscription Agreement shall be binding upon and enure to the benefit of the Subscriber and the Corporation and their respective heirs, executors, administrators, successors and assigns; provided that, except for the assignment by a Subscriber who is acting as nominee or agent for the beneficial owner and as otherwise herein provided, this Subscription Agreement shall not be assignable by any party without prior written consent of the other parties.

 

20. The Subscriber, on its own behalf and, if applicable, on behalf of others for whom it is contracting hereunder, agrees that this subscription is made for valuable consideration and may not be withdrawn, cancelled, terminated or revoked by the Subscriber, on its own behalf and, if applicable, on behalf of others for whom it is contracting hereunder.

 

21. Subject to Section 12, neither this Subscription Agreement nor any provision hereof shall be modified, changed, discharged or terminated except by an instrument in writing signed by the party against whom any waiver, change, discharge or termination is sought.

 

22. The invalidity, illegality or unenforceability of any provision of this Subscription Agreement shall not affect the validity, legality or enforceability of any other provision hereof.

 

23. The headings used in this Subscription Agreement have been inserted for convenience of reference only and shall not affect the meaning or interpretation of this Subscription Agreement or any provision hereof.

 

24. The covenants, representations and warranties contained herein shall survive the closing of the transactions contemplated hereby.

 

25. In this Subscription Agreement (excluding the Exhibits hereto) all references to dollar amounts are to United States dollars, unless otherwise indicated.

 

11


EXHIBIT 1

 

REPRESENTATION LETTER

 

(FOR ALBERTA ACCREDITED INVESTORS)

 

TO: Gastar Exploration Ltd. (the “Corporation”)
AND TO: Westwind Partners Inc. (the “Agent”)

 

In connection with the purchase of 9.75% convertible senior unsecured subordinated debentures of the Corporation (the “ Debentures ”) by the undersigned subscriber or, if applicable, the principal on whose behalf the undersigned is purchasing as agent (the “ Subscriber ” for the purposes of this Exhibit 1), the Subscriber hereby represents, warrants, covenants and certifies to the Corporation and the Agent that:

 

1. The Subscriber is resident in Alberta or is otherwise subject to applicable securities laws of the Province of Alberta;

 

2. The Subscriber is purchasing the Debentures as principal for its own account or complies with the provisions of paragraph 3(e)(i) of the Subscription Agreement;

 

3. The Subscriber is an “accredited investor” within the meaning of Multilateral Instrument 45-103 entitled “Capital Raising Exemptions” by virtue of satisfying the indicated criterion as set out in Appendix “A” to this Representation Letter; and

 

4. Upon execution of this Exhibit 1 by the Subscriber, this Exhibit 1 shall be incorporated into and form a part of the Subscription Agreement.

 

Dated:                      , 2004

 

 


Print name of Subscriber
By:  

 


    Signature

 


Print name of Signatory (if different from Subscriber)

 


Title    

 

IMPORTANT: PLEASE INITIAL THE APPLICABLE PROVISION IN

APPENDIX “A” ON THE NEXT PAGES


APPENDIX “A”

 

TO EXHIBIT 1

 

NOTE: THE INVESTOR MUST INITIAL BESIDE THE APPLICABLE PORTION OF THE DEFINITION BELOW.

 

Accredited Investor - (defined in Multilateral Instrument 45-103) means:

 

_____   (a)    a Canadian financial institution, or an authorized foreign bank listed in Schedule III of the Bank Act (Canada); or
_____   (b)    the Business Development Bank of Canada incorporated under the Business Development Bank of Canada Act (Canada); or
_____   (c)    an association under the Cooperative Credit Associations Act (Canada) located in Canada or a central cooperative credit society for which an order has been made under subsection 473(1) of that Act; or
_____   (d)    a subsidiary of any person or company referred to in paragraphs (a) to (c), if the person or company owns all of the voting securities of the subsidiary, except the voting securities required by law to be owned by directors of that subsidiary; or
_____   (e)    a person or company registered under the securities legislation of a jurisdiction of Canada, as an adviser or dealer, other than a limited market dealer registered under the Securities Act (Ontario) or the Securities Act (Newfoundland and Labrador); or
_____   (f)    an individual registered or formerly registered under the securities legislation of a jurisdiction of Canada, as a representative of a person or company referred to in paragraph (e); or
_____   (g)    the government of Canada or a jurisdiction of Canada, or any crown corporation, agency or wholly-owned entity of the government of Canada or a jurisdiction of Canada; or
_____   (h)    a municipality, public board or commission in Canada; or
_____   (i)    any national, federal, state, provincial, territorial or municipal government of or in any foreign jurisdiction, or any agency of that government; or
_____   (j)    a pension fund that is regulated by either the Office of the Superintendent of Financial Institutions (Canada) or a pension commission or similar regulatory authority of a jurisdiction of Canada; or
_____   (k)    an individual who, either alone or with a spouse, beneficially owns, directly or indirectly, financial assets having an aggregate realizable value that before taxes, but net of any related liabilities, exceeds $1,000,000; or
_____   (l)    an individual whose net income before taxes exceeded $200,000 in each of the two most recent years or whose net income before taxes combined with that of a spouse exceeded $300,000 in each of the two most recent years and who, in either case, reasonably expects to exceed that net income level in the current year; or
    (Note: if individual accredited investors wish to purchase through wholly-owned holding companies or similar entities, such purchasing entities must qualify under section (t) below, which must be initialled.)
_____     (m)    a person or company, other than a mutual fund or non-redeemable investment fund, that, either alone or with a spouse, has net assets of at least $5,000,000 and unless the person or company is an individual, that amount is shown on its most recently prepared financial statements; or


    _____   (n)    a mutual fund or non-redeemable investment fund that, in the local jurisdiction, distributes its securities only to persons or companies that are accredited investors (as defined in Multilateral Instrument 45-103); or
    _____   (o)    a mutual fund or non-redeemable investment fund that, in the local jurisdiction, is distributing or has distributed its securities under one or more prospectuses for which the regulator has issued receipts; or
    _____   (p)    a trust company or trust corporation registered or authorized to carry on business under the Trust and Loan Companies Act (Canada) or under comparable legislation in a jurisdiction of Canada or a foreign jurisdiction, trading as a trustee or agent on behalf of a fully managed account; or
    _____   (q)    a person or company trading as agent on behalf of a fully managed account if that person or company is registered or authorized to carry on business under the securities legislation of a jurisdiction of Canada or a foreign jurisdiction as a portfolio manager or under an equivalent category of adviser or is exempt from registration as a portfolio manager or the equivalent category of adviser; or
    _____   (r)    a registered charity under the Income Tax Act (Canada) that, in regard to the trade, has obtained advice from an eligibility adviser or other adviser registered to provide advice on the securities being traded; or
    _____   (s)    an entity organized in a foreign jurisdiction that is analogous to any of the entities referred to in paragraphs (a) through (e) and paragraph (j) in form and function; or
    _____     (t)    a person or company in respect of which all of the owners of interests, direct or indirect, legal or beneficial, except the voting securities required by law to be owned by directors, are persons or companies that are accredited investors (as defined in Multilateral Instrument 45-103).

 

For the purposes hereof:

 

(a) control person ” has the meaning ascribed to that term in securities legislation;

 

(b) designated securities ” means:

 

  (i) voting securities,

 

  (ii) securities that are not debt securities and that carry a residual right to participate in the earnings of the issuer or, on the liquidation or winding-up of the issuer, in its assets, or

 

  (iii) securities convertible, directly or indirectly, into securities described in paragraph (i) or (ii);

 

(c) eligibility adviser ” means an investment dealer or equivalent category of registration, registered under the securities legislation of the jurisdiction of a purchaser and authorized to give advice with respect to the type of security being distributed;

 

(d) financial assets ” means cash and securities;

 

(e) foreign jurisdiction ” means a country other than Canada or a political subdivision of a country other than Canada;

 

(f) fully managed account ” means an account for which a person or company makes the investment decisions if that person or company has full discretion to trade in securities for the account without requiring the client’s express consent to a transaction;

 

(g) jurisdiction ” means a province or territory of Canada except when used in the term foreign jurisdiction;

 

(h) local jurisdiction ” means the jurisdiction in which the Canadian securities regulatory authority is situate;

 

(i) non-redeemable investment fund” means an issuer,

 

2


  (i) where contributions of securityholders are pooled for investment,

 

  (ii) where securityholders do not have day-to-day control over the management and investment decisions of the issuer, whether or not they have the right to be consulted or to give directions, and

 

  (iii) whose securities do not entitle the securityholder to receive on demand, or within a specified period after demand, an amount computed by reference to the value of a proportionate interest in the whole or in part of the net assets of the issuer;

 

(j) regulator ” means, for the local jurisdiction, the Executive Director as defined under securities legislation of the local jurisdiction; and

 

(k) related liabilities ” means

 

  (i) liabilities incurred or assumed for the purpose of financing the acquisition or ownership of financial assets, or

 

  (ii) liabilities that are secured by financial assets.

 

All monetary references are in Canadian Dollars.

 

3


EXHIBIT 2

 

REPRESENTATION LETTER

 

(FOR ONTARIO ACCREDITED INVESTORS)

 

TO:    Gastar Exploration Ltd. (the “Corporation”)
AND TO:    Westwind Partners Inc. (the “Agent”)

 

In connection with the purchase of 9.75% convertible senior unsecured subordinated debentures of the Corporation (the “ Debentures ”) by the undersigned subscriber or, if applicable, the principal on whose behalf the undersigned is purchasing as agent (the “ Subscriber ” for the purposes of this Exhibit 2), the Subscriber hereby represents, warrants, covenants and certifies to the Corporation and the Agent that:

 

1. The Subscriber is resident in Ontario or is otherwise subject to applicable securities laws of the Province of Ontario;

 

2. The Subscriber is purchasing the Debentures as principal for its own account;

 

3. The Subscriber is an “accredited investor” within the meaning of Ontario Securities Commission Rule 45-501 promulgated under the Securities Act (Ontario) by virtue of satisfying the indicated criterion as set out in Appendix “A” to this Representation Letter; and

 

4. Upon execution of this Exhibit 2 by the Subscriber, this Exhibit 2 shall be incorporated into and form a part of the Subscription Agreement.

 

Dated:                      , 2004

 

 


Print name of Subscriber
By:  

 


    Signature

 


Print name of Signatory (if different from Subscriber)

 


Title

 

IMPORTANT: PLEASE INITIAL THE APPLICABLE PROVISION IN

APPENDIX “A” ON THE NEXT PAGES


APPENDIX “A”

 

TO EXHIBIT 2

 

NOTE: THE INVESTOR MUST INITIAL BESIDE THE APPLICABLE PORTION OF THE DEFINITION BELOW.

 

Accredited Investor - (defined in Ontario Securities Commission Rule 45-501) means:

 

_____    (a)   a bank listed in Schedule I or II of the Bank Act (Canada), or an authorized foreign bank listed in Schedule III of the Bank Act (Canada);
_____    (b)   the Business Development Bank incorporated under the Business Development Bank Act (Canada);
_____    (c)   a loan corporation or trust corporation registered under the Loan and Trust Corporations Act (Ontario) or under the Trust and Loan Companies Act (Canada), or under comparable legislation in any other jurisdiction;
_____    (d)   a co-operative credit society, credit union central, federation of caisses populaires, credit union or league, or regional caisse populaire, or an association under the Cooperative Credit Associations Act (Canada), in each case, located in Canada;
_____    (e)   a company licensed to do business as an insurance company in any jurisdiction;
_____    (f)   a subsidiary entity of any person or company referred to in paragraph (a), (b), (c), (d) or (e), where the person or company owns all of the voting shares of the subsidiary entity;
_____    (g)   a person or company registered under the Securities Act (Ontario) or securities legislation in another jurisdiction as an adviser or dealer, other than a limited market dealer;
_____    (h)   the government of Canada or of any jurisdiction, or any crown corporation, instrumentality or agency of a Canadian federal, provincial or territorial government;
_____    (i)   any Canadian municipality or any Canadian provincial or territorial capital city;
_____    (j)   any national, federal, state, provincial, territorial or municipal government of or in any foreign jurisdiction, or any instrumentality or agency thereof;
_____    (k)   a pension fund that is regulated by either the Office of the Superintendent of Financial Institutions (Canada) or a provincial pension commission or similar regulatory authority;
_____    (l)   a registered charity under the Income Tax Act (Canada);
_____    (m)   an individual who beneficially owns, or who together with a spouse beneficially own, financial assets having an aggregate realizable value that, before taxes but net of any related liabilities, exceeds $1,000,000;
_____      (n)   an individual whose net income before taxes exceeded $200,000 in each of the two most recent years or whose net income before taxes combined with that of a spouse exceeded $300,000 in each of those years and who, in either case, has a reasonable expectation of exceeding the same net income level in the current year;
     (Note: if individual accredited investors wish to purchase through wholly-owned holding companies or similar entities, such
purchasing entities must qualify under section (aa) below, which must be initialled.)


_____   (o)    an individual who has been granted registration under the Securities Act (Ontario) or securities legislation in another jurisdiction as a representative of a person or company referred to in paragraph (g), whether or not the individual’s registration is still in effect;
_____   (p)    a promoter of the issuer or an affiliated entity of a promoter of the issuer;
_____   (q)    a spouse, parent, brother, sister, grandparent or child of an officer, director or promoter of the issuer;
_____   (r)    a person or company that, in relation to the issuer, is an affiliated entity or a control person;
_____   (s)    an issuer that is acquiring securities of its own issue;
_____   (t)    a company, limited liability company, limited partnership, limited liability partnership, trust or estate, other than a mutual fund or non-redeemable investment fund, that had net assets of at least $5,000,000 as reflected in its most recently prepared financial statements;
_____   (u)    a person or company that is recognized by the Ontario Securities Commission as an accredited investor;
_____   (v)    a mutual fund or non-redeemable investment fund that, in Ontario, distributes its securities only to persons or companies that are accredited investors;
_____   (w)    a mutual fund or non-redeemable investment fund that, in Ontario, distributes its securities under a prospectus for which a receipt has been granted by the Director (as defined in the Securities Act (Ontario)), or, if it has ceased distribution of its securities, has previously distributed its securities in this manner;
_____   (x)    a fully managed account if it is acquiring a security that is not a security of a mutual fund or non-redeemable investment fund;
_____   (y)    an account that is fully managed by a trust corporation registered under the Loan and Trust Corporations Act (Ontario) or under the Trust and Loan Companies Act (Canada), or under comparable legislation in any other jurisdiction;
_____   (z)    an entity organized outside of Canada that is analogous to any of the entities referred to in paragraphs (a) through (g) and paragraph (k) in form and function; or
_____     (aa)    a person or company in respect of which all of the owners of interests, direct or indirect, legal or beneficial, are persons or companies that are accredited investors.

 

NOTE: The investor must initial beside the applicable portion of the above definition.

 

For the purposes hereof:

 

(a) company ” means any corporation, incorporated association, incorporated syndicate or other incorporated organization;

 

(b) control person ” means any person, company or combination of persons or companies holding a sufficient number of any securities of the issuer to affect materially the control of the issuer, but any holding of any person, company or combination of persons or companies holding more than 20% of the outstanding voting securities of the issuer, in the absence of evidence to the contrary, shall be deemed to affect materially the control of the issuer;

 

(c) director ” where used in relation to a person, includes a person acting in a capacity similar to that of a director of a company;

 

2


(d) entity ” means a company, syndicate, partnership, trust or unincorporated organization;

 

(e) financial assets ” means cash, securities, or any contract of insurance or deposit or evidence thereof that is not a security for the purposes of the Securities Act (Ontario);

 

(f) foreign jurisdiction ” means a country other than Canada or a political subdivision of a country other than Canada;

 

(g) fully managed account ” means an investment portfolio account of a client established in writing with a portfolio advisor who makes investment decisions for the account and has full discretion to trade in securities of the account without requiring the client’s express consent to a transaction;

 

(h) individual ” means a natural person, but does not include a partnership, unincorporated association, unincorporated syndicate, unincorporated organization, trust, or a natural person in his or her capacity as trustee, executor, administrator or other legal personal representative;

 

(i) jurisdiction ” means a province or territory of Canada except where used in the term “foreign jurisdiction”;

 

(j) mutual fund ” includes (i) an issuer, (x) whose primary purpose is to invest money provided by its security holders, and (y) whose securities entitle the holder to receive on demand, or within a specified period after demand, an amount computed by reference to the value of a proportionate interest in the whole or in a part of the net assets, including a separate fund or trust account, of the issuer, or (ii) an issuer or class of issuers that is designated as a mutual fund by an order of the Ontario Securities Commission in the case of a single issuer or otherwise in a regulation which is made for the purposes of the definition of “mutual fund” under the Securities Act (Ontario), but does not include an issuer or a class of issuer that is designated not to be a mutual fund by an order of the Ontario Securities Commission in the case of a single issuer or otherwise in a regulation which is made for the purposes of the definition of “mutual fund” under the Securities Act (Ontario);

 

(k) non-redeemable investment fund ” means an issuer:

 

  (i) whose primary purpose is to invest money provided by its securityholders;

 

  (ii) that does not invest for the purpose of exercising effective control, seeking to exercise effective control, or being actively involved in the management of the issuers in which it invests, other than other mutual funds or non-redeemable investment funds; and

 

  (iii) that is not a mutual fund;

 

(l) officer ” means the chair, any vice-chair of the board of directors, the president, any vice president, the secretary, the assistant secretary, the treasurer, the assistant treasurer, and the general manager of a company, and any other person designated an officer of a company by by-law or similar authority, or any individual acting in a similar capacity on behalf of an issuer or registrant;

 

(m) person ” means an individual, partnership, unincorporated association, unincorporated syndicate, unincorporated organization, trust, trustee, executor, administrator, or other legal representative;

 

(n) portfolio adviser ” means

 

  (i) a portfolio manager; or

 

  (ii) a broker or investment dealer exempted from registration as an adviser under subsection 148(1) of the Regulation made under the Securities Act (Ontario) if that broker or investment dealer is not exempt from the by-laws or regulations of the Toronto Stock Exchange or the Investment Dealers’ Association of Canada referred to in that subsection;

 

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(o) portfolio manager ” means an adviser registered for the purpose of managing the investment portfolio of clients through discretionary authority granted by the clients;

 

(p) promoter ” means (i) a person or company who, acting alone or in conjunction with one or more other persons, companies or a combination thereof, directly or indirectly, has taken the initiative in founding, organizing or substantially reorganizing the business of the issuer, or (ii) a person or company who, in connection with the founding, organizing or substantial reorganizing of the business of the issuer, directly or indirectly, receives in consideration of services or property, or both services and property, 10% or more of any class of securities of the issuer or 10% or more of the proceeds from the sale of any class of securities of a particular issue, but a person or company who receives such securities or proceeds either solely as underwriting commissions or solely in consideration of property shall not be deemed a promoter within the meaning of the definition of “promoter” under the Securities Act (Ontario) if such person or company does not otherwise take part in founding, organizing or substantially reorganizing the business;

 

(q) related liabilities ” means liabilities incurred or assumed for the purpose of financing the acquisition or ownership of financial assets and liabilities that are secured by financial assets; and

 

(r) spouse ”, in relation to an individual, means another individual to whom that individual is married, or another individual of the opposite sex or the same sex with whom that individual is living in a conjugal relationship outside marriage.

 

Affiliated Entities

 

(s) A person or company is considered to be an affiliated entity of another person or company if one is a subsidiary entity of the other, or if both are subsidiary entities of the same person or company, or if each of them is controlled by the same person or company.

 

Control

 

(t) A person or company is considered to be controlled by a person or company if: (i) in the case of a person or company, (x) voting securities of the first mentioned person or company carrying more than 50% of the votes for the election of directors are held, otherwise than by way of security only, by or for the benefit of, the other person or company, and (y) the votes carried by the securities are entitled, if exercised, to elect a majority of the directors of the first-mentioned person or company, (ii) in the case of a partnership that does not have directors, other than a limited partnership, the second-mentioned person or company holds more than 50% of the interests in the partnership; or (iii) in the case of a limited partnership, the general partner is the second-mentioned person or company.

 

Subsidiary Entity

 

(u) A person or company is considered to be a subsidiary entity of another person or company if: (i) it is controlled by, (x) that other, or (y) that other and one or more persons or companies each of which is controlled by that other, or (z) two or more persons or companies, each of which is controlled by that other, or (ii) it is a subsidiary entity of a person or company that is the other’s subsidiary entity.

 

All monetary references are in Canadian Dollars.

 

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LOGO

 

EXHIBIT 3

 

TORONTO STOCK EXCHANGE

 

PRIVATE PLACEMENT QUESTIONNAIRE AND UNDERTAKING

 

To be completed by each proposed private placement purchaser of listed securities or securities which are convertible into listed securities.

 

QUESTIONNAIRE

 

1.        DESCRIPTION OF TRANSACTION
     (a)    Name of Issuer of the Securities
         

Gastar Exploration Ltd.

     (b)    Number and Class of Securities to be Purchased
         

$                      (U.S.) principal amount of 9.75% Convertible Senior Unsecured Subordinated Debentures (the “Debentures”)

     (c)    Purchase Price
         

$1,000 (U.S.) per Debenture

2.    DETAILS OF PURCHASER
     (a)    Name of Purchaser: ___________________________________________________________________________________
          ___________________________________________________________________________________________________
          ___________________________________________________________________________________________________
          ___________________________________________________________________________________________________
     (b)    Address: ___________________________________________________________________________________________
          ___________________________________________________________________________________________________
          ___________________________________________________________________________________________________
          ___________________________________________________________________________________________________
     (c)    Names and addresses of persons having a greater than 10% beneficial interest in the purchaser:
          ___________________________________________________________________________________________________
          ___________________________________________________________________________________________________
          ___________________________________________________________________________________________________


3.    RELATIONSHIP TO ISSUER
     (a)    Is the purchaser (or any person named in response to 2(c) above) an insider of the issuer for the purposes of the Ontario Securities Act (before giving effect to this private placement)? If so, state the capacity in which the purchaser (or person named in response to 2(c)) qualifies as an insider.
         

                                                                                                                                                                                                     

 

                                                                                                                                                                                                     

     (b)    If the answer to (a) is “no”, are the purchaser and the issuer controlled by the same person or company? If so, give details.
         

                                                                                                                                                                                                     

 

                                                                                                                                                                                                     

4.    DEALINGS OF PURCHASER IN SECURITIES OF THE ISSUER
     Give details of all trading by the purchaser, as principal, in the securities of the issuer (other than debt securities which are not convertible into equity securities), directly or indirectly, within the 60 days preceding the date hereof.
    

                                                                                                                                                                                                     

 

                                                                                                                                                                                                     

 

UNDERTAKING

 

TO: The Toronto Stock Exchange

 

The undersigned has subscribed for and agreed to purchase, as principal, the securities described in Item 1 of this Private Placement Questionnaire and Undertaking.

 

The undersigned undertakes not to sell or otherwise dispose of any of the said securities so purchased or any securities derived therefrom for a period of four months from the date of the closing of the transaction herein or for such period as is prescribed by applicable securities legislation, whichever is longer, without the prior consent of the Toronto Stock Exchange and any other regulatory body having jurisdiction.

 

DATED at                      ,                             

 

this      day of                      , 2004

 

 


    (Name of Purchaser – please print)
   

 


    (Authorized Signature)
   

 


    (Official Capacity – please print)
   

 


    (please print here name of individual whose signature appears above, if different from name of purchaser printed above)

 

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EXHIBIT 4

 

U.S INTERNAL REVENUE SERVICE FORM W-8BEN, W-8ECI AND W-8IMY

EXHIBIT 4.7

 

SECURITIES PURCHASE AGREEMENT

 

SECURITIES PURCHASE AGREEMENT (the “ Agreement ”), dated as of June 16, 2005, by and among Gastar Exploration Ltd., an Alberta corporation, with headquarters located at 2480 W. Campus Drive, Building C, Mt. Pleasant, Michigan 48858 (the “ Company ”), and the investors listed on the Schedule of Buyers attached hereto (individually, a “ Buyer ” and collectively, the “ Buyers ”).

 

WHEREAS:

 

A. The Company and the Buyers are executing and delivering this Agreement in reliance upon the exemption from securities registration afforded by Rule 506 of Regulation D (“ Regulation D ”) as promulgated by the United States Securities and Exchange Commission (the “ SEC ”) under the Securities Act of 1933, as amended (the ” 1933 Act ”) and by the securities legislation and regulations of, and the instruments, policies, rules, orders, codes, notices and interpretation notes of the securities regulatory authorities (including the Toronto Stock Exchange) of any applicable jurisdiction, or jurisdictions collectively, in Canada (collectively, “ Canadian Securities Laws ”);

 

B. The Buyers, severally, and not jointly, initially wish to purchase from the Company, and the Company initially wishes to sell to the Buyers, upon the terms and conditions stated in this Agreement, (I) senior secured notes, substantially in the form attached as Exhibit A , in an original aggregate principal amount of $63,000,000 (such notes, together with any promissory notes or other securities issued in exchange or substitution therefor or replacement thereof, and as any of the same may be amended, restated or modified and in effect from time to time, the “ Initial Notes ”), and (II) common shares of the Company (“ Common Shares ”) as determined in accordance with Section 1(e)(i) (the “ Initial Shares ”);

 

C. Subject to the terms and conditions set forth in this Agreement, during the Additional Note Issuance Period (as defined in Section 1(b)), the Company may have the option to sell, and if the Company exercises such option, Buyers may be obligated to buy, (I) additional senior secured notes, each with a maturity date that is five (5) years and one (1) day after the date of issue thereof and otherwise substantially in the form attached as Exhibit B , in an original aggregate principal amount of up to $20,000,000 (such notes, together with any promissory notes or other securities issued in exchange or substitution therefor or replacement thereof, and as any of the same may be amended, restated, modified or supplemented and in effect from time to time, “ Additional Notes ” and, collectively with the Initial Notes, the “ Notes ,” with the certificates representing the Notes being referred to as the “ Note Certificates ”), and (II) additional Common Shares as determined in accordance with Section 1(e)(ii) (the “ Additional Shares ,” and collectively with the Initial Shares, the “ Shares ,” with the certificates representing the Shares being referred to as the “ Share Certificates ”);

 

D. Contemporaneously with the execution and delivery of this Agreement, the parties hereto are executing and delivering a Registration Rights Agreement, substantially in the form attached as Exhibit C (the “ Registration Rights Agreement ”), pursuant to which the Company has agreed to provide certain registration rights under the 1933 Act and the rules and regulations promulgated thereunder, and applicable state securities laws;

 

E. Contemporaneously with the Initial Closing (as defined in Section 1(a)), the parties hereto and the Subsidiaries (as defined in Section 3(a)) will execute and deliver a Security Agreement, substantially in the form attached as Exhibit D (the “ Security Agreement ”), pursuant to which the Company and its Subsidiaries will agree to provide the Buyers with security interests in substantially all of the assets of the Company and its Subsidiaries;

 

F. Contemporaneously with the Initial Closing, the parties hereto and each of the Subsidiaries will execute and deliver one or more Deposit Account Control Agreements, substantially in the form attached as Exhibit E (the “ Account Control Agreements ”), pursuant to which the Company and each of the Subsidiaries that maintain bank, brokerage or other similar accounts will agree to enable the Buyers to perfect their security interest in all of the Company’s and such Subsidiary’s right, title and interest in certain accounts and in all collateral from time to time credited to such accounts;


G. Contemporaneously with the Initial Closing, the Subsidiaries will execute and deliver a Guaranty, substantially in the form attached as Exhibit F (the “ Guaranty ,” and the guarantees issued thereunder being referred to herein as the “ Guarantees ”), pursuant to which the Subsidiaries will agree to guaranty certain obligations of the Company;

 

H. Contemporaneously with the Initial Closing, the Company and each of its Subsidiaries that directly owns capital stock or other equity interests of any other Subsidiary will each execute and deliver a Pledge Agreement, substantially in the form attached as Exhibit G (each, a “ Pledge Agreement ”), pursuant to which the Company and each such Subsidiary will agree to pledge all of the capital stock or other equity interests in the Subsidiaries that it directly owns to the Buyers as collateral for the Notes; and

 

I. Contemporaneously with the Initial Closing, the Buyers and the Debtors (as defined in the Security Agreement) will execute and deliver one or more Mortgages, Deeds of Trust, Assignments of Production, Security Agreements, Fixture Filings and Financing Statements, substantially in the form attached as Exhibit H (the “ Mortgages ”), pursuant to which the Debtors will agree to grant to the Buyers an interest in certain real and personal property, rights, titles, interests and estates described therein.

 

NOW THEREFORE , the Company and the Buyers hereby agree as follows:

 

1. PURCHASE AND SALE OF NOTES AND INITIAL SHARES .

 

a. Purchase and Sale of Initial Notes and Initial Shares . Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(a) and 7(a) below, the Company shall sell to each Buyer, and each Buyer severally agrees to purchase from the Company on the Initial Closing Date (as defined in Section 1(c)) (the “ Initial Closing ”), (i) Initial Notes in the principal amount set forth opposite such Buyer’s name on the Schedule of Buyers, which Initial Notes shall be issued to such Buyer on the Initial Closing Date, and (ii) Common Shares, which Common Shares shall be issued to such Buyer on the Initial Closing Date and on each of the dates that are six (6) months, 12 months and 18 months after the Initial Closing Date (subject to Sections 1(e)(iii), (iv), (v) and (vii)), in such numbers as shall be determined in accordance with Section 1(e)(i). The purchase price (the “ Initial Purchase Price ”) of the Initial Notes and the related Initial Shares shall be equal to $1.00 for each $1.00 of principal amount of the Initial Notes purchased (representing an aggregate Initial Purchase Price of $63,000,000 for the aggregate original principal amount of $63,000,000 of Initial Notes and the Initial Shares to be purchased at the Initial Closing).

 

b. Purchase and Sale of Additional Notes and Additional Shares. Subject to the satisfaction (or waiver) of the conditions set forth in Sections 1(d), 6(b) and 7(b) below, during the period commencing on August 17, 2005 and ending on June 16, 2007 (the “ Additional Note Issuance Period ”), the Company may elect to sell Additional Notes and Additional Shares to the Buyers. At any time within the twenty (20) consecutive Business Days (as defined in this Section 1(b)) immediately following the Company’s timely (without giving effect to any extensions of time permitted by Rule 12b-25 under the 1934 Act (as defined in the Notes) or any similar provision of Canadian Securities Laws) filing of a quarterly report on Form 10-Q or annual report on Form 10-K, or the equivalent thereof under Canadian Securities Laws, as the case may be (a “Periodic Report ”), during the Additional Note Issuance Period, the Company may, in its sole discretion, deliver via facsimile and overnight courier a written notice, executed by the principal executive officer and principal financial officer of the Company, to each Buyer electing to sell Additional Notes and Additional Shares to the Buyers (an “ Additional Sale Election Notice ”). The Additional Sale Election Notice shall set forth the aggregate principal amount of Additional Notes to be sold to the Buyers (the “ Additional Note Issuance Amount ”) on an Additional Closing Date (as defined in Section 1(d)), which shall not be less than $5,000,000; provided , however , that (A) the sum of the Additional Note Issuance Amount and the aggregate principal amount of all other Additional Notes issued and sold by the Company at any time pursuant to this Agreement shall not exceed $20,000,000 in the aggregate and (B) the Additional Note Issuance Amount shall not exceed the greatest amount, if any, that could have been added to the Net Debt Amount (as defined in the Notes) as of the end of the quarterly or annual period covered by the most recently filed Periodic Report without there being a Reserve Test Failure (as defined in the Notes) as of such date, provided that solely for purposes of determining the satisfaction of the condition set forth in this clause (B), the Required Proved and Probable PV10 Reserve Test Ratio (as defined in the Notes) for the twelve (12)-month period beginning on the

 

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Initial Closing Date shall be 2 to 1 (the limitations on the Additional Note Issuance Amount set forth in the immediately preceding clauses (A) and (B) being collectively referred to as the “ Additional Note Issuance Amount Limitations ”), and if the Additional Note Issuance Amount cannot be at least $5,000,000 as a result of the Additional Note Issuance Amount Limitations, the Company may not deliver an Additional Sale Election Notice and may not issue or sell any Additional Notes on such Additional Closing Date. The Additional Sale Election Notice shall also (i) set forth (x) each Buyer’s principal amount of Additional Notes to be purchased (determined as provided in the next sentence), (y) the Additional Closing Date for the purchase and sale of Additional Notes and Additional Shares pursuant to such Additional Sale Election Notice (determined as provided in Section 1(d)), and (z) the applicable Pricing Period (as defined in Section 1(e)(iii)(A)) and (ii) certify that the Company is in compliance with the condition set forth in clause (B) of this Section 1(b) and that, as of the date of the Company’s delivery of the Additional Sale Election Notice, all of the other conditions set forth in this Section 1(b) and Section 1(d) are satisfied (unless any such condition has been waived in writing by the applicable Buyer). In the event that the Company delivers an Additional Sale Election Notice in accordance with the foregoing, subject to the conditions set forth in this Section 1(b) and Sections 1(d), 6(b) and 7(b) below, the Company shall sell to each Buyer, and each Buyer severally agrees to buy from the Company, on the applicable Additional Closing Date (an “ Additional Closing ”), (X) Additional Notes in a principal amount equal to the product of the Additional Note Issuance Amount, multiplied by such Buyer’s Allocation Percentage (as defined in Section 1(e)), which Additional Notes shall be issued on the Additional Closing Date, and (Y) Additional Shares, which Additional Shares shall be issued on the Additional Closing Date and on each of the dates that are six (6) months, 12 months and 18 months after the Additional Closing Date (subject to Sections 1(e)(iii) (iv), (v) and (vii)), in such numbers as shall be determined in accordance with Section 1(e)(ii). The purchase price (the “ Additional Purchase Price ” and, together with the Initial Purchase Price, each the “ Purchase Price ”) of the Additional Notes and the Additional Shares at the applicable Additional Closing shall be equal to $1.00 for each $1.00 of principal amount of the Additional Notes purchased. “ Business Day ” means any day other than Saturday, Sunday or other day on which commercial banks in the City of New York or, so long as the Company’s transfer agent is located in Canada, the City of Toronto, are authorized or required by law to remain closed.

 

c. The Initial Closing Date . The date and time of the Initial Closing (the “ Initial Closing Date ”) shall be 10:00 a.m., New York City time, on the first Business Day following the date of this Agreement, subject to the satisfaction (or waiver) of all of the conditions to the Initial Closing set forth in Sections 6(a) and 7(a) (or such later or earlier date as is mutually agreed to by the Company and the Buyers). The Initial Closing shall occur on the Initial Closing Date at the offices of Katten Muchin Rosenman LLP, 525 West Monroe Street, Chicago, Illinois 60661-3693 or at such other time, date and place as the Company and the Buyers may collectively designate in writing.

 

d. Additional Closing Dates . The date and time of any Additional Closing (an “ Additional Closing Date ” and, together with the Initial Closing Date, each a “ Closing Date ”) shall be 10:00 a.m., New York City time, on the sixth (6th) Trading Day following receipt by each Buyer of an Additional Sale Election Notice, subject to the satisfaction (or waiver) of the conditions to the Additional Closing set forth in Sections 1(b), 6(b) and 7(b) and the conditions set forth in this Section 1(d) or the waiver thereof in writing by such Buyer (or such later date as is mutually agreed to by the Company and the Buyers). Notwithstanding the foregoing, the Company shall not be entitled to deliver an Additional Sale Election Notice unless each of the following conditions is satisfied (or waived in writing by the applicable Buyer) as of and through the date on which the Company delivers to each Buyer the applicable Additional Sale Election Notice (the “ Additional Sale Election Notice Date ”), and no Buyer shall be required to purchase Additional Notes and Additional Shares unless each of the following conditions and the conditions set forth in Sections 1(b) and 7(b) are satisfied (or waived in writing by the applicable Buyer) as of and through the applicable Additional Closing Date (the “ Additional Sale Election Notice Conditions ”): (i) during the period beginning on the date of this Agreement and ending on and including the applicable Additional Closing Date, there shall not have occurred either (x) the public announcement of a pending, proposed or intended Change of Control (as defined in the Notes) which has not been abandoned or terminated and publicly announced as such or (y) an Event of Default (as defined in the Notes); (ii) during the forty-five (45)-day period ending on and including such Additional Closing Date, there shall not have occurred an event that with the passage of time or the giving of notice would constitute an Event of Default; (iii) at all times during the period beginning on the date of this Agreement and ending on such Additional Closing Date, the Common Shares shall be listed on the Principal Market (as defined in Section 3(s)) and the Common Shares shall not have been suspended from trading nor shall delisting or suspension

 

3


by any securities exchange or market have been threatened either (A) in writing by such exchange or market or (B) by falling below the minimum listing maintenance requirements of such exchange or market; (iv) during the period beginning on the Initial Closing Date and ending on and including such Additional Closing Date, the Company shall have delivered the Shares on a timely basis in accordance with Section 1(e); (v) as of the Additional Sale Election Notice Date and as of such Additional Closing Date, Notes remain outstanding; (vi) there is not outstanding any Indebtedness (as defined in the Notes) of the Company or any of the Subsidiaries (as defined in Section 3(a)) that the Company or any Subsidiary is prohibited from issuing, incurring, assuming, maintaining or suffering to exist under Section 4(n) or would be prohibited from issuing, incurring, assuming, maintaining or suffering to exist under Section 4(n) if the Additional Notes proposed to be issued on the Additional Closing Date were outstanding at the time of such issuance, incurrence, assumption, maintenance or sufferance; (vii) no Permitted Subordinated Indebtedness (as defined in Section 4(n)) that is outstanding on the applicable Additional Closing Date matures or otherwise requires or permits redemption or repayment on or prior to the Maturity Date (as defined in the Notes) of the Additional Notes proposed to be issued on the applicable Additional Closing Date; and (viii) no capital stock of the Company or any Subsidiary is redeemable on or prior to the Maturity Date of the Additional Notes proposed to be issued on the applicable Additional Closing Date. Any Additional Closing shall occur on the applicable Additional Closing Date at the offices of Katten Muchin Rosenman LLP, 525 West Monroe Street, Chicago, Illinois 60661-3693 or at such other time, date and place as the Company and the Buyers may collectively designate in writing.

 

e. Issuance of Equity Shares .

 

(i) On the Initial Closing Date and, in accordance with the applicable Subscription Receipts (as defined in Section 1(f)), on each of the dates that are six (6) months, 12 months and 18 months after the Initial Closing Date (or, if any such anniversary does not fall on a Business Day, the next Business Day thereafter) (each such date an “ Initial Delivery Date ”), the Company shall issue to each Buyer that number of Initial Shares equal to the quotient of (A) the product (such product, an “ Initial Share Issuance Amount ”) of (I) such Buyer’s allocation percentage (as set forth opposite such Buyer’s name in the fourth column on the Schedule of Buyers (such Buyer’s “ Allocation Percentage ”)), multiplied by (II) CDN $4,500,000, divided by (B) the arithmetic average of the Weighted Average Price (as defined in this Section 1(e)(i)) of the Common Shares on each of the five (5) consecutive Trading Days immediately preceding such Initial Delivery Date (each such five (5) Trading Day period, being referred to as an “ Initial Pricing Period ”). “ Weighted Average Price ” means, for the Common Shares as of any date, the volume-weighted average price for the Common Shares on its Principal Market (as defined in Section 3(s)) (quoted in the currency in which trading occurs in the Principal Market) during the period beginning at 9:30 a.m., New York City Time (or such other time as the Principal Market publicly announces is the official open of trading), and ending at 4:00 p.m., New York City Time (or such other time as the Principal Market publicly announces is the official close of trading), as reported by Bloomberg Financial Markets (or any successor thereto, “ Bloomberg ”) through its “Volume at Price” functions, or, if the foregoing does not apply, the dollar volume-weighted average price of the Common Shares in the over-the-counter market on the electronic bulletin board for the Common Shares during the period beginning at 9:30 a.m., New York City Time (or such other time as such over-the-counter market publicly announces is the official open of trading), and ending at 4:00 p.m., New York City Time (or such other time as such over-the-counter market publicly announces is the official close of trading), as reported by Bloomberg, or, if no volume-weighted average price is reported for the Common Shares by Bloomberg for such hours, the average of the highest closing bid price and the lowest closing ask price of any of the market makers for the Common Shares as reported in the “pink sheets” by the National Quotation Bureau, Inc. If the Weighted Average Price cannot be calculated for the Common Shares on such date on any of the foregoing bases, the Weighted Average Price of the Common Shares on such date shall be the fair market value as mutually determined by the Company and the Buyers that purchased at least two-thirds (2/3) of the Initial Notes. If the Principal Market is a United States securities exchange or trading market, the Weighted Average Price shall be converted into Canadian dollars using the mid-range rate for the purchase of Canadian dollars as of the close of business on the Business Day immediately preceding the date of determination, as reported in the New York edition of the Wall Street Journal. If the Company and any Buyer are unable to agree upon the fair market value of the Common Shares, then such dispute shall be resolved pursuant to Section 1(g) below. All determinations of Weighted Average Price are to be appropriately adjusted for any share dividend, share split, share combination or other similar transaction during any period during which the Weighted Average Price is being determined. “ Trading Day ” means any day on which the Common Shares are traded on the Principal Market; provided that

 

4


“Trading Day” shall not include any day on which the Common Shares are scheduled to trade, or actually trade on the Principal Market for less than 4.5 hours.

 

(ii) On an Additional Closing Date and, in accordance with the applicable Subscription Receipts, on each of the dates that are six (6) months, 12 months and 18 months after such Additional Closing Date (or, if any such date does not fall on a Business Day, the next Business Day thereafter) (each such date an “ Additional Delivery Date ”), the Company shall issue to each Buyer that number of Additional Shares equal to the quotient of (A) the product (such product, an “ Additional Share Issuance Amount; the Initial Share Issuance Amounts and the Additional Share Issuance Amounts being collectively referred to as the “ Share Issuance Amounts ”) of (I) such Buyer’s Allocation Percentage, multiplied by (II) one-fourteenth (1/14) of the Additional Note Issuance Amount relating to such Additional Closing Date, expressed in Canadian dollars assuming an exchange rate of one Canadian dollar for each U.S. dollar, divided by (B) the arithmetic average of the Weighted Average Price of the Common Shares on each of the five (5) consecutive Trading Days immediately preceding the Additional Delivery Date.

 

(iii) (A) In connection with a Change of Control (as defined in the Notes) or a Non-Surviving Organic Change (as defined in Section 1(e)(iii)(B)), the Company shall make a Change of Control Announcement (in accordance with, and as defined in, Section 4(w)), and contemporaneously with the making of such Change of Control Announcement, the Company shall deliver written notice thereof via facsimile and overnight courier to each Buyer, which notice shall set forth the Change of Control Price (as defined below) and the number of Shares to be issued to such Buyer (determined as set forth in this Section 1(e)(iii)), together with details regarding the calculation thereof. At any time prior to the earlier of (1) the closing or other consummation of the Change of Control or Non-Surviving Organic Change and (2) the abandonment or termination of the Change of Control or Non-Surviving Organic Change and the Public Disclosure thereof, any Buyer may require, by delivering written notice to the Company via facsimile (a “ Change of Control Share Issuance Acceleration Notice ”), that the Company issue to such Buyer (subject to Sections 1(e)(iv), (v) and (vii)) all of the Shares that have been purchased by, but have not yet been issued to, such Buyer (i.e., because the Company would otherwise be obligated to issue such Shares to such Buyer on Initial Delivery Dates and/or Additional Delivery Dates (as well as Deferred Delivery Dates) scheduled to occur on or after the date of such Buyer’s delivery of the Change of Control Share Issuance Acceleration Notice). Such Buyer’s delivery of a Change of Control Share Issuance Acceleration Notice shall constitute a representation by such Buyer that, upon issuance of the Shares to be issued to such Buyer on such Buyer’s Change of Control Delivery Date (as defined below) as provided below, such Buyer and its affiliates will not beneficially own, or exercise control or direction over for purposes of the Canadian Securities Laws, more than 9.99% of the outstanding Common Shares immediately after giving effect to such issuance. Immediately upon any Buyer’s delivery to the Company of a Change of Control Share Issuance Acceleration Notice (a “ Change of Control Delivery Date, ” and along with any other Change of Control Delivery Date and each Initial Delivery Date and Additional Delivery Date, each a “ Delivery Date ”), the Company shall issue and deliver to such Buyer (subject to Sections 1(e)(iv), (v) and (vii)), that number of Common Shares equal to the quotient of (X) the sum of such Buyer’s Share Issuance Amounts relating to each of the Initial Delivery Dates and Additional Delivery Dates scheduled to occur on or after the applicable Change of Control Delivery Date, divided by (Y) an amount (the “ Change of Control Price ”) equal to the lesser of (I) the arithmetic average of the Weighted Average Price of the Shares on each of the five (5) consecutive Trading Days immediately preceding the Change of Control Announcement (the “ Change of Control Pricing Period ,” and along with the Initial Pricing Period and the Additional Pricing Period, each a “ Pricing Period ”), and (II) the value of the aggregate consideration to be received by the holders of Common Shares for each Common Share in connection with the Change of Control or Non-Surviving Organic Change (which amount, in the event that the consideration to be received by holders of Common Shares in connection with the Change in Control or Non-Surviving Organic Change does not consist entirely of cash, shall be based on the exchange ratio and the fair market value of any securities or other property, as well as any cash, to be received by such holders), along with any Shares with respect to any Delivery Date prior to the Change of Control Delivery Date, the issuance of which to such Buyer has been deferred to a date on or after the Change of Control Delivery Date pursuant to Section 1(e)(iv). In the event that any Buyer does not deliver a Change of Control Share Issuance Acceleration Notice prior to the closing or other consummation of a Change of Control or Non-Surviving Organic Change, then simultaneously with such closing or other consummation, the Company shall pay to such Buyer, by wire transfer of immediately available funds, an amount in cash equal to the sum of (A) the sum of such Buyer’s Share Issuance Amounts relating to each of the Initial Delivery Dates and

 

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Additional Delivery Dates scheduled to occur on or after the date of the closing or other consummation of the Change of Control or Non-Surviving Organic Change, and (B) the product of (I) the number of any Shares with respect to any Delivery Date prior to the closing or other consummation of the Change of Control or Non-Surviving Organic Change the issuance of which to such Buyer has been deferred to a date on or after the date of the closing or other consummation of the Change of Control or Non-Surviving Organic Change pursuant to Section 1(e)(iv), multiplied by (II) the arithmetic average of the Weighted Average Price of the Common Shares on each of the five (5) consecutive Trading Days immediately preceding such Delivery Date. The rights of the Buyers under this paragraph are in addition to any rights or remedies of the Buyers under this Agreement, the Notes or otherwise.

 

(B) Any recapitalization, reorganization, reclassification, consolidation, merger, sale of all or substantially all of the Company’s assets to another Person or other transaction that is effected in such a way that holders of Common Shares are entitled to receive (either directly or upon subsequent liquidation) stock, securities or assets with respect to, or in exchange for, Common Shares, is referred to herein as an “ Organic Change .” A “ Non-Surviving Organic Change ” means (i) a sale of all or substantially all of the Company’s assets (including, for the avoidance of doubt, the sale of all or substantially all of the assets of the Company’s Subsidiaries in the aggregate) or (ii) an Organic Change following which the Company is not the surviving entity. The provisions of this Section 1(e) shall be binding upon any entity succeeding to the Company or its assets by an Organic Change. Prior to the consummation of any Organic Change (other than a Non-Surviving Organic Change), the Company shall make appropriate provision (in form and substance satisfactory to Buyers that purchased at least two-thirds (2/3) of the aggregate principal amount of the Initial Notes) to ensure that each Buyer will thereafter have the right to acquire and receive in lieu of or in addition to (as the case may be) the Common Shares subsequently issuable hereunder (without regard to any limitations or restrictions on issuance) such shares of stock, securities or assets that would have been issued or payable in such Organic Change with respect to, or in exchange for, the number of Common Shares that such Buyer is ultimately entitled to receive (without taking into account any limitations or restrictions on the issuance) if such Buyer had owned all such Common Shares as of the date of consummation of such Organic Change.

 

(iv) At least 15 Business Days prior to an Initial Delivery Date (after the Initial Closing Date) or Additional Delivery Date, the Company shall deliver to each Buyer a written notice via facsimile setting forth the Delivery Date and the Trading Days that shall comprise the Pricing Period as of such Delivery Date. At least one (1) Trading Day prior to any Delivery Date (other than a Change of Control Delivery Date), each Buyer shall deliver to the Company a written notice (a “ Delivery Request Notice ”) setting forth the number of Common Shares requested by such Buyer to be issued to such Buyer on such Delivery Date (the “ Requested Number of Shares ”). Such Buyer’s delivery of a Delivery Request Notice shall constitute a representation that, upon issuance of the Requested Number of Shares to such Buyer on such Delivery Date, such Buyer and its affiliates will not beneficially own, or exercise control or direction over, for purposes of the Canadian Securities Laws, more than 9.99% of the outstanding Common Shares immediately after giving effect to such issuance. Notwithstanding anything to the contrary contained in this Agreement, no Buyer will be entitled to receive, and the Company will not issue to any Buyer on any date, any Shares in excess of that number of Common Shares that would cause such Buyer and its affiliates to beneficially own 9.99% of the Common Shares outstanding immediately after such issuance. In no event shall the Company issue to such Buyer on any Delivery Date (or any Deferred Delivery Date (as defined in Section 1(e)(v))), other than a Change of Control Delivery Date, a number of Shares in excess of the Requested Number of Shares set forth in such Buyer’s applicable Delivery Request Notice. The remaining Shares, if any, otherwise issuable to such Buyer on such Delivery Date, but for the limitations set forth in this Section 1(e)(iv), shall be issued to such Buyer in accordance with Section 1(e)(v). In the event that any Buyer does not deliver a Delivery Request Notice to the Company at least one (1) Trading Day prior to a Delivery Date (other than a Change of Control Delivery Date), the Company shall not issue any Shares to such Buyer on such Delivery Date, and such Shares shall be issued to such Buyer in accordance with Section 1(e)(v) hereof. For purposes of the foregoing, the aggregate number of Common Shares beneficially owned by a Buyer and its affiliates shall include the number of Shares to be issued pursuant to this Agreement on the applicable Delivery Date in accordance with this Section 1(e)(iv), but shall exclude all other Shares otherwise issuable to such Buyer and its affiliates pursuant to this Agreement and all other Common Shares that would be issuable upon exercise, conversion or exchange of the unexercised, unconverted or unexchanged portion of any other securities of the Company beneficially owned by such Buyer and its affiliates (including any other convertible notes or preferred stock) subject to a limitation on conversion, exercise or exchange analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d)

 

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of the 1934 Act. For purposes of this Agreement, in determining the number of outstanding Common Shares, a Buyer may rely on the number of outstanding Common Shares as reflected in (1) the Company’s most recent Periodic Report, (2) a more recent public announcement by the Company or (3) any other notice by the Company or its transfer agent setting forth the number of Common Shares outstanding. Upon the written request of any Buyer, the Company shall promptly, but in no event later than one (1) Business Day following the receipt of such request, confirm in writing to any such Buyer the number of Common Shares then outstanding. In any case, the number of outstanding Common Shares shall be determined after giving effect to the issuance of Shares to such Buyer and its affiliates pursuant to this Agreement, and the conversion, exercise or exchange of securities of the Company by such Buyer and its affiliates, since the date as of which such number of outstanding Common Shares was reported.

 

(v) In the event that Shares issuable to a Buyer on any Delivery Date, but for the limitations set forth in Section 1(e)(iv), are not issued to such Buyer on a Delivery Date, the Company shall issue to such Buyer on the fifth (5th) Trading Day after such Delivery Date and every fifth (5th) Trading Day thereafter (each a “ Deferred Delivery Date ”), out of the Shares that were not issued to such Buyer on such Delivery Date as a result of Section 1(e)(iv), the Requested Number of Shares set forth in a Delivery Request Notice delivered to the Company by such Buyer at least one (1) Trading Day prior to such Deferred Delivery Date, or such fewer number of Shares as would result in all of the Shares issuable to such Buyer on the applicable Delivery Date, but for the limitations set forth in Section 1(e)(iv), having been issued to such Buyer (and if such Buyer fails to so deliver a Delivery Request Notice to the Company, no Shares shall be issued to such Buyer on such Deferred Delivery Date).

 

(vi) In the event that at any time after a date on which the number of Shares issuable to any Buyer on any Delivery Date, but for the limitations set forth in Section 1(e)(iv), are calculated, (A) the Common Shares have been subdivided (by share split, share dividend or otherwise), the number of Shares to be issuable to such Buyer pursuant to this Section 1(e) shall be proportionately increased, and (B) the Common Shares have been combined (by reverse stock split or otherwise), the number of Shares to be issuable to such Buyer pursuant to this Section 1(e) shall be proportionately decreased.

 

(vii) The Company shall not be obligated to issue any Shares if the issuance of such Shares would exceed that number of Common Shares that the Company may issue (the “ Exchange Cap ”) without breaching the Company’s obligations under the rules or regulations of the Principal Market (as defined in Section 3(s)). Until Shareholder Approval (as defined in Section 4(k)) is obtained, no Buyer shall be issued Shares in an amount greater than the result of (A) the product of (1) the Exchange Cap, multiplied by (2) such Buyer’s Allocation Percentage, minus (B) the aggregate number of Shares already issued to such Buyer pursuant to this Agreement. In the event that on any Delivery Date or Deferred Delivery Date, the Company is prohibited from issuing any Shares as a result of the operation of this Section 1(e)(vii), the Company shall pay to such Buyer by wire transfer of immediately available U.S. funds on such Delivery Date or Deferred Delivery Date, as applicable, an amount in cash equal to the product of (i) the number of Shares that are not issued to such Buyer on such Delivery Date or Deferred Delivery Date, as applicable, as a result of the operation of this Section 1(e)(vii), multiplied by (ii) the arithmetic average of the Weighted Average Price of the Common Shares on each of the five (5) consecutive Trading Days immediately preceding such Delivery Date or Deferred Delivery Date, as applicable.

 

(viii) If the Company shall fail for any reason or for no reason to issue and deliver to any Buyer on any Delivery Date or Deferred Delivery Date, Share Certificates for the number of Shares to which such Buyer is entitled on such Delivery Date or Deferred Delivery Date (taking into account the limitations on the issuance of Shares set forth in this Agreement), then, at the Buyer’s election, the Company shall (in addition to any other remedies under this Agreement or the Notes or otherwise available to such Buyer, including any indemnification under Section 8) pay by wire transfer of immediately available U.S. funds to such Buyer, no later than five (5) Business Days after such failure, an amount equal to the result of (A) the sum of all of such Buyer’s Share Issuance Amounts relating to the Closing with respect to the Shares for which the Company has failed to deliver Share Certificates, less (B) the product of (I) the number of Shares previously issued to such Buyer with respect to such Closing, and (II) the arithmetic average of the Weighted Average Price of the Common Shares on each of the five (5) consecutive Trading Days immediately preceding such Delivery Date or Deferred Delivery Date, as applicable.

 

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(ix) Notwithstanding anything contained herein to the contrary, the Company shall not directly or indirectly provide any Buyer with any material non-public information by any notice given or other action taken pursuant to this Section 1(e).

 

f. Form of Payment and Delivery of Shares . On the Initial Closing Date, (i) each Buyer shall pay the applicable Purchase Price to the Company for the Initial Notes and Initial Shares to be sold to such Buyer on such Initial Closing Date, by wire transfer of immediately available U.S. funds in accordance with the Company’s written wire instructions, less any amount withheld pursuant to Section 4(h), and (ii) the Company shall deliver to each Buyer, (x) Note Certificates (in the principal amounts as such Buyer shall request) representing such principal amount of the Notes that such Buyer is purchasing hereunder at such Initial Closing, (y) Share Certificates representing the Initial Shares to be issued to such Buyer on the Initial Closing Date, as provided in Section 1(e), and (z) subscription receipts, substantially in the form of Exhibit I (“ Subscription Receipts ”), representing such Buyer’s right to receive Initial Shares on the dates that are six (6) months, 12 months and 18 months after the Initial Closing Date. On each Additional Closing Date, (I) each Buyer shall pay the applicable Purchase Price to the Company for the Additional Notes and the Additional Shares to be sold to such Buyer on such Additional Closing Date, by wire transfer of immediately available U.S. funds in accordance with the Company’s written wire instructions, less any amount withheld pursuant to Section 4(h), and (II) the Company shall deliver to each Buyer (x) Note Certificates (in the principal amounts as such Buyer shall request) representing such principal amount of the Notes issuable to such Buyer at such Additional Closing, (y) Share Certificates representing the Additional Shares to be issued to such Buyer on such Additional Closing Date, as provided in Section 1(e), and (z) Subscription Receipts, representing such Buyer’s right to receive Additional Shares on the dates that are six (6) months, 12 months and 18 months after the Additional Closing Date. On each Delivery Date or Deferred Delivery Date other than the Initial Closing Date or an Additional Closing Date, the Company shall issue and deliver to each Buyer Share Certificates, registered in the name of such Buyer or its designee, representing the number of Common Shares to be issued to such Buyer on such Delivery Date or Deferred Delivery Date, as applicable, as provided in Section 1(e). Upon any Delivery Date or Deferred Delivery Date, a Buyer shall be deemed for all purposes to have become the holder of record of the Shares requested by such Buyer (as set forth in a Delivery Request Notice or a Change of Control Share Issuance Acceleration Notice, as applicable) to be issued to such Buyer pursuant to Section 1(e) on such Delivery Date or Deferred Delivery Date, as applicable (taking into account the limitations on the issuance of Shares set forth in this Agreement, including, without limitation, Section 1(e)(iv)), irrespective of the date of delivery of the Share Certificates evidencing such Shares.

 

g. Disputes . In the case of a dispute between the Company and any Buyer as to the determination of the Weighted Average Price or the arithmetic calculation of the number of Shares to be issued to such Buyer, the Company shall promptly issue to such Buyer the number of Shares that is not disputed and shall submit the disputed determinations or arithmetic calculations to the Buyer via facsimile within one (1) Business Day of the applicable Delivery Date. If such Buyer and the Company are unable to agree upon the determination of the Weighted Average Price or arithmetic calculation of the number of Shares to be issued to such Buyer within one (1) Business Day of such disputed determination or arithmetic calculation being submitted to such Buyer, then the Company shall promptly submit via facsimile (i) the disputed determination of the Weighted Average Price to an independent, reputable investment banking firm agreed to by the Company and such Buyer or (ii) the disputed arithmetic calculation of the number of Shares to its independent, outside public accountant. The Company shall direct the investment banking firm or the accountant, as the case may be, to perform the determinations or calculations and notify the Company and the Buyer of the results no later than two (2) Business Days after the date it receives the disputed determinations or calculations. Such investment banking firm’s or accountant’s determination or calculation, as the case may be, shall be deemed conclusive absent demonstrable error.

 

h. Fractional Shares . No fractional Common Shares are to be issued pursuant to this Section 1, but rather the number of Common Shares to be issued pursuant to this Section 1 shall be rounded up or down to the nearest whole number (with 0.5 rounded up).

 

i. Foreign Exchange; Interest . All payments to a Buyer under this Agreement or any of the other Transaction Documents shall be made in lawful money of the United States of America, by wire transfer of immediately available funds to such accounts as such Buyer may from time to time designate by written notice in accordance with Section 9(f) of this Agreement. All references herein and in each of the other Transaction

 

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Documents to “dollars” or “$” shall mean the lawful money of the United States of America, unless otherwise specifically identified as “CDN $” or “Canadian dollars.” If the amount of any cash payment to be made under Section 1(e) or any other provision of any of the Transaction Documents is computed in Canadian currency, such amount shall be converted, if necessary, into U.S. dollars using the mid-range rate for the purchase of Canadian dollars at the close of business on the Business Day immediately preceding the date of determination in New York, New York as published in the New York edition of The Wall Street Journal . Any amounts payable pursuant to this Agreement that are not paid when due shall bear interest at the rate equal to the lesser of (i) 1.5% per month (equivalent to a per annum rate of 18.0%), prorated for partial months, or (ii) the highest lawful interest rate per annum.

 

2. BUYER’S REPRESENTATIONS AND WARRANTIES .

 

Each Buyer represents and warrants, as of the date of this Agreement, the Initial Closing Date and each Additional Closing Date, with respect to only itself, that:

 

a. Investment Purpose . Such Buyer is acquiring the Notes (together with the related Guarantees) and the Shares (together with the related Subscription Receipts) purchased by such Buyer hereunder (the Notes, the Guarantees, the Shares and the Subscription Receipts being collectively referred to herein as the “ Securities ”) for its own account and not with a view towards, or for resale in connection with, the public sale or distribution thereof, except pursuant to sales registered or exempted under the 1933 Act; provided , however , that by making the representations herein, such Buyer does not agree to hold any of the Securities for any minimum or other specific term and reserves the right to dispose of the Securities at any time in accordance with or pursuant to a registration statement or an exemption under the 1933 Act.

 

b. Accredited Investor Status . Such Buyer is an “accredited investor” as that term is defined in Rule 501(a) of Regulation D and under applicable Canadian Securities Laws.

 

c. Reliance on Exemptions . Such Buyer understands that the Securities are being offered and sold to it in reliance on specific exemptions from the registration requirements of the United States federal and state securities laws and from the prospectus requirements of the Canadian Securities Laws and that the Company is relying in part upon the truth and accuracy of, and such Buyer’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of such Buyer set forth herein in order to determine the availability of such exemptions and the eligibility of such Buyer to acquire the Securities.

 

d. Information . Such Buyer and its advisors, if any, have been furnished with all materials relating to the business, finances and operations of the Company and materials relating to the offer and sale of the Securities that have been requested by such Buyer. Such Buyer and its advisors, if any, have been afforded the opportunity to ask questions of the Company. Neither such inquiries nor any other due diligence investigations conducted by such Buyer or its advisors, if any, or its representatives shall modify, amend or affect such Buyer’s right to rely on the Company’s representations and warranties contained in Sections 3 and 9(l) below. Such Buyer understands that its investment in the Securities involves a high degree of risk. Such Buyer has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to its acquisition of the Securities.

 

e. No Governmental Review . Such Buyer understands that no United States federal or state agency, Canadian federal, provincial or territorial agency or any other government or governmental agency has passed on or made any recommendation or endorsement of the Securities or the fairness or suitability of the investment in the Securities nor have such authorities passed upon or endorsed the merits of the offering of the Securities.

 

f. Transfer or Resale . Such Buyer understands that, except as provided in the Registration Rights Agreement, (i) the Securities have not been and are not being registered under the 1933 Act or any state securities laws or the equivalent thereto under Canadian Securities Laws, and may not be offered for sale, sold, assigned or transferred unless (A) subsequently registered thereunder, (B) such Buyer shall have delivered to the

 

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Company an opinion of counsel, knowledgeable as to such securities laws, in a generally acceptable form, to the effect that such Securities to be sold, assigned or transferred may be sold, assigned or transferred pursuant to an exemption from such registration, or (C) such Buyer provides the Company with reasonable assurance that such Securities can be sold, assigned or transferred pursuant to Rule 144 promulgated under the 1933 Act, as amended (or a successor rule thereto) (“ Rule 144 ”), and other applicable state and Canadian Securities Laws; (ii) any sale of the Securities made in reliance on Rule 144 may be made only in accordance with the terms of Rule 144, and further, if Rule 144 is not applicable, any resale of the Securities under circumstances in which the seller (or the person through whom the sale is made) may be deemed to be an underwriter (as that term is defined in the 1933 Act) may require compliance with some other exemption under the 1933 Act or the rules and regulations of the SEC thereunder; and (iii) neither the Company nor any other person is under any obligation to register the Securities under the 1933 Act, any state securities laws or Canadian Securities Laws or to comply with the terms and conditions of any exemption thereunder. Such Buyer further understands that, except as provided under Canadian Securities Laws, the Securities purchased in the Initial Closing, regardless of when issued or delivered to such Buyer, may not be transferred or resold in Canada prior to the date that is four months and one day after the Initial Closing Date, and the securities purchased in any Additional Closing, regardless of when issued or delivered to such Buyer, may not be transferred or resold in Canada prior to the date that is four months and one day after the Additional Closing Date. Notwithstanding the foregoing, the Securities may be pledged in connection with a bona fide margin account or other loan or financing arrangement secured by the Securities.

 

g. Legends . Such Buyer understands that the Note Certificates, the Subscription Receipts and, until such time as the sale of the Shares has been registered under the 1933 Act as contemplated by the Registration Rights Agreement, the Share Certificates, except as set forth below, shall bear a restrictive legend in substantially the following form (the “ 1933 Act Legend ”) (and a stop-transfer order may be placed against transfer of such stock certificates):

 

THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS OR (B) AN OPINION OF INDEPENDENT U.S. COUNSEL, IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS OR (II) UNLESS SOLD PURSUANT TO RULE 144 UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.

 

The legend set forth above shall be removed and the Company shall issue a certificate without such legend to the holder of the Securities upon which it is stamped, if (i) such Securities are registered for resale under the 1933 Act, (ii) in connection with a sale transaction, such holder provides the Company with an opinion of counsel, in a generally acceptable form, to the effect that a public sale, assignment or transfer of the Securities may be made without registration under the 1933 Act or applicable state securities laws or Canadian Securities Laws, (iii) such holder provides the Company with reasonable assurances that the Securities can be sold pursuant to Rule 144(k), or (iv) such holder provides the Company reasonable assurances that the Securities have been or are being sold pursuant to Rule 144. Each Buyer acknowledges, covenants and agrees to sell the Securities represented by a certificate(s) from which the legend has been removed, only pursuant to (x) a registration statement effective under the 1933 Act and in compliance with the rules regarding the delivery of a current prospectus included therein, (y) advice of counsel that such sale is exempt from registration required by Section 5 of the 1933 Act and an exemption under applicable state securities laws or Canadian Securities Laws, or (z) a transaction pursuant to Rule 144.

 

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In addition, the Note Certificates, the Subscription Receipts and any Share Certificates representing any Shares issued prior to the date that is four (4) months and one (1) day after the Closing Date on which such Shares were purchased (i.e., the date on which the Subscription Receipts with respect thereto were issued) shall bear the following legends:

 

UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE SHALL NOT TRADE THE SECURITIES IN CANADA BEFORE              , 200    [Date that is four (4) months and one (1) day after the applicable Closing Date to be inserted].

 

and any Share Certificates representing any Shares issued prior to the date that is four (4) months and one (1) day after the applicable Closing Date on which such Shares were purchased (i.e., the date on which the Subscription Receipts with respect thereto were issued) shall also bear the following legend:

 

THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE LISTED ON THE TORONTO STOCK EXCHANGE; HOWEVER, THE SAID SECURITIES MAY NOT BE TRADED THROUGH THE FACILITIES OF SUCH EXCHANGE SINCE THEY ARE NOT FREELY TRANSFERABLE AND CONSEQUENTLY ANY CERTIFICATE REPRESENTING SUCH SECURITIES IS NOT “GOOD DELIVERY” IN SETTLEMENT OF TRANSACTIONS ON THE TORONTO STOCK EXCHANGE.

 

provided , however , that at any time subsequent to the date that is four (4) months and one (1) day after the applicable Closing Date, any Note Certificate, Share Certificate or Subscription Receipt may be exchanged for a Note Certificate, Share Certificate or Subscription Receipt, as applicable, bearing no such legends (other than the 1933 Act Legend to the extent required as set forth above). The Company shall (in the case of a Note Certificate or Subscription Receipt), or shall cause the registrar and transfer agent for the Common Shares to (in the case of a Share Certificate), deliver the Note Certificate, Share Certificate or Subscription Receipt, as applicable, within three (3) Business Days after receipt of the legended Note Certificate, Share Certificate or Subscription Receipt, as applicable.

 

h. Authorization; Enforcement; Validity . Such Buyer is a validly existing corporation, partnership, limited liability company or other entity and has the requisite corporate, partnership, limited liability or other organizational power and authority to purchase the Securities pursuant to this Agreement. This Agreement and the Registration Rights Agreement have been duly and validly authorized, executed and delivered on behalf of such Buyer and are valid and binding agreements of such Buyer enforceable against such Buyer in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, fraudulent conveyance or similar laws affecting creditors’ rights generally and general principles of equity. The Security Agreement, the Account Control Agreements and each of the other agreements entered into and other documents executed by such Buyer in connection with the transactions contemplated hereby and thereby as of the Initial Closing or any Additional Closing will have been duly and validly authorized, executed and delivered on behalf of such Buyer as of the Initial Closing or such Additional Closing, as applicable, and will be valid and binding agreements of such Buyer enforceable against such Buyer in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, fraudulent conveyance or similar laws affecting creditors’ rights generally and general principles of equity.

 

i. Residency . Such Buyer is a resident of that jurisdiction specified below its address on the Schedule of Buyers .

 

j. Prior Transactions . During the period commencing on April 1, 2005, and ending on the Trading Day immediately preceding the Initial Closing Date, such Buyer did not purchase or sell any Common Shares.

 

3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY .

 

The Company represents and warrants, as of the date of this Agreement, the Initial Closing Date and each Additional Closing Date, to each of the Buyers, that:

 

a. Organization and Qualification . Set forth in Schedule 3(a) is a true and correct list of the entities in which the Company, directly or indirectly, owns capital stock or holds an equity or similar interest. Each of the Company and its Subsidiaries is a corporation, limited liability company, partnership or other entity and is

 

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duly organized and validly existing in good standing under the laws of the jurisdiction in which it is incorporated and has the requisite corporate, partnership, limited liability company or other organizational power and authority to own its properties and to carry on its business as now being conducted. Each of the Company and its Subsidiaries is duly qualified to do business and is in good standing in every jurisdiction in which its ownership of property or the nature of the business conducted by it makes such qualification necessary, except to the extent that the failure to be so qualified or be in good standing could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. As used in this Agreement, “ Material Adverse Effect ” means any material adverse effect on the business, properties, assets, operations, results of operations or financial condition of the Company and its Subsidiaries taken as a whole or on the transactions contemplated hereby or on the agreements and instruments to be entered into in connection herewith, or on the authority or ability of the Company or any Subsidiary to perform its obligations under the Transaction Documents. Except as set forth in Schedule 3(a) , the Company holds all right, title and interest in and to 100% of the capital stock, equity or similar interests of each of its Subsidiaries, in each case, free and clear of any Liens (as defined below), including any restriction on the use, voting, transfer, receipt of income or other exercise of any attributes of free and clear ownership by a current holder, and no such Subsidiary owns capital stock or holds an equity or similar interest in any other Person. “ Lien ” means, with respect to any asset, any mortgage, lien, pledge, hypothecation, charge, security interest, encumbrance or adverse claim of any kind and any restrictive covenant, condition, restriction or exception of any kind that has the practical effect of creating a mortgage, lien, pledge, hypothecation, charge, security interest, encumbrance or adverse claim of any kind (including any of the foregoing created by, arising under or evidenced by any conditional sale or other title retention agreement, the interest of a lessor with respect to a Capital Lease Obligation (as defined in the Notes), or any financing lease having substantially the same economic effect as any of the foregoing). “ Subsidiary ” means any entity in which the Company, on the date of this Agreement or at any time thereafter, directly or indirectly (i) beneficially owns or otherwise holds more than 49% of the equity or similar interests, (ii) beneficially owns or otherwise holds more than 49% of the outstanding securities entitled to vote generally in the election of such entity’s directors (or the equivalent thereof), (iii) if the entity is a limited partnership, is the controlling general partner, (iv) if the entity is a limited liability company, is a controlling manager or managing member, or (v) otherwise has the ability or right to control, directly or indirectly (whether by ownership, contractual right or otherwise), the management and policies of such entity.

 

b. Authorization; Enforcement; Validity . Each of the Company and the applicable Subsidiaries has the requisite corporate power and authority to enter into and perform its obligations under each of this Agreement, the Registration Rights Agreement, the Irrevocable Transfer Agent Instructions (as defined in Section 5), the Notes, the Security Agreement, the Account Control Agreements, the Guaranty, the Mortgages, the Pledge Agreement, each of the other agreements to which it is a party or by which it is bound and which is entered into by the parties hereto in connection with the transactions contemplated hereby and thereby (collectively, the “ Transaction Documents ”), and to issue the Securities in accordance with the terms hereof and thereof. The execution and delivery of the Transaction Documents by the Company and, to the extent applicable, its Subsidiaries and the consummation by the Company and its Subsidiaries of the transactions contemplated hereby and thereby, including the issuance of up to $63,000,000 in principal amount of the Initial Notes and the Initial Shares to be issued at the Initial Closing and the reservation for issuance and the issuance of the Initial Shares to be issued on each of the dates that are six (6) months, 12 months and 18 months after the Initial Closing Date, have been duly authorized by the Company’s Board of Directors and no further consent or authorization is required by the Company, its Board of Directors or its shareholders, except as contemplated by Section 4(k) and except for authorization by the Company’s Board of Directors for the issuance of in excess of $63,000,000 in principal amount of the Notes and the Additional Shares contemplated by this Agreement. This Agreement and the other Transaction Documents dated of even date herewith have been duly executed and delivered by the Company and, to the extent applicable, its Subsidiaries and constitute the valid and binding obligations of each of the Company and its Subsidiaries that is a party thereto, enforceable against such parties in accordance with their terms, except as may be limited by bankruptcy, insolvency, fraudulent conveyance or similar laws affecting creditors’ rights generally and general principles of equity. As of each of the Closings, the Transaction Documents dated after the date of this Agreement and on or prior to the date of such Closing shall have been duly executed and delivered by such parties and shall constitute the valid and binding obligations of each of the Company and its Subsidiaries that is a party thereto, enforceable against such parties in accordance with their terms, except as may be limited by bankruptcy, insolvency, fraudulent conveyance or similar laws affecting creditors’ rights generally and general principles of equity.

 

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c. Capitalization . As of the date of this Agreement, the authorized capital of the Company consists of an unlimited number of Common Shares, of which as of the date of this Agreement 123,100,316 shares are issued and outstanding, 16,934,600 shares are reserved for issuance pursuant to the Company’s share option, restricted shares and share purchase plans and 11,846,603 shares are issuable and reserved for issuance pursuant to securities exercisable or exchangeable for, or convertible into, Common Shares. All of such outstanding or issuable shares have been, or upon issuance will be, validly issued and are, or upon issuance will be, fully paid and nonassessable. Except as disclosed in Schedule 3(c) , (A) no shares in the capital of the Company or any of its Subsidiaries are subject to preemptive rights or any other similar rights or any Liens suffered or permitted by the Company or any of its Subsidiaries; (B) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exercisable for, any shares of the capital of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares in capital of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exercisable for, any shares in the capital of the Company or any of its Subsidiaries; (C) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act or the equivalent thereof under Canadian Securities Laws (other than the Registration Rights Agreement); (D) there are no outstanding securities or instruments of the Company or any of its Subsidiaries that contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (E) there are no securities or instruments containing anti-dilution or similar provisions that will or may be triggered by the issuance of the Securities; and (F) the Company does not have any share appreciation rights or “phantom share” plans or agreements or any similar plan or agreement. The Company has furnished to each Buyer true and correct copies of (i) the Company’s Articles of the Corporation, as amended and as in effect on the date this representation is made (the “ Articles of the Corporation ”), (ii) the Company’s Bylaws, as amended and as in effect on the date this representation is made (the “ Bylaws ”), (iii) the organizational documents and by-laws of each of the Company’s Subsidiaries, as amended and as in effect on the date this representation is made, and (iv) the terms of all securities convertible into, or exercisable or exchangeable for, Common Shares, outstanding on the date this representation is made. The Limited Partnership Agreement, or equivalent organizational and governing document, of First Source Gas, LP, a Delaware limited partnership (the “ FSG Limited Partnership Agreement ”), does not require that the partnership and other economic interests therein be certificated or otherwise represented in tangible form, or be treated as “securities” under the provisions of the Uniform Commercial Code of the State of Delaware, nor are such interests in certificated or otherwise represented in tangible form, or treated as “securities” under the provisions of the Uniform Commercial Code of the State of Delaware. The Limited Liability Company Operating Agreement, or equivalent organizational and governing document, of Bossier Basin, LLC, a Delaware limited liability company (the “ BB Limited Liability Company Operating Agreement ”), does not require that the membership and other economic interests therein be certificated or otherwise represented in tangible form, or be treated as “securities” under the provisions of the Uniform Commercial Code of the State of Delaware, nor are such interests in certificated or otherwise represented in tangible form, or treated as “securities” under provisions of the Uniform Commercial Code of the State of Delaware.

 

d. Issuance of Securities . The Notes are duly authorized and, upon issuance in accordance with the terms hereof, shall be (i) free from all taxes and Liens with respect to the issuance thereof and (ii) entitled to the rights set forth in the Notes. The Shares are duly authorized and, upon issuance in accordance with the terms hereof, will be validly issued, fully paid and nonassessable and free from taxes and Liens with respect to the issuance thereof, with the holders being entitled to all rights accorded to a holder of Common Shares. Assuming the accuracy of the representations and warranties of the Buyers set forth in Section 2(a), 2(b), 2(d), 2(h) and 2(i), the issuance by the Company and its Subsidiaries of the Securities is exempt from registration under the 1933 Act, applicable state securities laws and Canadian Securities Laws.

 

e. No Conflicts . The execution and delivery of the Transaction Documents by the Company and, if applicable, its Subsidiaries, the performance by such parties of their obligations thereunder and the consummation by such parties of the transactions contemplated thereby (including the reservation for issuance and issuance of the Shares) will not (i) result in a violation of the Articles of the Corporation or the Bylaws or the organizational documents of any Subsidiary; (ii) conflict with, or constitute a breach or default (or an event which,

 

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with the giving of notice or lapse of time or both, constitutes or would constitute a breach or default) under, or give to others any right of termination, amendment, acceleration or cancellation of, or other remedy with respect to, any agreement, indenture or instrument to which the Company or any of its Subsidiaries is a party; (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations, Canadian Securities Laws and the rules and regulations of the Principal Market (as defined in Section 3(s)) applicable to the Company or any of its Subsidiaries or by which any property or asset of the Company or any of its Subsidiaries is bound or affected. Neither the Company nor any of its Subsidiaries is in violation of any term of its Articles of the Corporation (or other organizational charter) or its bylaws (or partnership or operating agreement), as applicable. Neither the Company nor any of its Subsidiaries is in violation of any term of or in default under (or with the giving of notice or lapse of time or both would be in violation of or default under) any contract, agreement, mortgage, indebtedness, indenture, instrument, judgment, decree or order or any statute, rule or regulation applicable to the Company or its Subsidiaries, except where such violation or default could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or to result in the acceleration of Indebtedness or other obligation. The business of the Company and its Subsidiaries is not being conducted, and shall not be conducted, in violation of any law, ordinance or regulation of any governmental entity except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Except for the filings and listings contemplated by the Registration Rights Agreement or described in Section 4(b) and Section 4(g), and the filing of instruments to perfect security interests, none of the Company and its Subsidiaries is required to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency or any regulatory or self-regulatory agency in order for it to execute, deliver or perform any of its obligations under or contemplated by the Transaction Documents in accordance with the terms hereof or thereof. All consents, authorizations, orders, filings and registrations that the Company or any of its Subsidiaries is required to obtain as described in the preceding sentence have been obtained or effected on or prior to the date of this Agreement. The Company and its Subsidiaries are in material compliance with any provisions of the Sarbanes-Oxley Act of 2002, as amended, and the rules and regulations thereunder (collectively, “ Sarbanes-Oxley ”), applicable to the Company or any of its Subsidiaries.

 

f. Securities Law Documents; Financial Statements . Since December 31, 2003, the Company has filed all reports, schedules, forms, statements and other documents required to be filed by it with the SEC pursuant to any applicable reporting requirements of the 1934 Act or to be filed by it pursuant to Canadian Securities Laws (all of the foregoing filed prior to the date this representation is made (including all exhibits included therein and financial statements and schedules thereto and documents incorporated by reference therein) being hereinafter referred to as the “ Securities Law Documents ”). A complete and accurate list of the Securities Law Documents is set forth on Schedule 3(f) . The Company has made available to the Buyers or their respective representatives true and complete copies of the Securities Law Documents. Each of the Securities Law Documents was filed with the SEC or filed pursuant to Canadian Securities Laws, as applicable, within the time frames prescribed by the SEC or under Canadian Securities Laws, as applicable, for the filing of such Securities Law Documents such that each filing was timely made. As of their respective dates, the Securities Law Documents complied in all material respects with the requirements of the laws, rules and regulations applicable to the Securities Law Documents. None of the Securities Law Documents, at the time they were filed with the SEC or under Canadian Securities Laws, as applicable, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. As of their respective dates, the consolidated financial statements of the Company and its Subsidiaries included in the Securities Law Documents complied as to form in all material respects with applicable accounting requirements and the published securities laws, rules and regulations applicable thereto. Such consolidated financial statements have been prepared in accordance with U.S. or Canadian generally accepted accounting principles (as applicable), consistently applied, during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company and its Subsidiaries as of the dates thereof and the results of their operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). Since December 31, 2003, none of the Company and its Subsidiaries, or any of their respective officers, directors or Affiliates (as defined in Section 4(j)) has made any other filing with the SEC or under Canadian Securities Laws, as applicable, or has issued any press release on behalf of the Company or any of its Subsidiaries that contains any untrue statement of a material fact or omits any statement of material fact necessary in order to make the statements therein, in the light of the circumstances under which they are or were

 

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made, not misleading. To the Knowledge of the Company (as defined in Section 3(h)), none of the Company, its Subsidiaries and their respective officers, directors, employees or agents has provided the Buyers with any material, nonpublic information, other than information regarding the transactions contemplated hereby or the Geostar Transaction (as defined in Section 4(d)). Except as expressly contemplated by the Transaction Documents, the Company is not required to file and will not be required to file any agreement, note, lease, mortgage, deed or other instrument entered into prior to the date this representation is made and in effect on the date this representation is made and to which the Company or any Subsidiary is a party or by which the Company or any Subsidiary is bound that has not been previously filed as an exhibit (including by way of incorporation by reference) to its reports filed or made with the SEC under the 1934 Act or under Canadian Securities Laws, as applicable. The accounting firm that has expressed its opinion with respect to the consolidated financial statements included in the Company’s most recently filed Annual Information Form (the “ Audit Opinion ”) is independent of the Company pursuant to the standards promulgated by the SEC in Rule 2-01 of Regulation S-X or set forth in Canadian Securities Laws, as applicable, and such firm was otherwise qualified to render the Audit Opinion under applicable laws. There is no transaction, arrangement or other relationship between the Company and an unconsolidated or other off-balance-sheet entity that is required to be disclosed by the Company in its Securities Law Documents that has not been so disclosed.

 

g. Absence of Certain Changes . Except as disclosed in any Securities Law Documents that were filed with the SEC or with regulatory authorities pursuant to Canadian Securities Laws at least five (5) days prior to the date of this Agreement, since December 31, 2003, there has been no Material Adverse Effect. Neither the Company nor any of its Subsidiaries has taken any steps, and neither the Company nor any of its Subsidiaries currently expects to take any steps to seek protection pursuant to any bankruptcy law nor does the Company have any Knowledge or reason to believe that the creditors of the Company or any of its Subsidiaries intend to initiate involuntary bankruptcy proceedings or any Knowledge of any fact that would reasonably lead a creditor to do so. Neither the Company nor any of its Subsidiaries is as of the date this representation is made, nor after giving effect to the transactions contemplated hereby, will be Insolvent (as defined below). For purposes of this Section 3(g), “ Insolvent ” means (i) the present fair saleable value of the Company’s assets is less than the amount required to pay the Company’s total indebtedness, contingent or otherwise, (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur, prior to the second anniversary of the date this representation is made, or believes that it will incur, prior to the second anniversary of the date this representation is made, debts that would be beyond its ability to pay as such debts mature or (iv) the Company has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted. Except as disclosed in Schedule 3(g) , since December 31, 2003, the Company has not declared or paid any dividends or sold any assets outside of the ordinary course of business, individually or in the aggregate, in excess of $1,000,000. Except as disclosed in Schedule 3(g) , since December 31, 2003, the Company has not had any capital expenditures outside the ordinary course of its business that individually or in the aggregate are in excess of $1,000,000.

 

h. Absence of Litigation . Except as disclosed in any Securities Law Documents that were filed with the SEC or with regulatory authorities pursuant to Canadian Securities Laws, at least five (5) Business Days prior to the date of this Agreement, or as set forth on Schedule 3(h) , (i) there is no, nor since February 1, 2004 has there been, any action, suit, proceeding, inquiry or investigation before or by any court, public board, government agency, self-regulatory organization or body pending or, to the Knowledge of the Company, threatened against or affecting the Company, the Common Shares or any of the Company’s Subsidiaries or any of the Company’s or its Subsidiaries’ officers or directors in their capacities as such, and (ii) to the Knowledge of the Company, none of the directors or officers of the Company has been involved in securities-related litigation during the past five (5) years. None of the matters described in Schedule 3(h) , regardless of their outcome, could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The “ Knowledge ” of the Company means, unless otherwise specified, the actual knowledge of any “officer” (as such term is defined in Rule 16a-1 under the 1934 Act) of the Company or of any Subsidiary.

 

i. Acknowledgment Regarding Buyer’s Purchase of Securities . The Company acknowledges and agrees that each of the Buyers is acting solely in the capacity of an arm’s length purchaser with respect to the Company in connection with the Transaction Documents and the transactions contemplated hereby and thereby. The Company further acknowledges that each Buyer is not acting as a financial advisor or fiduciary of the Company

 

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(or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated hereby and thereby, and any advice given by any of the Buyers or any of their respective representatives or agents in connection with the Transaction Documents and the transactions contemplated hereby and thereby is merely incidental to such Buyer’s purchase of the Securities. The Company further represents to each Buyer that the Company’s decision to enter into the Transaction Documents has been based solely on the independent evaluation by the Company and its representatives.

 

j. No Undisclosed Events, Liabilities or Developments . Except for the issuance of the Notes and Shares contemplated by this Agreement or as set forth on Schedule 3(j), no event, liability or development has occurred or exists with respect to the Company or its Subsidiaries or their respective business, properties, operations or financial condition, that would be required to be disclosed by the Company under applicable securities laws at the time this representation is made that has not been publicly disclosed one (1) Trading Day prior to the date that this representation is made.

 

k. No General Solicitation . Neither the Company, nor any of its affiliates, nor any Person acting on its or their behalf, has provided to the Buyers any document or materials that would constitute an offering memorandum within the meaning of Canadian Securities Laws, nor has engaged or will engage in any form of general solicitation or general advertising (within the meaning of Regulation D under the 1933 Act), including advertisements, articles, notices, or other communications published in any newspaper, magazine or similar media or broadcast over radio, television or internet or any seminar meeting whose attendees have been invited by general solicitation or general advertising, in connection with the offer or sale of the Securities.

 

l. No Integrated Offering . Neither the Company, nor any of its affiliates, nor any person acting on its or their behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would require registration of any of the Securities under the 1933 Act or the equivalent thereto under Canadian Securities Laws or cause this offering of the Securities to be integrated with prior offerings by the Company for purposes of the 1933 Act or the equivalent thereto under Canadian Securities Laws or any applicable shareholder approval provisions of the Principal Market or any other authority, nor will the Company or any of its Subsidiaries take any action or steps that would require registration of the issuance of any of the Securities under the 1933 Act or the equivalent thereto under Canadian Securities Laws or cause the offering of the Securities to be integrated with other offerings for purposes of the 1933 Act or the equivalent thereto under Canadian Securities Laws or any applicable shareholder provision of the Principal Market or any other authority.

 

m. Dilutive Effect . The Company understands and acknowledges that the number of Shares issuable will increase in certain circumstances. The Company further acknowledges that any obligation to issue the Shares in accordance with this Agreement is, in each case, absolute and unconditional regardless of the dilutive effect that such issuance may have on the ownership interests of other shareholders of the Company.

 

n. Employee Relations . Neither the Company nor any of its Subsidiaries is involved in any labor union dispute nor, to the Knowledge of the Company, is any such dispute threatened. None of the Company’s or its Subsidiaries’ employees is a member of a union that relates to such employee’s relationship with the Company, and neither the Company nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and its Subsidiaries believe that their relationships with their employees are good. Except as set forth in Schedule 3(n) , no executive officer (as defined in Rule 501(f) of the 1933 Act or under applicable Canadian Securities Laws), nor any other Person (as defined in the Notes) whose termination would be required to be disclosed pursuant to Item 5.02 of Form 8-K under the 1934 Act (if the Company were required to file such reports) or under applicable Canadian Securities Laws, has notified the Company that such Person intends to leave the Company or otherwise terminate such Person’s employment with the Company. No executive officer, to the Knowledge of the Company, is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant, and the continued employment of each such executive officer does not subject the Company or any of its Subsidiaries to any liability with respect to any of the foregoing matters. The Company and its Subsidiaries are in compliance with all U.S. and Canadian federal, state, provincial, territorial, local and foreign laws and regulations relating to employment and employment practices, terms and

 

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conditions of employment and wages and hours, except where the failure to be in compliance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

o. Intellectual Property Rights . Except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, the Company and its Subsidiaries own or possess adequate rights or licenses to use all trademarks, trade names, service marks, service mark registrations, service names, patents, patent rights, copyrights, inventions, licenses, approvals, governmental authorizations, trade secrets and other intellectual property rights necessary to conduct their respective businesses as now conducted. Except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, none of the Company’s and its Subsidiaries’ trademarks, trade names, service marks, service mark registrations, service names, patents, patent rights, copyrights, inventions, licenses, approvals, governmental authorizations, trade secrets and other intellectual property rights has expired or terminated. Except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, the Company has no Knowledge of any infringement by the Company or any of its Subsidiaries of trademarks, trade names, service marks, service mark registrations, service names, patents, patent rights, copyrights, inventions, licenses, trade secrets or other intellectual property rights of others, or of any development of similar or identical trade secrets or technical information by others. There is no claim, action or proceeding being made or brought against, or to the Company’s Knowledge being threatened against, the Company or any of its Subsidiaries regarding its trademarks, trade names, service marks, service mark registrations, service names, patents, patent rights, copyrights, inventions, licenses or trade secrets, or infringement of other intellectual property rights, except for such claims, actions or proceedings that, regardless of the outcome, could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company and its Subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality and value of all of their intellectual properties, except where failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

p. Environmental Laws . Except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or a Property Material Adverse Effect (as defined in Section 3(s)), the Company and its Subsidiaries (after giving effect to the Geostar Transaction) (I) are in compliance with any and all Environmental Laws (as defined below), (II) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses as presently conducted and (III) are in compliance with all terms and conditions of any such permit, license or approval. The term “ Environmental Laws ” means all U.S. and Canadian federal, state, provincial, territorial, local and foreign laws, relating to pollution or protection of human health or the environment (including ambient air, surface water, groundwater, land surface or subsurface strata), including laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, or toxic or hazardous substances or wastes into the environment, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of hazardous materials, as well as all authorizations, codes, decrees, demands or demand letters, injunctions, judgments, licenses, notices or notice letters, orders, permits, plans or regulations issued, entered, promulgated or approved thereunder.

 

q. Personal Property . The Company and its Subsidiaries have good and valid title to all personal property owned by them (including personal property being acquired in the Geostar Transaction) that is material to the business of the Company and its Subsidiaries, in each case free and clear of all Liens except such as are described in Schedule 3(q) and Permitted Liens. Except as set forth in Schedule 3(q) , all such material personal property is located in the United States.

 

r. Insurance . The Company and each of its Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as management of the Company believes to be prudent and customary in the businesses in which the Company and its Subsidiaries are engaged. Neither the Company nor any such Subsidiary has been refused any insurance coverage sought or applied for within one (1) year prior to the date this representation is made, and neither the Company nor any such Subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

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s. Regulatory Permits . Except as set forth on Schedule 3(s) or as could not, individually or in the aggregate, reasonably be expected to have any of (i) a Material Adverse Effect, (ii) a Property Material Adverse Effect, or (iii) a Property Material Adverse Effect on the production, extraction, transportation or sale of oil, gas, minerals and/or other Hydrocarbons (as defined in the Mortgages) from any portion of the Real Property (as defined in Section 3(cc)) that produced oil, gas, minerals and/or other Hydrocarbons in the Company’s fiscal year most recently completed prior to the time this representation is made (“ Producing Property ”), the Company and its Subsidiaries possess all certificates, authorizations, approvals, licenses and permits issued by the appropriate U.S. and Canadian federal, state, provincial, territorial or foreign regulatory authorities necessary to conduct their respective businesses as conducted at the time this representation is made (“ Permits ”), and neither the Company nor any such Subsidiary has received any notice of proceedings relating to the revocation or modification of any such Permit. Without limiting the foregoing, except as set forth on Schedule 3(s) or as could not, individually or in the aggregate, reasonably be expected to have any of (i) a Material Adverse Effect, (ii) a Property Material Adverse Effect, or (iii) a Property Material Adverse Effect on the production, extraction, transportation or sale of oil, gas, minerals and/or other Hydrocarbons (as defined in the Mortgages) from any Producing Property, the Company and its Subsidiaries possess all Permits necessary to produce, extract, transport and sell the oil, gas, minerals and/or other Hydrocarbons in that portion of Real Property that is producing oil, gas, minerals and/or other Hydrocarbons at the time this representation is made. Except as set forth in Schedule 3(s) or as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or a Property Material Adverse Effect, the Company and its Subsidiaries have no reason to believe that they will not be able to obtain necessary Permits as and when necessary to enable the Company to produce, extract, transport and sell the oil, gas, minerals and/or other Hydrocarbons in the Real Property. Except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or result in the delisting, suspension or termination of trading of the Common Shares by the Principal Market or any other securities exchange or trading market, the Company is not in violation of any of the rules, regulations or requirements of the Toronto Stock Exchange (the “ Principal Market ”; provided , however , that, if at any time after the date of this Agreement the Common Shares become listed on a U.S. national securities exchange, the NASDAQ National Market or the NASDAQ Small Cap Market, the “ Principal Market ” shall mean such U.S. national securities exchange, the NASDAQ National Market or the NASDAQ Small Cap Market, as applicable) or any other securities exchange or trading market, as applicable. The Company has no Knowledge of any facts or circumstances that would reasonably lead to delisting, suspension or termination of trading of the Common Shares by the Principal Market or any other securities exchange or trading market in the foreseeable future. Since December 31, 2003, (i) the Company’s Common Shares have been listed on the Principal Market, (ii) trading in Common Shares have not been suspended by the SEC, applicable securities regulatory authorities under Canadian Securities Laws, the Principal Market or any other securities exchange or trading market, as applicable, and (iii) the Company has received no communication, written or oral, from the SEC, applicable securities regulatory authorities under Canadian Securities Laws, the Principal Market, or any other securities exchange or trading market, as applicable, regarding the delisting, suspension, or termination of trading of the Common Shares from the Principal Market or any other securities exchange or trading market. “ Property Material Adverse Effect ” means any material adverse effect on the business, properties, assets, operations, results of operations or financial condition of the Company and its Subsidiaries, taken as a whole, with respect to any geographical areas in which the Company or its Subsidiaries have Real Property that is described in the Company’s Annual Information Form or Annual Report on Form 10-K most recently filed prior to the date the representation is made or any geographical area that will be required to be described in the next Annual Information Form or Annual Report on Form 10-K to be filed by the Company after the date this representation is made, or that otherwise is material to the Company and the Subsidiaries; provided , however , that an event, occurrence or condition shall not be deemed to have or result in a Property Material Adverse Effect if it could not (alone or together with any other events, occurrences and/or conditions) cause or result in a decrease in revenues to the Company and its Subsidiaries (taken as a whole) from production, or a diminution in the value to the Company and its Subsidiaries (taken as a whole) of, any Real Property, individually or in the aggregate, by more than $2,500,000.

 

t. Internal Accounting Controls; Disclosure Controls and Procedures . The Company and each of its Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset and liability accountability, (iii) access to assets or incurrence of liability is permitted only in accordance with management’s general or specific authorization and (iv) the

 

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recorded accountability for assets and liabilities is compared with the existing assets and liabilities at reasonable intervals and appropriate action is taken with respect to any differences. The Company maintains controls and procedures that are effective to ensure that the information required to be disclosed by the Company in the reports that it files with or submits to the SEC and/or pursuant to Canadian Securities Laws, as applicable, is recorded, processed, summarized and reported accurately within the time periods specified in the rules and forms promulgated by the SEC or under Canadian Securities Laws, as applicable.

 

u. No Materially Adverse Contracts, Etc. Neither the Company nor any of its Subsidiaries is subject to any charter, corporate or other legal restriction, or any judgment, decree, order, rule or regulation that in the judgment of the Company’s officers has, or is expected in the future to have, a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is a party to any contract or agreement that in the judgment of the Company’s officers has or is expected to have a Material Adverse Effect.

 

v. Tax Status . The Company and each of its Subsidiaries (i) has made or filed all foreign, U.S. and Canadian federal, state, provincial and territorial income and all other tax returns, reports and declarations required by any jurisdiction to which it is subject (unless and only to the extent that the Company and each of its Subsidiaries has set aside on its books provisions reasonably adequate for the payment of all unpaid and unreported taxes), (ii) has paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such returns, reports and declarations, except those being contested in good faith and for which the Company has made appropriate reserves on its books, and (iii) has set aside on its books provisions reasonably adequate for the payment of all taxes for periods subsequent to the periods to which such returns, reports or declarations (referred to in clause (i) above) apply. There are no unpaid taxes in any material amount claimed in writing to be due by the taxing authority of any jurisdiction, and to the Company’s Knowledge, there is no basis for any such claim.

 

w. Transactions With Affiliates . Except as set forth in Schedule 3(w) , no Related Party (as defined in Section 4(j)) of the Company or any of its Subsidiaries, nor any of their respective affiliates, is presently, or has been within the past two (2) years, a party to any transaction, contract, agreement, instrument, commitment, understanding or other arrangement or relationship with the Company or any of its Subsidiaries (other than for services as an employee, officer and/or director), whether for the furnishing of services to or by, providing for rental of real or personal property to or from, or otherwise requiring payments or consideration to or from any such Related Party. Except as set forth in Schedule 3(w) , no Related Party of the Company or any of its Subsidiaries, or any of their respective affiliates, has any direct or indirect ownership interest in any Person (other than ownership of less than 1% of the outstanding Common Shares of a publicly traded corporation) in which the Company or any of its Subsidiaries has any direct or indirect ownership interest or with which the Company or any of its Subsidiaries competes or has a business relationship.

 

x. No Application of Takeover Protections . No control share acquisition, business combination or other similar anti-takeover provision under the Articles of the Corporation, Canadian Securities Laws or any other applicable law is or could reasonably be expected to become applicable to the Buyers as a result of the transactions contemplated by this Agreement, including the Company’s issuance of the Securities and the Buyers’ ownership of the Securities.

 

y. Rights Agreement . The Company has not adopted a shareholder rights plan or similar arrangement relating to accumulations of beneficial ownership of Common Shares or a change in control of the Company.

 

z. Foreign Corrupt Practices . Neither the Company, nor any of its Subsidiaries, nor to the Company’s Knowledge, any director, officer, agent, employee or other Person acting on behalf of the Company or any of its Subsidiaries has, in the course of its actions for, or on behalf of, the Company, used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expenses relating to political activity; made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; violated or is in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended or the Corruption of Foreign Public Officials Act (Canada); or made any unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful payment to any foreign or domestic government official or employee.

 

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aa. No Other Agreements . As of the Initial Closing Date, the Company has not, directly or indirectly, made any agreements with any Buyers relating to the terms or conditions of the transactions contemplated by the Transaction Documents except as set forth in the Transaction Documents.

 

bb. Outstanding Indebtedness; Liens . Payments of principal and other payments due under the Notes will, upon issuance in connection with the Closings, rank senior to all other Indebtedness (as defined in the Notes) of the Company or any of its Subsidiaries, and provided , however , that such payments will be no less than pari passu with Indebtedness permitted under clauses (a)(IV), (a)(V), (a)(VI) and (a)(VII) of Section 4(n)) and, by virtue of their secured position, to all trade account payables of the Company or any of its Subsidiaries. Schedule 3(bb) sets forth a summary of the outstanding trade accounts payable of the Company and its Subsidiaries as of the last day of the most recent calendar month preceding the date this representation is made (or as of a more recent specified date). Except as set forth on Schedule 3(bb) , (I) neither the Company nor any of its Subsidiaries has any outstanding Indebtedness, (II) there are no Liens on any of the assets of the Company and its Subsidiaries (including the assets being acquired in the Geostar Transaction) other than Permitted Liens, and (III) there are no financing statements in connection with Liens securing obligations of any amounts filed against the Company or any of its Subsidiaries or any of their respective assets (including the assets being acquired in the Geostar Transaction).

 

cc. Real Property . Schedule 3(cc) contains a complete and correct list of all the real property; facilities; equipment; and oil, gas and other mineral drilling, exploration and development rights, concessions, working interests and participation interests (including all Hydrocarbon Property (as defined in the Mortgages)) (provided, however, that Schedule 3(cc) lists categories, but not each item, of equipment) that (i) are (or immediately upon consummation of the Geostar Transaction will be) leased or otherwise owned or possessed by the Company or any of its Subsidiaries, (ii) in connection with which the Company or any of its Subsidiaries has (or immediately upon consummation of the Geostar Transaction will have) entered into an option agreement, participation agreement or acquisition and drilling agreement or (iii) the Company or any of its Subsidiaries has (or immediately upon consummation of the Geostar Transaction will have) agreed (or has (or immediately upon consummation of the Geostar Transaction will have) an option) to lease or otherwise acquire or may (or immediately upon consummation of the Geostar Transaction may) be obligated to lease or otherwise acquire in connection with the conduct of its business (collectively, including any of the foregoing acquired after the date of this Agreement, the “ Real Property ”), which list identifies all of the Real Property located in the Powder River Basin in Wyoming and Montana (the “ Powder River Basin Assets ”) and specifies which of the Company and its Subsidiaries leases owns or possesses each of the Real Property; provided that Schedule 3(cc) contains a complete and correct list of all Real Property that is not Producing Property as of the last day of the most recent calendar month preceding the date this representation is made. For purposes of this Section 3(cc), Schedule 3(cc) also contains a complete and correct list of all leases and other agreements with respect to which the Company or any of its Subsidiaries is (or immediately upon consummation of the Geostar Transaction will be) a party or otherwise bound or affected with respect to the Real Property (the “ Real Property Leases ”). The Company and its Subsidiaries have (or, with respect to Real Property being acquired in the Geostar Transaction (the “ Geostar Property ”), immediately upon consummation thereof will have) good and defensible title in fee simple to all Real Property owned (rather than leased) by them as set forth in Schedule 3(cc) (the “ Owned Real Property ”), in each case free and clear of all Liens, except Permitted Liens and as otherwise described in Schedule 3(cc) , and except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or a Property Material Adverse Effect. The lists of Real Property and Real Property Leases included in Schedule 3(cc) do not contain any material non-public information regarding the Company or any of its Subsidiaries. Except as set forth in Schedule 3(cc) , the Company or one of its Subsidiaries is (or, with respect to the Geostar Property, immediately upon consummation of the Geostar Transaction will be) the legal and equitable owner of a leasehold interest in all of the Real Property that is Producing Property, and except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or a Property Material Adverse Effect, possesses good and defensible title thereto, free and clear of all Liens (other than Permitted Liens) and other matters affecting title to such leasehold that could impair the ability of the Company and its Subsidiaries to realize the benefits of the rights provided to any of them under the Real Property Leases. Except with respect to the Owned Real Property, the Company or one of its Subsidiaries is (or, with respect to the Geostar Property, immediately upon consummation of the Geostar Transaction will be) the legal and equitable owner of a leasehold interest in all of the Real Property that is not Producing Property and except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or a Property Material Adverse Effect, possesses (or, with respect to the Geostar Property, immediately upon

 

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consummation of the Geostar Transaction will possess) good and defensible title thereto, free and clear of all Liens (other than Permitted Liens) and other matters affecting title to such leasehold that could impair the ability of the Company and its Subsidiaries to realize the benefits of the rights provided to any of them under the Real Property Leases. Except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or a Property Material Adverse Effect, (i) all of the Real Property Leases are valid and in full force and effect and are enforceable against all parties thereto, (ii) neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any other party thereto is in default in any material respect under any of the Real Property Leases and (iii) no event has occurred which with the giving of notice or the passage of time or both could constitute a default under, or otherwise give any party the right to terminate, any of the Real Property Leases, or could adversely affect the Company’s or any of its Subsidiaries’ interest in and title to the Real Property. Except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or a Property Material Adverse Effect, no Real Property Lease is subject to termination, modification or acceleration as a result of the transactions contemplated hereby. Except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or a Property Material Adverse Effect, all of the Real Property Leases will remain in full force and effect upon, and permit, the consummation of the transactions contemplated hereby (including the granting of leasehold mortgages). Except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or a Property Material Adverse Effect, all properties comprising the Real Property are permitted for their present uses under applicable zoning laws, are permitted conforming structures and comply with all applicable building codes, ordinances and other similar legal requirements. Except at set forth on Schedule 3(cc) , there are no pending or, to the Knowledge of the Company, threatened condemnation, eminent domain or similar proceedings, or litigation or other proceedings affecting the Real Property, or any portion or portions thereof, other than proceedings or litigation that, regardless of outcome, could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or a Property Material Adverse Effect. To the Knowledge of the Company, there are no pending or threatened requests, applications or proceedings to alter or restrict any zoning or other use restrictions applicable to the Real Property, except where such requests, applications or proceedings, or the results or consequences thereof, could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or a Property Material Adverse Effect. Except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or a Property Material Adverse Effect, there are no restrictions applicable to the Real Property that would interfere with the Company’s or any of its Subsidiary’s making an assignment or granting of a leasehold or other mortgage to the Buyers as contemplated by the Security Documents (as defined in the Notes), including any requirement under any Real Property Leases requiring the consent of, or notice to, any lessor of any such Real Property. Except as set forth in Schedule 3(cc) , all of the Real Property is located in the United States.

 

4. COVENANTS .

 

a. Reasonable Best Efforts . Each party shall use its reasonable best efforts to timely satisfy each of the conditions to be satisfied by it as provided in Sections 6 and 7 of this Agreement.

 

b. Form D; Blue Sky and Canadian Securities Laws Filings . The Company agrees to timely file a Form D with respect to the Securities as required under Regulation D and to provide a copy thereof to each Buyer promptly after such filing. The Company shall, on or before each of the Closing Dates, take such action as the Company shall reasonably determine is necessary in order to obtain an exemption for, or to qualify the Securities for, sale to the Buyers at each of the Closings and issuance to the Buyers on each Delivery Date pursuant to this Agreement under applicable securities or “Blue Sky” laws of the states of the United States and under Canadian Securities Laws, and shall provide evidence of any such action so taken to the Buyers on or prior to each of the Closing Dates. The Company shall make all filings and reports relating to the offer and sale of the Securities required under applicable securities or “Blue Sky” laws of the states of the United States following each of the Closing Dates. The Company shall make all filings and reports relating to the offer and sale of the securities required under Canadian Securities Laws in accordance with such laws.

 

c. Reporting Status . Until the latest of (i) the date that is one (1) year after the date as of which the Investors (as that term is defined in the Registration Rights Agreement) may sell all of the Shares issued hereunder without restriction pursuant to Rule 144(k) promulgated under the 1933 Act (or successor thereto) and Canadian Securities Laws, (ii) the date on which no Notes remain outstanding, (iii) the date that is the last day on

 

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which any Notes or Shares may be issued hereunder, the Company shall timely file all Securities Law Documents required to be filed pursuant to applicable laws in the United States and Canada, and the Company shall not terminate its status as a “reporting issuer” under Canadian Securities Laws or as an issuer required to file Securities Law Documents under applicable laws in the United States or Canada even if such laws would otherwise permit such termination; provided , however , that the Company shall not be obligated hereby to maintain such status at any time after a Change of Control, so long as no Notes or Shares are outstanding and no Notes or Shares may be issued hereunder.

 

d. Use of Proceeds . The Company will use the proceeds from the sale of the Notes and Shares first (i) to pay expenses and commissions related to the sale of the Notes and Shares, (ii) to fund the acquisition of various oil and gas reserves, working interests, leasehold interest and operating interests located in Wyoming and Texas from Geostar Corporation and its subsidiaries pursuant to the Geostar Agreements (as defined in the Notes) (the “ Geostar Transaction ”), and (iii) to pay the redemption price of all of the 15% Notes (as defined in the Notes) to be redeemed by the Company as required by Section 4(q), in each case as more specifically described and in the amounts indicated in Schedule 4(d) . The Company will use the remainder of such proceeds to fund its oil and gas acquisition, exploration and development activities (and not for the redemption or repayment of any Indebtedness) and for general working capital.

 

e. Financial Information . The Company agrees to send the following to each Investor (as that term is defined in the Registration Rights Agreement) during the Reporting Period: (i) within two (2) Business Days after the filing thereof, a copy of any Periodic Reports, any Current Reports and any registration statements (other than on Form S-8), amendments and supplements filed pursuant to the 1933 Act or the equivalent thereof under Canadian Securities Laws; (ii) on the same day as the release thereof, facsimile copies of all press releases issued by the Company or any of its Subsidiaries, except to the extent such release is available through Bloomberg Financial Markets (or any successor thereto) contemporaneously with such issuance; and (iii) copies of any notices and other information made available or given to the shareholders of the Company generally, contemporaneously with the making available or giving thereof to the shareholders.

 

f. Reservation of Shares . The Company shall take all action necessary to at all times have authorized, and reserved for the purpose of issuance, a sufficient number of Common Shares to enable the Company to satisfy its obligations under this Agreement, including its obligations to issue and deliver Shares pursuant to Section 1(e).

 

g. Listing . The Company shall promptly secure the listing or quotation of all of the Registrable Securities (as defined in the Registration Rights Agreement) upon each U.S. or Canadian securities exchange, automated quotation system and other trading market, if any, upon which shares of Common Shares are then listed (subject to official notice of issuance) and shall maintain, so long as any other shares of Common Shares shall be so listed or quoted, such listing or quotation of all Registrable Securities from time to time issuable under the terms of the Transaction Documents. The Company shall maintain the Common Shares’ listing on the Toronto Stock Exchange so long as the Toronto Stock Exchange is the Principal Market and thereafter on such other securities exchange, automated quotation system or trading market that constitutes the Principal Market. Neither the Company nor any of its Subsidiaries shall take any action that would be reasonably expected to result in the delisting or suspension of the Common Shares on the Principal Market. The Company shall pay all fees and expenses in connection with satisfying its obligations under this Section 4(g).

 

h. Expenses . Subject to Section 9(k) below, at each Closing, the Company shall pay each of the Buyers a non-accountable reimbursement amount equal to such Buyer’s Reimbursement Allocation Percentage, as set forth opposite such Buyer’s name on the Schedule of Buyers (which for all Buyers shall total 1.0%), multiplied by the original principal amount of Notes purchased by all the Buyers at such Closing to cover due diligence, negotiating and preparing the Transaction Documents and consummating the transactions contemplated thereby. The amount payable to each Buyer pursuant to the preceding sentence at each Closing shall be withheld as an off-set by such Buyer from its Purchase Price to be paid by it at such Closing. The Company hereby acknowledges and agrees that all expenses and fees of its counsel and of landmen and consultants engaged by the Company in connection with this Agreement and the transactions contemplated herein shall be borne solely by the Company. Each Buyer hereby acknowledges and agrees that all expenses and fees of its counsel and of landmen

 

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and consultants engaged by the Buyers in connection with this Agreement and the transactions contemplated herein shall be borne solely by such Buyers (except to the extent such expenses and fees may be covered by amounts payable to the Buyers pursuant to the first sentence of this Section 4(h)).

 

i. Disclosure of Transactions and Other Material Information . On or before 3:00 p.m. (New York City time) on the second (2nd) Business Day following the Initial Closing Date, the Company shall file a Current Report under Canadian Securities Laws describing the terms of the transactions contemplated by the Transaction Documents and the terms of the Geostar Transaction and, concurrently therewith, shall file as material documents under Canadian Securities Laws this Agreement (including the schedules hereto, other than the lists of Real Property and Real Property Leases included in Schedule 3(cc) ), the Form of Initial Note, the Form of Additional Note, the Form of Registration Rights Agreement, the Form of Security Agreement, the Form of Guaranty, the Form of Mortgage and the Geostar Agreements, each in the form required by the Canadian Securities Laws (such filings, collectively, the “ Announcing Current Report ”). Prior to or contemporaneously with the filing of the Announcing Current Report, the Company shall also Publicly Disclose the consummation of the transactions contemplated by the Transaction Documents and the Geostar Agreements through a press release that is widely disseminated in the United States and Canada. Unless required by law or a rule of the Principal Market, the Company shall not make any public announcement regarding the transactions contemplated hereby prior to the Initial Closing; provided , however , that each Buyer acknowledges and agrees that neither the Company’s issuance of a press release on April 19, 2005 announcing execution of a Letter of Intent relating to the Geostar Transaction nor the Company’s issuance of a press release on June 16, 2005 regarding the negotiation of this Agreement shall be deemed a breach of the foregoing covenant. No later than 8:00 a.m. (New York City time) on the first (1st) Business Day following each Additional Sale Election Notice Date and each Additional Closing Date, the Company shall Publicly Disclose the terms of the transactions proposed or consummated in connection with such Additional Sale Election Notice Date or Additional Closing Date. From and after the filing of the Announcing Current Report, no Buyer shall be in possession of any material nonpublic information received from the Company, any of its Subsidiaries or any of their respective officers, directors, employees or agents. The Company shall not, and shall cause each of its Subsidiaries and its and each of their respective officers, directors, employees and agents not to, provide any Buyer with any material nonpublic information regarding the Company or any of its Subsidiaries from and after the filing of the Announcing Current Report without the express prior written consent of such Buyer. In the event of a breach of the foregoing covenant by the Company, any of its Subsidiaries, or any of its or their respective officers, directors, employees and agents, in addition to any other remedy provided herein or in the Transaction Documents, a Buyer shall have the right to make, public disclosure in the form of a press release, public advertisement or otherwise, of such material nonpublic information without the prior approval by the Company, its Subsidiaries, or any of its or their respective officers, directors, employees or agents, provided that such Buyer gives the Company at least two (2) Business Days’ notice of its intention to make such public disclosure and provides such intended disclosure to the Company. No Buyer shall have any liability to the Company, its Subsidiaries, or any of its or their respective officers, directors, employees, shareholders or agents for any such disclosure. Except as expressly required by this Section 4(i), neither the Company nor any Buyer shall issue any press releases or make any other public statements or Public Disclosure with respect to the transactions contemplated hereby or disclosing the name of any Buyer; provided , however , that the Company shall be entitled, without the prior approval of any Buyer, to issue any press release or make any other public statements or public disclosure with respect to such transactions as is required by applicable law and regulations. The Company shall not, and shall not permit any of its Subsidiaries or any of the Company’s or its Subsidiaries’ officers, directors or representatives to, issue any press releases or make any other public statement or public disclosure with respect to the Company, its Subsidiaries, or their respective businesses or operations at any time during any Pricing Period or any of the two (2) consecutive Trading Days immediately prior to commencement of such Pricing Period, except as required by applicable law and regulations or as provided by this Section 4(i). Each Buyer shall be consulted by the Company in connection with any press release relating to any of the transactions contemplated by the Transaction Documents prior to its release and shall be provided with a copy thereof. Upon written request to the Company by any Buyer, the Company shall promptly provide such Buyer with a copy of the Company’s most recent Independent Reserve Report and/or most recent Reserve Update (each as defined in the Notes), subject to such Buyer’s execution of a confidentiality agreement reasonably acceptable to the Company with respect thereto; provided , however , that any such request shall constitute a waiver, with respect to any material non-public information regarding the Company and its Subsidiaries contained in such Independent Reserve Report and/or Reserve Update, of the restriction herein on the Company’s disclosure to such Buyer of material non-public information. Each Buyer agrees that it shall direct

 

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requests for information with respect to the Company or any of its Subsidiaries only to the chief executive officer, president or the chief financial officer of the Company.

 

j. Transactions With Affiliates . From the date of this Agreement until the first date following the Initial Closing Date on which no Notes are outstanding, no Notes or Shares may be issued pursuant to this Agreement, and Registration Statements (as defined in the Registration Rights Agreement) covering all outstanding Registrable Securities (as defined in the Registration Rights Agreement) have been effective for at least four (4) consecutive months, the Company shall not, and shall cause each of its Subsidiaries not to, enter into, amend, modify or supplement any transaction, contract, agreement, instrument, commitment, understanding or other arrangement with any of its or any Subsidiary’s officers, directors, persons who were officers or directors at any time during the previous two (2) years, shareholders, or affiliates of the Company or any of its Subsidiaries, or with any individual related by blood, marriage or adoption to any such individual or with any entity in which any such entity or individual owns a beneficial interest (each a “ Related Party ”), except for (A) customary employment arrangements and benefit programs, on reasonable terms that are approved by a majority of the disinterested, independent directors of the Company or a committee of the board of directors of the Company consisting entirely of disinterested, independent directors and (B) any transaction, contract or agreement that is negotiated on an arm’s length basis, is on terms and conditions that are no less favorable to the Company or such Subsidiary than those that would have been obtained on an arm’s length basis from a third party that is not a Related Party, and is approved by a majority of the disinterested, independent directors of the Company or a committee of the board of directors of the Company consisting entirely of disinterested, independent directors. For purposes hereof, any director who is also an officer of the Company or any Subsidiary shall not be a disinterested, independent director with respect to any such transaction, contract, agreement, instrument, commitment, understanding or other arrangement. “ Affiliate ” for purposes hereof means, with respect to any person or entity, another person or that, directly or indirectly, (i) has a 10% equity interest in that person or entity, (ii) has a common ownership with that Person, (iii) controls that Person, (iv) is controlled by that Person or (v) shares common control with that Person. “ Control ” or “ controls ” for purposes hereof means that a Person has the power, direct or indirect, to conduct or govern the policies of another Person.

 

k. Shareholder Approval . In the event that the Company solicits approval by the Company’s shareholders of the Company’s issuance of all or any of the Shares, as set forth in this Agreement, in accordance with the rules and regulations of the Principal Market (such approval being referred to herein as “ Shareholder Approval ”), the Company shall provide to each Buyer and a counsel of its choice, for their review (and at Buyer’s expense), at least three (3) Business Days prior to filing with the SEC or applicable securities regulatory authority under Canadian Securities Laws, the proxy statement or management information circular to be provided by the Company to its shareholders in connection with soliciting Shareholder Approval, which proxy statement or management information circular, as the case may be, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.

 

l. Corporate Existence; Real Property Leases .

 

(i) From the date of this Agreement until the first date following the Initial Closing Date on which no Notes are outstanding, no Notes or Shares may be issued pursuant to this Agreement and Registration Statements covering all outstanding Registrable Securities have been effective for at least four (4) consecutive months, the Company shall maintain its corporate existence and shall not sell all or substantially all of the Company’s assets (including, for the avoidance of any doubt, any of the assets of the Subsidiaries), except in the event of a merger or consolidation or sale or transfer of all or substantially all of the Company’s assets (including for the avoidance of doubt, all or substantially all of the assets of the Subsidiaries in the aggregate), where (A) the surviving or successor entity in such transaction assumes the Company’s obligations hereunder, and under the agreements and instruments entered into in connection herewith, and (B) immediately before and immediately after giving effect to such transaction, no Event of Default shall have occurred.

 

(ii) From the date of this Agreement until the first date following the Closing Date on which no Notes are outstanding, the Company shall, and shall cause each of its Subsidiaries to, refrain from violating, breaching or defaulting under in any respect, or taking or failing to take any action that (with or without

 

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notice or lapse of time or both) would constitute a violation or breach of, or default under, any term or provision of, or would result in any reversion of rights to a Person under, or amending or modifying, any Real Property Lease to which the Company or any of its Subsidiaries is a party, except to the extent such violation, breach or default, action or inaction, amendment or modification could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or a Property Material Adverse Effect.

 

m. Pledge of Securities . The Company acknowledges and agrees that the Securities may be pledged by an Investor in connection with a bona fide margin agreement or other loan secured by the Securities. The pledge of Securities shall not be deemed to be a transfer, sale or assignment of the Securities hereunder, and no Investor effecting any such pledge of Securities shall be required to provide the Company with any notice thereof or otherwise make any delivery to the Company pursuant to this Agreement or any other Transaction Document, including Section 2(f) of this Agreement; provided that an Investor and its pledgee shall be required to comply with the provisions of Section 2(f) in order to effect a sale, transfer or assignment of Securities to such pledgee. The Company hereby agrees to execute and deliver such documentation as a pledgee of the Securities may reasonably request in connection with a pledge of the Securities to such pledgee by an Investor.

 

n. Priority of Notes . From the date of this Agreement until the first date following the Initial Closing Date on which no Notes are outstanding, the Company shall not, and shall not permit any of its Subsidiaries to, (a) issue, incur, assume, maintain, suffer to exist or extend the term of any Indebtedness, except for (I) Indebtedness under the Notes, (II) Indebtedness (A) the holders of which agree in writing to be subordinate to the Notes on terms and conditions acceptable to the Buyers, including with regard to interest payments and repayment of principal, (B) which does not mature or otherwise require or permit redemption or repayment prior to or on the Maturity Date of any Notes then outstanding, and (C) which is not secured by any of the assets of the Company or any of its Subsidiaries (“ Permitted Subordinated Indebtedness ”), (III) Indebtedness solely between the Company and/or one of its U.S. or Canadian Subsidiaries on the one hand, and the Company and/or one of its U.S. or Canadian Subsidiaries on the other, provided that in each case all of the equity of any such Subsidiary (excluding directors’ qualifying shares to the extent that the issuance thereof is required by law) is directly or indirectly owned by the Company, such Subsidiary is controlled by the Company, such Subsidiary is a party to the Guaranty Agreement and the Security Agreement and the holders of the Notes have a valid, perfected first priority security interest in substantially all of the assets of such Subsidiary (other than assets located in Australia or as provided in Section 4(o)(ii) or 4(t)(vii)), (IV) surety bonds, bids, performance bonds, and similar obligations (exclusive of obligations for the payment of borrowed money) obtained by the Company and its Subsidiaries in the ordinary course of business for the purpose of satisfying federal, state, provincial and territorial and/or local legal requirements for owning and operating their oil and gas properties, (V) Capital Lease Obligations incurred in connection with acquiring equipment for the Company’s oil and gas exploration and production business in amounts not exceeding, individually, the fair market value of the equipment subject to such Capital Lease Obligations and in an amount not exceeding, in the aggregate, $2,500,000 at any one time, (VI) reimbursement obligations at any one time in respect of letters of credit or lines of credit issued by one or more financial institutions for the account of the Company or any of its Subsidiaries in connection with the Company’s establishment and maintenance of a Hedged (as defined in Section 4(r)) position with respect to, at any time, a maximum of 50% of the Company’s estimate of its oil and gas production for the succeeding 12 calendar months on a rolling 12 calendar-month basis, so long as the aggregate amount of all such letters of credit and lines of credit does not exceed $1,000,000 at any one time, (VII) reimbursement obligations in respect of letters of credit issued for the account of the Company or any of its Subsidiaries for the purpose of securing performance obligations of the Company or its Subsidiaries incurred in the ordinary course of business (and not issued in connection with the Company’s establishment and maintenance of a Hedged position) so long as the aggregate face amount of all such letters of credit does not exceed $2,500,000 at any one time; (VIII) Indebtedness under the 15% Notes (provided that the terms of such 15% Notes have not been amended or modified after their issuance dates); (IX) Indebtedness under the Convertible Debentures (as defined in the Notes) (provided that the terms of such Convertible Debentures have not been amended or modified after their issuance dates); and (X) Indebtedness under the Subordinated Notes (as defined in the Notes) (provided that the terms of such Subordinated Notes have not been amended or modified after their issuance dates); (b) issue, incur, assume, assure, maintain, suffer to exist or extend the term of any Indebtedness in a principal amount in excess of $5,000,000 where the proceeds of such Indebtedness are to be used to develop, or in connection with the development, of assets in which the holders of the Notes do not have a valid perfected, first priority security interest; (c) issue any capital stock of the Company or any Subsidiary redeemable prior to or on the Maturity Date of any

 

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Notes then outstanding; (d) directly or indirectly, create, assume or suffer to exist any Lien, other than a Permitted Lien, on any asset now owned or hereafter acquired by the Company or any of its Subsidiaries; provided , however , that with respect to Liens, other than Permitted Liens, on Real Property (and Collateral related thereto to the extent the Liens on such related Collateral are perfected only in real property records) that is owned or leased as of the date hereof, or is hereafter acquired, by the Company or any of its Subsidiaries and does not represent a material portion of the Collateral and which Liens existed or exist at the time the Company or any of its Subsidiaries acquired or acquires such Real Property (and related Collateral, if applicable) but of which neither the Company nor any of its Subsidiaries were or are, aware at the time of consummation of such acquisition, it shall not constitute a violation of this clause (d) if such Liens are terminated and released within ten (10) Business Days after the date on which the Company or any of its Subsidiaries first becomes aware of the existence thereof, so long as such Liens were or are not created, incurred or granted by the Company or any of its Subsidiaries; (e) except as required or expressly permitted by Section 4(d) or 4(q), redeem, or otherwise repay any principal of any Indebtedness (other than Indebtedness under the Notes and Indebtedness permitted by clauses (a)(III), (a)(IV), (a)(V), (a)(VI), (a)(VII), (a)(IX) and (a)(X) of this Section 4(n)), (f) on or at any time after an Event of Default, pay any interest on any Indebtedness, (g) redeem or otherwise repay, other than entirely in consideration for non-redeemable capital stock of the Company or Permitted Subordinated Indebtedness, any Indebtedness under the Subordinated Notes or the Convertible Debentures prior to the scheduled maturity thereof or at any time at which there is a Reserve Test Failure or Event of Default or would be a Reserve Test Failure or an Event of Default after giving effect to such repayment or redemption; provided , however , that the Company may redeem or otherwise repay in cash, solely out of proceeds from the Company’s issuance after the Initial Closing Date of Permitted Subordinated Indebtedness or nonredeemable capital stock of the Company, Indebtedness under the FTD Subordinated Note (as defined in the Notes) at any time (whether at or prior to maturity of the FTD Subordinated Note) at which there is no Reserve Test Failure or Event of Default and would not be a Reserve Test Failure or Event of Default after giving effect to such redemption or repayment; or (h) accelerate the maturity, or otherwise amend or modify any of the terms, of any Indebtedness such that would materially adversely affect any of the interests of the holders of the Notes. The provisions of this Section 4(n) are in furtherance of Section 8 of the Notes, and in no way limit the other restrictions on or obligations of the Company pursuant to Section 8 of the Notes or otherwise.

 

o. Restriction on Loans; Investments; Subsidiary Equity . From the date of this Agreement until the first date following the Initial Closing Date on which no Notes are outstanding, the Company shall not, and shall not permit any of its Subsidiaries to, (i) except for Permitted Investments (as defined herein) in which the holders of the Notes have a valid, perfected first priority security interest, make any loans to, or investments in, any other person or entity, including through lending money, deferring the purchase price of property or services (other than trade accounts receivable on terms of ninety (90) days or less), purchasing any note, bond (excluding surety and similar bonds obtained by the Company and its Subsidiaries in the ordinary course of their business to the extent permitted by clause (a)(IV) of Section 4(n)), debenture or similar instrument, entering into any letter of credit (except as permitted by clause (a)(VI) or (a)(VII) of Section 4(n)), guaranteeing (or taking any action that has the effect of guaranteeing) any obligations of any other person or entity, or acquiring any equity securities of, or other ownership interest in, or making any capital contribution to any other entity ( provided , however , that the Company and its U.S. and Canadian Subsidiaries may make loans to each other to the extent the incurrence of the Indebtedness represented by such loans would be permitted by Section 4(n)(a)(III) and not otherwise be prohibited by Section 4(n)), (ii) invest in, participate in, lease, purchase, obtain or otherwise acquire any real property, facilities, or oil, gas or other mineral drilling, exploration or development rights, concessions, working interests or participation interests (collectively, “ Interests ”), and shall not have done any of the foregoing since April 30, 2005, in which the Buyers are not provided with a valid, perfected first priority security interest in such Interests on or prior to the date that is the earliest of (A) the tenth Business Day of the subsequent calendar quarter, (B) ten (10) Business Days after the date on which the aggregate acquisition price of such investments, participations, leases, purchases or acquisitions exceeds $2,000,000 during a calendar quarter, and (C) concurrently with any investment, participation, lease, purchase or acquisition that has an acquisition price that individually exceeds $2,000,000, or (iii) issue, transfer or pledge any capital stock or equity interest in any Subsidiary to any Person other than the Company. “ Permitted Investments ” means any investment in (A) direct obligations of the United States or obligations guaranteed by the United States, in each case which mature and become payable within ninety (90) days of the investment by the Company or any Subsidiary, (B) commercial paper rated at least A-1 by Standard & Poor’s Ratings Service and P-1 by Moody’s Investors Services, Inc., (C) time deposits with, including certificates of deposit issued by, any office located in the United States of any bank or trust company which is organized under the laws of the United States or any State thereof and has capital, surplus and undivided profits aggregating at least

 

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$250,000,000 and which issues (or the parent of which issues) certificates of deposit or commercial paper with a rating described in clause (B) above, in each case which mature and become payable within ninety (90) days of the investment by the Company or any Subsidiary, (D) repurchase agreements with respect to securities described in clause (A) above entered into with an office of a bank or trust company meeting the criteria specified in clause (C) above, provided in each case that such investment matures and becomes payable within ninety (90) days of the investment by the Company or any Subsidiary, or (E) any money market or mutual fund which invests only in the foregoing types of investments and the liquidity of which is satisfactory to the Secured Party (as defined in the Security Agreement).

 

p. Restriction on Purchases or Payments . From the date of this Agreement until the first date following the Initial Closing Date on which no Notes are outstanding, the Company shall not, and shall not permit any of its Subsidiaries to, (i) declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of, or in substitution for any capital stock or establish or set any record date with respect to any of the foregoing; provided , however , that any Subsidiary may declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any of its capital stock that is held solely by the Company or by a U.S. or Canadian Subsidiary, provided that all of the equity of such Subsidiary (excluding directors’ qualifying shares to the extent that the issuance thereof is required by law), is directly or indirectly owned by the Company, such Subsidiary is controlled by the Company, such Subsidiary is a party to the Guaranty Agreement and the Security Agreement, and the holders of the Notes have a valid, perfected first priority security interest in substantially all of the assets of such Subsidiary (other than assets located in Australia or as provided in Section 4(o)(ii)), or (ii) purchase, redeem or otherwise acquire, directly or indirectly, any shares in the Company’s capital or any shares of the capital stock of any of its Subsidiaries, except repurchases of unvested shares at cost in connection with the termination of the employment relationship with any employee pursuant to share option or purchase agreements in effect on the date of this Agreement, or cashless exercise of options by employees under existing share options or purchase agreements, in each case as set forth on Schedule 3(c) .

 

q. Repayment of 15% Notes . On June 20, 2005 or June 21, 2005, the Company shall repay, or cause its Subsidiaries to repay, all Indebtedness outstanding under the 15% Notes and shall terminate, or cause its Subsidiaries to terminate, all of the 15% Notes.

 

r. Hedging Requirement . As of each date (a “ Determination Date ”) that is the end of a quarterly or annual period covered by a Periodic Report filed, or required to be filed, by the Company with the SEC or under Canadian Securities Laws, as the case may be, from the date of this Agreement until the first date following the Initial Closing Date on which no Notes are outstanding, no more than 50% of the Company’s estimate of its oil and gas production for the twelve (12)-month period commencing immediately after such Determination Date shall be protected from price fluctuations using derivatives, fixed price agreements and/or volumetric production payments (“ Hedged ”). Within two (2) Business Days after the filing of the Periodic Report covering the quarterly or annual period ended on such Determination Date, the Company shall deliver to each Buyer a certificate as to the Company’s compliance with the foregoing, which certificate shall not contain any material nonpublic information. The Company’s limitation on hedging against price fluctuations as set forth in this Section 4(r), the amount and nature of such Hedged position and a statement as to the Company’s compliance with this requirement shall be disclosed in the Periodic Report covering the quarterly or annual period ended on such Determination Date, as filed with the SEC or under Canadian Securities Laws, as the case may be.

 

s. Prohibition Against Variable Priced Securities . From the date of this Agreement until the first date following the Initial Closing Date on which no Notes are outstanding, no Notes or Shares may be issued pursuant to this Agreement and Registration Statements covering all outstanding Registrable Securities have been declared effective, the Company shall not in any manner issue or sell any Options (as defined below) or Convertible Securities (as defined below) that are convertible into or exchangeable or exercisable for Common Shares at a price that varies or may vary with the market price of the Common Shares, including by way of one or more resets to a fixed price or increases in the number of Common Shares issued or issuable, or at a price that upon the passage of time or the occurrence of certain events automatically is reduced or is adjusted or at the option of any Person may be reduced or adjusted, whether or not based on a formulation of the then current market price of the Common Shares.

 

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For purposes of this Agreement, “ Convertible Securities ” means any stock or securities (other than Options) directly or indirectly convertible into or exchangeable or exercisable for Common Shares and “ Options ” means any rights, warrants or options to subscribe for or purchase Common Shares or Convertible Securities. For the avoidance of doubt, this Section 4(s) shall not prohibit the issuance of Options or Convertible Securities that contain customary anti-dilution provisions.

 

t. Security Covenants .

 

(i) All Production Proceeds (as defined in the Mortgages) received by Company or any of its Subsidiaries shall initially be deposited in a Deposit Account (as defined in the Security Agreement) (the “ Initial Account ”). The Company shall, and shall cause its Subsidiaries to, provide that all Production Proceeds in the Initial Account not constituting (A) payment of oil or gas proceeds received on account of, or for the benefit of, any third-party owner of oil or gas interests, including royalty, rentals, overriding royalties and third party working interest payments, or (B) taxes, charges, costs and expenses that are required to be paid on account of such Production Proceeds on account of, or for the benefit of, any third-party owner of oil or gas interests (the items in clauses (A) and (B), the “ Third-Party Production Proceeds ”) be periodically (and in no event later than two (2) Business Days after their deposit into the Initial Account) swept pursuant to a standing sweep order into a Deposit Account of the Company or one of its Subsidiaries that does not contain Third-Party Production Proceeds or any other Production Proceeds that are subject to an ownership interest or other claim by any third-party and that is covered by an Account Control Agreement (the “ Segregated Account ”). Notwithstanding the foregoing, lease operating expenses, rents, overriding royalties and production, revenue, excise, gathering and other taxes required to be paid by the Company or any of its Subsidiaries on account of Production Proceeds deposited into the Initial Account on account of the Company or such Subsidiary shall not be required to be swept into the Segregated Account if such amounts are paid by the Company or such Subsidiary within two (2) Business Days after their deposit in the Initial Account.

 

(ii) The Company shall not, and shall not permit its Subsidiaries to, deposit funds other than Production Proceeds in the Initial Account, and the Company shall provide written notice to the holders of the Notes as to which Deposit Account is the Segregated Account.

 

(iii) The Company shall not change or move the Segregated Account unless an Account Control Agreement is in place with respect to the Deposit Account to which the Segregated Account is to be changed or moved.

 

(iv) The Company shall not, and shall not permit any of its Subsidiaries to, engage to any substantial extent in any business other than the business in which the Company and its Subsidiaries are engaged on the date of this Agreement (which, for purposes of this Section 4(t)(iv), shall be deemed to include coal mining and exploration activities in Australia) and business reasonably related thereto or in furtherance thereof.

 

(v) The Company shall, and shall cause its Subsidiaries to, preserve, renew and keep in full force and effect their respective material rights, privileges and franchises necessary or desirable in the normal conduct of their business, including receiving, collecting and enforcing their rights to receive payment of Production Proceeds, enforcing liens and security interests in respect thereof and protecting their interests therein.

 

(vi) Immediately upon creation of a Subsidiary or acquisition of an equity interest in any entity, the Company shall immediately pledge or cause to be pledged to the Buyers such equity interest (including any securities representing such interest) in accordance with the terms of the Pledge Agreement and shall cause such entity, upon its becoming a Subsidiary, to enter into the Guaranty and the Security Agreement and such other Security Documents as necessary to grant to the Buyers a valid, perfected first priority security interest in, and lien on, substantially all of the assets of such Subsidiary (other than assets located in Australia or as provided in Section 4(n)(d) or 4(o)(ii)), and comply with the terms thereof.

 

(vii) Within ten (10) Business Days after the Company or any of its Subsidiaries loans or invests any funds for the development of any Real Property located in the State of California or the State of

 

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Kansas or in Canada, in either case in excess of $250,000, the Company and its Subsidiaries shall grant to Buyers a valid, perfected first priority security interest in all of the Real Property located in the State of California or the State of Kansas or in Canada, as the case may be.

 

u. Sale of Collateral .

 

(i) Neither the Company nor any of its Subsidiaries shall sell, transfer, farm-out, assign or dispose of any Real Property (and any of the Collateral used in connection with the operation of such Real Property) (a “ Collateral Disposition ”), except (A) in connection with the sale of the Powder River Basin Assets in accordance with Section 4(u)(ii) or (B) in a good faith, arm’s length transaction with Persons who are not Related Parties (or, if the transaction is with Geostar Corporation, the transaction satisfies the requirements of clause (B) of Section 4(j)), provided that (1) the consideration for the Collateral Disposition does not consist, in whole or in part, of any Indebtedness of the Company or any of its Subsidiaries (or the forgiveness, cancellation or termination of any such Indebtedness), (2) the net cash proceeds of the Collateral Disposition are immediately deposited into the Segregated Account, or, if any of the consideration consists of Real Property or other assets, the Buyers are provided with a valid, perfected first priority security interest therein within two (2) Business Days of the Collateral Disposition, and (3) immediately before and immediately after giving effect to the Collateral Disposition, no Reserve Test Failure, Event of Default, or event which, with the passage of time or the giving of notice or both, would constitute an Event of Default shall exist (any such Collateral Disposition, a “ Permitted Collateral Disposition ”). Upon a Permitted Collateral Disposition, each of the Buyers shall, and shall cause its collateral agent (if applicable), at the Company’s sole expense, to promptly release any Lien encumbering that portion of the Real Property and any of the Collateral used in connection with the operation of such Real Property that is sold, transferred, farmed-out, assigned, or disposed of, provided that the Company and each applicable Subsidiary shall deliver to the Buyers or their collateral agent (if applicable) a written notice from the Company and each applicable Subsidiary, which notice shall contain no material non-public information, (I) requesting the release of the Liens encumbering the Real Property and Collateral sold, transferred, farmed-out, assigned or disposed of, (II) describing the proposed Real Property and Collateral sold, transferred, farmed-out, assigned or disposed of, (III) stating the purchase price or other property to be received in consideration for such sale or disposition of such Real Property and Collateral, (IV) if there is to be a substitution of Real Property or other assets for the Real Property (and any related collateral) that is subject to the Collateral Disposition, specifying the Real Property or other assets intended to be substituted therefor, (V) attaching an officer’s certificate certifying that the Permitted Collateral Disposition is in compliance with each of the requirements of clause (B) of the immediately preceding sentence and (VI) attaching the form of release requested by the Company or its applicable Subsidiary to be authorized or, if necessary, executed by the Buyers (or their collateral agent, as applicable).

 

(ii) The Company or any Subsidiary may, at any time during the period beginning on the Initial Closing Date and ending on the date that is one hundred and twenty (120) days after the Initial Closing Date, consummate the sale (subject to certain customary post-closing purchase price adjustments) of any or all of the Real Property comprising the Powder River Basin Assets in good faith, arm’s length transactions with Persons who are not Related Parties, provided that, at the time of such sale, the Buyers receive a valid, perfected first priority security interest in the proceeds of such sale. No later than the first (1st) Business Day following the one hundred twentieth (120 th ) day after the Initial Closing Date, the Company shall have provided the Buyers with a valid, perfected first priority security interest in any of the Real Property comprising the Powder River Basin Assets that is not sold in accordance with the immediately preceding sentence, along with an opinion of counsel, in form and substance reasonable acceptable to the Buyers of at least two-thirds (2/3) of the Initial Notes purchased at the Initial Closing addressing among other things, the laws of the State of Wyoming applicable to such security interest; provided , further , that if any of the Real Property comprising the Powder River Basin Assets that is not sold in accordance with the immediately preceding sentence and is located in the State of Montana (A) exceeds 4,000 acres, or (B) becomes Producing Property, the Company shall deliver to Buyers no later than two (2) Business Days after such Real Property exceeds 4,000 acres or becomes Producing Property, an opinion of counsel, reasonably acceptable to the Buyers of at least two-thirds (2/3) of the Initial Notes purchased at the Initial Closing, addressing, among other things, the laws of the State of Montana applicable to such security interest.

 

v. Issuance of Securities . During the period commencing on each Delivery Date and ending at 11:59 p.m. New York City time, on the date that a Registration Statement (as defined in the Registration Rights

 

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Agreement) covering all the Registrable Securities issued with respect to such Delivery Date has been declared effective by the SEC, the Company shall not issue, or issue any Options or Convertible Securities (or take any other action) as a result of which the Company would be deemed (pursuant to this Section 4(v)) to have issued, any Common Shares at a price per Common Share that is lower than 85% of the arithmetic average of the Weighted Average Price of the Common Shares on each of the five (5) consecutive Trading Days immediately preceding such Delivery Date (such price, as proportionately adjusted for share dividends, share splits, share combinations and similar transactions, the “ Pricing Period Price ”), except (i) pursuant to this Agreement, (ii) pursuant to an employee benefit plan that has been approved by the Board of Directors and shareholders of the Company under which Common Shares may be issued to consultants, employees, officers and/or directors of the Company, or (iii) upon exercise or conversion of Options or Convertible Securities outstanding on such Delivery Date. For purposes of determining the price per share of any issuance or deemed issuance of Common Shares by the Company (which, for the avoidance of doubt, the Company expressly agrees shall mean, for all purposes of this Section 4(v), including for purposes of determining whether the Company has issued or sold, or shall be deemed to have issued or sold, any Common Shares for a consideration per Common Share less than a price equal to the Pricing Period Price), the following shall be applicable:

 

(i) Issuance of Options . If the Company in any manner grants or sells any Options and the lowest price per share for which one Common Share is issuable upon the exercise of any such Option or upon conversion, exchange or exercise of any Convertible Securities issuable upon exercise of any such Option is less than the Pricing Period Price, then such Common Share shall be deemed to be outstanding and to have been issued and sold by the Company at the time of the granting or sale of such Option for such price per share. For purposes of this Section, the “lowest price per share for which one Common Share is issuable upon exercise of any such Option or upon conversion, exchange or exercise of any Convertible Security issuable upon exercise of any such Option” shall be equal to the sum of the lowest amounts of consideration (if any) received or receivable by the Company with respect to any one Common Share upon the granting or sale of such Option, upon exercise of such Option and upon conversion, exchange or exercise of any Convertible Security issuable upon exercise of such Option.

 

(ii) Issuance of Convertible Securities . If the Company in any manner issues or sells any Convertible Securities and the lowest price per share for which one Common Share is issuable upon the conversion, exchange or exercise thereof is less than the Pricing Period Price, then such Common Share shall be deemed to be outstanding and to have been issued and sold by the Company at the time of the issuance or sale of such Convertible Securities for such price per share. For the purposes of this Section, the “lowest price per share for which one Common Share is issuable upon such conversion, exchange or exercise” shall be equal to the sum of the lowest amounts of consideration (if any) received or receivable by the Company with respect to one Common Share upon the issuance or sale of any such Convertible Security and upon conversion, exchange or exercise of such Convertible Security.

 

(iii) Change in Option Price or Rate of Conversion . If the purchase, exchange or exercise price provided for in any Options, the additional consideration, if any, payable upon the issue, conversion, exchange or exercise of any Convertible Securities, or the rate at which any Options or Convertible Securities are convertible into or exchangeable or exercisable for Common Shares changes during the period commencing on a Delivery Date and ending on the date that a Registration Statement covering all Registrable Securities issued with respect to such Delivery Date has been declared effective, then such Option or Convertible Security and the Common Shares, deemed issuable upon exercise, conversion or exchange thereof shall be deemed to have been issued as of the date of such change.

 

(iv) Calculation of Consideration Received . In case any Options are issued in connection with the issue or sale of other securities of the Company, together comprising one integrated transaction or series of related transactions, (A) the Options will be deemed to have been issued for a consideration equal to the greater of $0.01 and the specific aggregate consideration, if any, allocated to such Options (in either case, the “ Option Consideration ”) and, for purposes of applying the provisions of this Section 4(v), the Option Consideration shall be allocated pro rata among all the shares of Common Shares issuable upon exercise of such Options to determine the consideration per each such share of Common Stock and (B) the other securities will be deemed to have been issued for an aggregate consideration equal to the aggregate consideration received by the

 

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Company for the Options and other securities (determined as provided below with respect to each share of Common Stock represented thereby), less the sum of (1) the Black-Scholes Value (as defined in Section 4(v)(v)) of such Options and (2) the Option Consideration. If any Common Shares, Options or Convertible Securities are issued or sold or deemed to have been issued or sold for cash, the consideration received therefor will be deemed to be the net amount received by the Company therefor. If any Common Shares, Options or Convertible Securities are issued or sold for a consideration other than cash, the amount of such consideration received by the Company will be the fair value of such consideration, except where such consideration consists of marketable securities, in which case the amount of consideration received by the Company will be the Weighted Average Price of such securities on the date of receipt of such securities. If any Common Shares, Options or Convertible Securities are issued to the owners of the non-surviving entity in connection with any merger in which the Company is the surviving entity, the amount of consideration therefor will be deemed to be the fair value of such portion of the net assets and business of the non-surviving entity as is attributable to such Common Shares, Options or Convertible Securities, as the case may be. The fair value of any consideration other than cash or securities will be determined jointly by the Company and the Buyers. If such parties are unable to reach agreement within ten (10) days after the occurrence of an event requiring valuation (the “ Valuation Event ”), the fair value of such consideration will be determined within five (5) Business Days after the tenth (10th) day following the Valuation Event by an independent, reputable appraiser jointly selected by the Company and the Buyers. The determination of such appraiser shall be final and binding upon all parties absent demonstrable error, and the fees and expenses of such appraiser shall be borne by the Company.

 

(v) Black-Scholes Value . The “ Black-Scholes Value ” of any Options shall mean the sum of the amounts resulting from applying the Black-Scholes pricing model to each such Option, which calculation is made with the following inputs: (i) the “option striking price” being equal to the lowest exercise price possible under the terms of such Option on the date of the issuance of any Options (the “ Valuation Date ”), (ii) the “interest rate” being equal to the Federal Reserve US H. 15 T Note Treasury Constant Maturity 1 Year rate on the Valuation Date (as reported by Bloomberg through its “ALLX H15T” function (accessed by typing “ALLX H15T” [GO] on a Bloomberg terminal, and inserting the date of the Valuation Date and then looking at the row entitled “Treas Const Mat 1 Year” under the column entitled “Previous Value”)), or if such rate is not available then such other similar rate as mutually agreed to by the Company and the Buyers, (iii) the “time until option expiration” being the time from the Valuation Date until the expiration date of such Option, (iv) the “current stock price” being equal to the Weighted Average Price of the Common Stock on the Valuation Date, (v) the “volatility” being the 100-day historical volatility of the Common Stock as of the Valuation Date (as reported by the Bloomberg “HVT” screen), and (vi) the “dividend rate” being equal to zero. Within three (3) Business Days after the Valuation Date, the Company shall deliver to the Buyers a written calculation of its determination of the Black-Scholes value of the Options. If the Buyers and the Company are unable to agree upon the calculation of the Black-Scholes Value of the Options within five (5) Business Days of the Valuation Date, then the Company shall submit via facsimile the disputed calculation to an investment banking firm (jointly selected by the Company and the Buyers) within seven (7) Business Days of the Valuation Date. The Company shall direct such investment banking firm to perform the calculations and notify the Company and the Buyers of the results no later than ten (10) Business Days after the Valuation Date. Such investment banking firm’s calculation of the Black-Scholes Value of the Options shall be deemed conclusive absent demonstrable error. The Company shall bear the fees and expenses of such investment banking firm for providing such calculation.

 

(vi) The restriction on the issuance or deemed issuance by the Company of Common Shares contemplated by the provisions of this Section 4(v) shall extend to events not expressly provided for by such provisions (including the granting of stock appreciation rights, phantom stock rights or other rights with equity features) but which have an equivalent purpose or effect.

 

w. Public Disclosure of Change of Control or Organic Change . From the date of this Agreement until the first date following the Initial Closing Date on which no Notes are outstanding and no Shares may be issued pursuant to this Agreement, in the event of a Change of Control or Organic Change, the Company shall no later than the Business Day that is 20 Business Days prior to the consummation of a Change of Control or an Organic Change, Publicly Disclose the principal terms of such agreement, including without limitation, the expected date on which the transaction shall be consummated (the first public announcement thereof, “ Change of Control Announcement ”).

 

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x. Buyer Transactions . Each Buyer agrees that, during any Initial Pricing Period or Additional Pricing Period preceding a Delivery Date on which such Buyer is to receive Shares, such Buyer shall not purchase or sell any Common Shares.

 

y. Dividends and Distributions . From the date of this Agreement until no Shares may be issued pursuant to this Agreement, the Company shall not establish, set or announce any record date with respect to any dividends or other distributions (whether in cash, stock or equity securities) in respect of any capital of the Company or any split, combination or reclassification of any capital, or the issuance of any other securities in respect of, in lieu of, or in substitution for, any capital of the Company (i) during any Pricing Period, or (ii) prior to any Pricing Period with respect to a dividend, distribution, split, combination, reclassification or issuance that is to become effective after such Pricing Period.

 

z. No Certification of LP and LLC Interests . The Company shall not, and shall not permit any other party to, (i) amend, modify or otherwise revise the provisions of the FSG Limited Partnership Agreement or the BB Limited Liability Company Operating Agreement to require that the partnership, membership and other economic interests therein, as the case may be, be (A) certificated or otherwise represented in tangible form or (B) treated as “securities” under the provisions of the Uniform Commercial Code of the State of Delaware, or (ii) cause or allow such partnership, membership or other economic interests, as the case may be, to be (A) certificated or otherwise represented in tangible form or (B) treated as “securities” under the provisions of the Uniform Commercial Code of the State of Delaware.

 

aa. Drilling Title Opinions . Prior to the Company’s or any of its Subsidiaries’ drilling of any well on any of the Real Property, the Company or such Subsidiary will obtain a customary drilling title opinion with respect to such Real Property. Upon written request to the Company by any Buyer, the Company shall promptly provide such Buyer with a copy of such drilling title opinion subject to such Buyer’s execution of a confidentiality agreement reasonably acceptable to the Company with respect thereto; provided , however , that any such request shall constitute a waiver, with respect to any material non-public information regarding the Company and its Subsidiaries contained in such drilling title opinion, of the restriction herein on the Company’s disclosure to such Buyer of material non-public information.

 

5. TRANSFER AGENT INSTRUCTIONS .

 

The Company shall issue irrevocable instructions to its transfer agent in the form attached hereto as Exhibit J (the “ Irrevocable Transfer Agent Instructions ”), and any subsequent transfer agent, to issue certificates registered in the name of each Buyer or its respective nominee(s), for the Shares in such amounts as specified from time to time by each Buyer to the Company. Prior to registration of the Shares under the 1933 Act, all such certificates shall bear the first restrictive legend specified in Section 2(g). The Company warrants that no instruction other than the Irrevocable Transfer Agent Instructions referred to in this Section 5 and stop transfer instructions to give effect to Section 2(f) (in the case of the Shares, prior to registration of the Shares under the 1933 Act) will be given by the Company to its transfer agent and that the Securities shall otherwise be freely transferable on the books and records of the Company as and to the extent provided in this Agreement and the Registration Rights Agreement. If a Buyer provides the Company with an opinion of counsel, in a generally acceptable form, to the effect that a public sale, assignment or transfer of the Securities may be made without registration under the 1933 Act and applicable state securities laws or Canadian Securities Laws or the Buyer provides the Company with reasonable assurance that the Securities can be sold pursuant to Rule 144 without any restriction as to the number of securities acquired as of a particular date that can then be immediately sold, the Company shall permit the transfer and promptly instruct its transfer agent to issue one or more certificates in such name and in such denominations as specified by such Buyer and without any restrictive legend. The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Buyers by vitiating the intent and purpose of the transactions contemplated hereby. Accordingly, the Company acknowledges that the remedy at law for a breach of its obligations under this Section 5 will be inadequate and agrees, in the event of a breach or threatened breach by the Company of the provisions of this Section 5, that the Buyers shall be entitled, in addition to all other available remedies, to an order and/or injunction restraining any breach and requiring immediate issuance and transfer, without the necessity of showing economic loss and without any bond or other security being required.

 

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6. CONDITIONS TO THE COMPANY’S OBLIGATION TO SELL .

 

a. Initial Closing Date . The obligation of the Company to sell the Initial Notes and the Initial Shares to each Buyer at the Initial Closing, is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for the Company’s sole benefit and may be waived by the Company at any time in its sole discretion by providing each Buyer with prior written notice thereof:

 

(i) Such Buyer shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company.

 

(ii) Such Buyer shall have delivered to the Company the Purchase Price (less the amount withheld pursuant to Section 4(h)) for the Initial Notes and the related Shares being purchased by such Buyer at the Initial Closing by wire transfer of immediately available U.S. funds pursuant to the wire instructions provided by the Company.

 

(iii) The representations and warranties of such Buyer herein shall be true and correct as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such date), and such Buyer shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by such Buyer at or prior to the Initial Closing Date.

 

b. Additional Closing Date . The obligation of the Company to issue and sell the Additional Notes and the Additional Shares to each Buyer at any Additional Closing is subject to the satisfaction, at or before the applicable Additional Closing Date, of each of the following conditions, provided that these conditions are for the Company’s sole benefit and may be waived by the Company at any time in its sole discretion by providing each Buyer with prior written notice thereof:

 

(i) Such Buyer shall have delivered to the Company the Purchase Price (less the amount withheld pursuant to Section 4(h)) for the Additional Notes and the Additional Shares being purchased by such Buyer at such Additional Closing by wire transfer of immediately available funds pursuant to the wire instructions provided by the Company.

 

(ii) The representations and warranties of such Buyer herein shall be true and correct as of the date when made and as of such Additional Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such date), and such Buyer shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by such Buyer at or prior to such Additional Closing Date.

 

7. CONDITIONS TO EACH BUYER’S OBLIGATION TO PURCHASE .

 

a. Initial Closing Date . The obligation of each Buyer hereunder to purchase the Initial Notes and the Initial Shares from the Company at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyer’s sole benefit and may be waived only by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:

 

(i) Each of the Company and its Subsidiaries shall have executed each of the Transaction Documents to which it is a party (other than any Additional Notes) and delivered the same to such Buyer.

 

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(ii) The representations and warranties of the Company herein shall be true and correct as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such date) and the Company and its Subsidiaries shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer, including an update as of a date as close to the Initial Closing Date as practicable of the representations contained in Sections 3(c) and 3(bb) above.

 

(iii) Such Buyer shall have received (A) the opinion of Burnet, Duckworth & Palmer LLP, dated as of the Initial Closing Date, which opinion will address, among other things, laws of the Provinces of Alberta and the federal laws of Canada, including securities laws and laws relating to withholding taxes, applicable to the transactions contemplated hereby, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit K attached hereto, (B) the opinion of Goodmans LLP, dated as of the Initial Closing Date, which opinion will address among other things, laws of the Province of Ontario, including securities laws, applicable to the transactions contemplated hereby, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit L attached hereto, (C) the opinion of Warner Norcross & Judd LLP, dated as of the Initial Closing Date, which opinion will address, among other things, laws of the State of Michigan applicable to the transactions contemplated hereby and the security interests provided pursuant to the Security Agreement, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit M attached hereto, and (D) the opinion of Vinson & Elkins L.L.P., dated as of the Initial Closing Date, which opinion will address, among other things, laws of the States of Delaware, New York and Texas applicable to the transactions contemplated hereby and the security interests provided pursuant to the Security Agreement, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit N attached hereto.

 

(iv) The Company shall have executed and delivered to such Buyer Note Certificates and Share Certificates (in such denominations as such Buyer shall request) for the Initial Notes and the Initial Shares to be issued to such Buyer at the Initial Closing and Subscription Receipts for the Initial Shares to be issued to such Buyer on each of the dates that are six (6) months, 12 months and 18 months after the Initial Closing Date.

 

(v) The Boards of Directors of the Company and its Subsidiaries shall have adopted resolutions consistent with Section 3(b) above and in a form reasonably acceptable to such Buyer (the “ Resolutions ”).

 

(vi) The Irrevocable Transfer Agent Instructions shall have been delivered to and acknowledged in writing by the Company’s transfer agent, and the Company shall have delivered a copy thereof to such Buyer.

 

(vii) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in such entity’s state or other jurisdiction of incorporation or organization issued by the Secretary of State (or other applicable authority) of such state or jurisdiction of incorporation or organization as of a date within ten (10) days of the Initial Closing Date.

 

(viii) The Company shall have delivered to such Buyer a secretary’s certificate, dated as of the Initial Closing Date, certifying as to (A) the Resolutions, (B) the Articles of the Corporation, certified as of a date within ten (10) days of the Initial Closing Date, by the Alberta Registrar of Corporations of the Province of Alberta, and (C) the Bylaws, each as in effect at the Initial Closing, (D) the organizational documents of each subsidiary, certified as of a date within ten (10) days of the Initial Closing Date by the applicable governmental authority of the applicable jurisdiction, and (E) the by-laws, limited partnership agreement or limited liability company agreement of each Subsidiary, as the case may be.

 

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(ix) The Company shall have made all filings under all applicable U.S. and Canadian federal, state, provincial, territorial and foreign securities laws necessary to consummate the issuance of the Securities pursuant to this Agreement in compliance with such laws.

 

(x) The Company shall have delivered to such Buyer a letter from the Company’s transfer agent certifying the number of shares of Common Shares outstanding as of a date within five (5) days of the Initial Closing Date.

 

(xi) The Company and its Subsidiaries shall have delivered and pledged to such Buyer any and all Instruments, Negotiable Documents, Chattel Paper (each of the foregoing terms, as defined in the Security Agreement) and certificated securities (accompanied by stock powers executed in blank), duly endorsed and/or accompanied by such instruments of assignment and transfer executed by the Company and its Subsidiaries, in such form and substance as such Buyer may request.

 

(xii) The Company and its Subsidiaries shall have delivered to such Buyer Mortgages with respect to all of the Real Property other than (A) the Real Property comprising the Powder River Basin Assets, (B) the Real Property located in Australia, Canada and the States of California and Kansas, (C) Real Property acquired by the Company in May 2005 for an aggregate acquisition price of less than $250,000 and (D) Real Property acquired since May 31, 2005, for an aggregate acquisition price, together with the aggregate acquisition price of the Real Property referred to in the immediately preceding clause (C), not in excess of $2,000,000.

 

(xiii) The Company and its Subsidiaries shall have given, executed, delivered, filed and/or recorded any financing statements, notices, instruments, documents, agreements and other papers that may be necessary or desirable (in the reasonable judgment of such Buyer) to create, preserve, perfect or validate the security interest granted to such Buyer pursuant to the Security Agreement and to enable such Buyer to exercise and enforce its rights with respect to such security interest.

 

(xiv) The Company and Geostar Corporation shall have consummated the Geostar Transaction and the Company shall have provided the Buyers with a valid, perfected first priority security interest in all of the assets acquired in such transaction (save and except the interests in the Powder River Basin in the States of Wyoming and Montana).

 

(xv) The Company and its Subsidiaries shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request.

 

b. Additional Closing Date . The obligation of each Buyer hereunder to purchase Additional Notes and the Additional Shares from the Company at any Additional Closing is subject to the satisfaction, at or before the Additional Closing Date, of each of the following conditions, provided that these conditions are for each Buyer’s sole benefit and may be waived only by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:

 

(i) The Initial Closing shall have occurred.

 

(ii) The Company shall have complied with the requirements of Section 1(b) (including the Additional Note Issuance Amount Limitations) and all of the Additional Sale Notice Election Conditions set forth in Section 1(d) shall have been satisfied as of such Additional Closing Date.

 

(iii) The representations and warranties of the Company herein (including any exceptions thereto contained in the schedules hereto) shall be true and correct as of the date when made and as of such Additional Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such date), provided that such representations shall be true and correct as of such Additional Closing Date giving effect to the updates required by the last sentence of this paragraph (iii) so long as there is nothing disclosed in any such updates that could, individually or in the aggregate,

 

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reasonably be expected to have a Material Adverse Effect as determined by such Buyer, in good faith, in its sole discretion, and the Company and its Subsidiaries shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to such Additional Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of such Additional Closing Date, to the foregoing effect (including with respect to the satisfaction of the conditions set forth in Section 7(b)(ii)) and as to such other matters as may be reasonably requested by such Buyer, including an update as of such Additional Closing Date of the representations and related schedule contained in Section 3(c) above and an update of Schedules 3(a), 3(f), 3(g), 3(h), 3(n), 3(q), 3(s), 3(w), 3(bb) and 3(cc) hereto.

 

(iv) Such Buyer shall have received (A) the opinion of Burnet, Duckworth & Palmer LLP (or such other law firm (or firms) as is reasonably acceptable to the Buyers being obligated to purchase at least two-thirds (2/3) of the aggregate principal amount of the Additional Notes on such Additional Closing Date), dated as of such Additional Closing Date, which opinion will address, among other things, laws of the Province of Alberta and the federal laws of Canada, including securities laws and laws relating to withholding taxes, applicable to the transactions contemplated hereby, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit K attached hereto, (B) the opinion of Goodmans LLP (or such other law firm (or firms) as is reasonably acceptable to the Buyers being obligated to purchase at least two-thirds (2/3) of the aggregate principal amount of the Additional Notes on the Additional Closing Date), dated as of such Additional Closing Date, which opinion will address, among other things, laws of the Province of Ontario, including securities laws, applicable to the transactions contemplated hereby, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit L attached hereto; (C) the opinion of Warner Norcross & Judd LLP (or such other law firm (or firms) as is reasonably acceptable to the Buyers being obligated to purchase at least two-thirds (2/3) of the aggregate principal amount of the Additional Notes on such Additional Closing Date), dated as of such Additional Closing Date, which opinion will address, among other things, laws of the State of Michigan applicable to the transactions contemplated hereby and the security interests provided pursuant to the Security Agreement, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit M hereto, (D) the opinion of Vinson & Elkins LLP (or such other law firm (or firms) as is reasonably acceptable to the Buyers being obligated to purchase at least two-thirds (2/3) of the aggregate principal amount of the Additional Notes on such Additional Closing Date), dated as of such Additional Closing Date, which opinion will address, among other things, laws of the States of Delaware, New York and Texas applicable to the transactions contemplated hereby and the security interests provided pursuant to the Security Agreement, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit N attached hereto, and (E) the opinion of such law firm (or firms) as is reasonably acceptable to the Buyers being obligated to purchase at least two-thirds (2/3) of the aggregate principal amount of Additional Notes on such Additional Closing Date, dated as of such Additional Closing Date, which opinion will address among other things, to the extent applicable, laws of the States of Montana and Wyoming (as well as any other jurisdictions in which the Company has properties or assets as of such Additional Closing Date) applicable to the transactions contemplated hereby and the security interests provided pursuant to the Security Agreement, in form, scope and substance reasonably satisfactory to such Buyer.

 

(v) The Company shall have executed and delivered to such Buyer the Note Certificates and Share Certificates (in such denominations as such Buyer shall request) for the Additional Notes and the Additional Shares to be issued to such Buyer at such Additional Closing and Subscription Receipts for the Additional Shares to be issued to such Buyer on each of the dates that are six (6) months, 12 months and 18 months after such Additional Closing Date.

 

(vi) The Boards of Directors of the Company and its Subsidiaries shall have adopted, and not rescinded or otherwise amended or modified resolutions consistent with Section 3(b) above and in a form reasonably acceptable to such Buyer with respect to the issuance at such Additional Closing Date of the Additional Notes and the related Shares being purchased by the Buyers at such Additional Closing Date (the “ Additional Closing Resolutions ”).

 

(vii) The Irrevocable Transfer Agent Instructions shall remain in effect as of such Additional Closing Date, and the Company shall have caused the Transfer Agent to deliver a letter to the Buyers to that effect.

 

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(viii) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in such entity’s state or other jurisdiction of incorporation or organization issued by the Secretary of State (or other applicable authority) of such state of incorporation or organization as of a date within ten (10) days of such Additional Closing Date.

 

(ix) The Company shall have delivered to such Buyer a secretary’s certificate, dated as of such Additional Closing Date, certifying as to (A) the Additional Closing Resolutions, (B) the Articles of the Corporation, certified as of a date within ten (10) days of such Additional Closing Date, by the Alberta Registrar of Corporations, (C) the Bylaws, each as in effect at such Additional Closing, (D) the organizational documents of each Subsidiary, certified as of a date within ten (10) days of such Additional Closing by the applicable governmental authority of the applicable jurisdiction, and (E) the by-laws, limited partnership agreement or limited liability company agreement of each Subsidiary, as the case may be.

 

(x) The Company shall have made all filings under all applicable U.S. and Canadian federal and state, provincial and territorial securities laws necessary to consummate the issuance of the Securities pursuant to this Agreement in compliance with such laws.

 

(xi) The Company shall have delivered to such Buyer a letter from the Company’s transfer agent certifying the number of shares of Common Shares outstanding as of a date within five (5) days of such Additional Closing Date.

 

(xii) The Company and its Subsidiaries shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request.

 

8. INDEMNIFICATION .

 

In consideration of each Buyer’s execution and delivery of the Transaction Documents and acquiring the Securities thereunder and in addition to all of the Company’s other obligations under the Transaction Documents, the Company shall defend, protect, indemnify and hold harmless each Buyer and each other holder of the Securities and all of their shareholders, partners, officers, directors, employees and direct or indirect investors and any of the foregoing Persons’ agents or other representatives (including those retained in connection with the transactions contemplated by this Agreement) (collectively, the “ Indemnitees ”) from and against any and all actions, causes of action, suits, claims, losses, costs, penalties, fees, liabilities and damages, and expenses in connection therewith (irrespective of whether any such Indemnitees is a party to the action for which indemnification hereunder is sought), and including reasonable attorneys’ fees and disbursements (the “ Indemnified Liabilities ”), incurred by any Indemnitees as a result of, or arising out of, or relating to (a) any misrepresentation or breach of any representation or warranty made by the Company in the Transaction Documents or any other certificate, instrument or document contemplated hereby or thereby, (b) any breach of any covenant, agreement or obligation of the Company contained in the Transaction Documents or any other certificate, instrument or document contemplated hereby or thereby, (c) any cause of action, suit or claim brought or made against such Indemnitees and arising out of or resulting from the execution, delivery, performance or enforcement of the Transaction Documents in accordance with the terms thereof or any other certificate, instrument or document contemplated hereby or thereby in accordance with the terms thereof (other than a cause of action, suit or claim brought or made against an Indemnitee by such Indemnitee’s owners, investors or affiliates), (d) any transaction financed or to be financed in whole or in part, directly or indirectly, with the proceeds of the issuance of the Securities or (e) the status of such Buyer or holder of the Securities as an investor in the Company. To the extent that the foregoing undertaking by the Company may be unenforceable for any reason, the Company shall make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities that is permissible under applicable law. Except as otherwise set forth herein, the mechanics and procedures with respect to the rights and obligations under this Section 8 shall be the same as those set forth in Sections 6(c) and (d) of the Registration Rights Agreement, including those procedures with respect to the settlement of claims and the Company’s rights to assume the defense of claims.

 

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9. GOVERNING LAW; MISCELLANEOUS .

 

a. Governing Law; Jurisdiction; Jury Trial . All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by the internal laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, borough of Manhattan, for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof to such party at the address for such notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. The Parties acknowledge that each of the Buyers has executed each of the Transaction Documents to be executed by it in the State of New York and will have made the payment of the Purchase Price from its bank account located in the State of New York. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.

 

b. Counterparts . This Agreement may be executed in two or more identical counterparts, all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to each other party; provided that a facsimile signature shall be considered due execution and shall be binding upon the signatory thereto with the same force and effect as if the signature were an original, not a facsimile signature.

 

c. Headings . The headings of this Agreement are for convenience of reference and shall not form part of, or affect the interpretation of, this Agreement.

 

d. Severability . If any provision of this Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability shall not affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability of any provision of this Agreement in any other jurisdiction.

 

e. Entire Agreement; Amendments . This Agreement supersedes all other prior oral or written agreements between each Buyer, the Company, their affiliates and persons acting on their behalf with respect to the matters discussed herein, and this Agreement and the instruments referenced herein contain the entire understanding of the parties with respect to the matters covered herein and therein and, except as specifically set forth herein or therein, neither the Company nor any Buyer makes any representation, warranty, covenant or undertaking with respect to such matters. No provision of this Agreement may be amended, modified or supplemented other than by an instrument in writing signed by the Company and the Buyers that purchased at least two-thirds (2/3) of the aggregate principal amount of the Initial Notes on the Initial Closing Date, or if prior to the Initial Closing, by the Buyers listed on the Schedule of Buyers as being obligated to purchase at least two-thirds (2/3) of the aggregate principal amount of the Initial Notes. Any such amendment shall bind all holders of the Notes. No such amendment shall be effective to the extent that it applies to less than all of the holders of the Notes then outstanding. No consideration shall be offered or paid to any Person to amend or consent to a waiver or modification of any provision of any of the Transaction Documents unless the same consideration also is offered to all of the parties to the Transaction Documents or holders of Notes, as the case may be.

 

f. Notices . Any notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement must be in writing and will be deemed to have been delivered: (i) upon receipt, when delivered personally; (ii) upon receipt, when sent by facsimile ( provided confirmation of

 

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transmission is mechanically or electronically generated and kept on file by the sending party); or (iii) one (1) Business Day after deposit with a nationally recognized overnight delivery service, in each case properly addressed to the party to receive the same. The addresses and facsimile numbers for such communications shall be:

 

If to the Company:

 

Gastar Exploration, Ltd.

1331 Lamar Street, Suite 1080

Houston, Texas 77010

Telephone:

   (713) 739-1800

Facsimile:

   (713) 739-0458

Attention:

   Chief Executive Officer

 

With a copy to:

 

Vinson & Elkins L.L.P.

First City Tower

1001 Fannin Street, Suite 2300

Houston, Texas 77002-6760

Telephone:

   (713) 758-2222

Facsimile:

   (713) 758-2346

Attention:

   T. Mark Kelly

 

If to the Transfer Agent:

 

CIBC Mellon Trust Company

200 Queen Quay East, Unit 6

Toronto, Ontario M5A 4K9

Telephone:

   (416) 643-5000

Facsimile:

   (416) 643-5570

Attention:

   VP, Client Services

 

If to a Buyer, to it at the address and facsimile number set forth on the Schedule of Buyers , with copies to such Buyer’s representatives as set forth on the Schedule of Buyers , or, in the case of a Buyer or any other party named above, at such other address and/or facsimile number and/or to the attention of such other person as the recipient party has specified by written notice given to each other party five (5) days prior to the effectiveness of such change. Written confirmation of receipt (A) given by the recipient of such notice, consent, waiver or other communication, (B) mechanically or electronically generated by the sender’s facsimile machine containing the time, date, recipient facsimile number and an image of the first page of such transmission or (C) provided by a nationally recognized overnight delivery service shall be rebuttable evidence of personal service, receipt by facsimile or deposit with a nationally recognized overnight delivery service in accordance with clause (i), (ii) or (iii) above, respectively.

 

g. Successors and Assigns . This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns, including any purchasers of the Notes. The Company shall not assign this Agreement or any rights or obligations hereunder without the prior written consent of the holders of at least two-thirds (2/3) of the aggregate principal of the Notes then outstanding, including by merger or consolidation, except pursuant to a Change of Control (as defined in Section 5(b) of the Notes) with respect to which the Company is in compliance with Section 4(l) of this Agreement and Section 5 of the Notes. A Buyer may assign some or all of its rights hereunder without the consent of the Company; provided , however , that any such assignment shall not release such Buyer from its obligations hereunder unless such obligations are assumed by such assignee (as evidenced in writing) and the Company has consented to such assignment and assumption, which consent shall not be unreasonably withheld. Notwithstanding anything to the contrary contained in the Transaction Documents, the Buyers shall be entitled to pledge the Securities in connection with a bona fide margin account or other loan or financing arrangement secured by the Securities.

 

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h. No Third Party Beneficiaries . This Agreement is intended for the benefit of the parties hereto and their respective permitted successors and assigns and, to the extent provided in Section 8 hereof, each Indemnitee, and is not for the benefit of, nor may any provision hereof be enforced by, any other person.

 

i. Survival . Unless this Agreement is terminated under Section 9(k)(i), the representations and warranties of the Company and the Buyers contained in Sections 2 and 3, the agreements and covenants set forth in Sections 4, 5 and 9, and the indemnification provisions set forth in Section 8, shall survive the Closings. Each Buyer shall be responsible only for its own representations, warranties, agreements and covenants hereunder. The Company acknowledges and agrees that the provisions of Section 21 of each of the Notes shall survive the redemption, repayment or surrender of such Note.

 

j. Further Assurances . Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as the other party may reasonably request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.

 

k. Termination .

 

(i) In the event that the Initial Closing shall not have occurred with respect to a Buyer on or before the third (3rd) Business Day following the date of this Agreement due to the Company’s or such Buyer’s failure to satisfy the conditions set forth in Sections 6(a) and 7(a) above (and the nonbreaching party’s failure to waive such unsatisfied condition(s)), the nonbreaching party shall have the option to terminate this Agreement with respect to such breaching party at the close of business on such date without liability of any party to any other party; provided , however , that if this Agreement is terminated pursuant to this Section 9(k)(i), the Company shall be obligated to pay each of the Buyers (so long as such Buyer is not a breaching party) its expense and commitment allowance as set forth in Section 4(h) as if such Buyer had purchased the principal amount of Notes set forth opposite its name on the Schedule of Buyers .

 

(ii) In the event that an Additional Closing shall not have occurred with respect to a Buyer on or before the eighth (8th) Business Day following an Additional Sale Election Notice Date due to the Company’s or such Buyer’s failure to satisfy the conditions set forth in Sections 6(b) and 7(b) above (and the nonbreaching party’s failure to waive such unsatisfied condition(s)), the nonbreaching party shall have the option to terminate the obligations with respect to such Additional Closing at the close of business on such date without liability of any party to any other party with respect thereto (and without affecting any other rights or obligations under this Agreement); provided , however , that if a party’s obligations with respect to such Additional Closing are terminated pursuant to this Section 9(k)(ii), the Company shall be obligated to reimburse the nonbreaching Buyers and their affiliates for their expenses (including attorneys’ fees and expenses) associated with such Additional Closing.

 

l. Financial Advisor . The Company acknowledges that it has engaged Pritchard Capital Partners, L.L.C. as its financial advisor in connection with the sale of the Notes, which financial advisor may have formally engaged other agents on their behalf. The Company shall be responsible for the payment of any fees of such financial advisor and agents relating to or arising out of the transactions contemplated hereby. The Company shall pay, and hold each Buyer harmless against, any liability, loss or expense (including attorneys’ fees and out-of-pocket expenses) arising in connection with any such claim. The Company represents and warrants to each of the Buyers that it has not retained or otherwise engaged any financial advisors (other than Pritchard Capital Partners, L.L.C.), brokers or placement agents in connection with the transactions contemplated hereby.

 

m. No Strict Construction . The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rules of strict construction will be applied against any party.

 

n. Remedies . Each Buyer and each holder of the Securities shall have all rights and remedies set forth in the Transaction Documents and all rights and remedies that such holders have been granted at

 

40


any time under any other agreement or contract and all of the rights that such holders have under any law. Any person having any rights under any provision of this Agreement shall be entitled to enforce such rights specifically (without posting a bond or other security or proving actual damages), to recover damages by reason of any breach of any provision of this Agreement and to exercise all other rights granted by law.

 

o. Payment Set Aside . To the extent that the Company or any of its Subsidiaries makes a payment or payments to the Buyers hereunder or pursuant to the Registration Rights Agreement, the Notes or the Guaranty or the Buyers enforce or exercise their rights hereunder or thereunder, and such payment or payments or the proceeds of such enforcement or exercise or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from, disgorged by or are required to be refunded, repaid or otherwise restored to the Company or any of its Subsidiaries, by a trustee, receiver or any other person under any law (including any bankruptcy law, state, provincial or territorial or U.S. or Canadian federal law, common law or equitable cause of action), then to the extent of any such restoration the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such enforcement or setoff had not occurred.

 

p. Independent Nature of Buyers . The obligations of each Buyer hereunder and under each of the other Transaction Documents to which such Buyer is a party are several and not joint with the obligations of any other Buyer, and no Buyer shall be responsible in any way for the performance of the obligations of any other Buyer hereunder or under any of the other Transaction Documents. Each Buyer shall be responsible only for its own representations, warranties, agreements and covenants hereunder and under each of the Transaction Documents to which it is a party. The decision of each Buyer to purchase the Securities pursuant to this Agreement has been made by such Buyer independently of any other Buyer and independently of any information, materials, statements or opinions as to the business, affairs, operations, assets, properties, liabilities, results of operations, condition (financial or otherwise) or prospects of the Company or any of its Subsidiaries which may have been made or given by any other Buyer or by any agent or employee of any other Buyer, and no Buyer or any of its agents or employees shall have any liability to any other Buyer (or any other Person) relating to or arising from any such information, materials, statements or opinions. Nothing contained herein or in any of the other Transaction Documents, and no action taken by any Buyer pursuant hereto or thereto, shall be deemed to constitute the Buyers as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Buyers are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated hereby or thereby. Each Buyer shall be entitled to independently protect and enforce its rights, including the rights arising out of this Agreement, the Notes and the other Transaction Documents, and it shall not be necessary for any other Buyer to be joined as an additional party in any proceeding for such purpose.

 

q. Interpretative Matters . Unless the context otherwise requires, (a) all references to Sections, Schedules or Exhibits are to Sections, Schedules or Exhibits contained in or attached to this Agreement, (b) words in the singular or plural include the singular and plural and pronouns stated in either the masculine, the feminine or neuter gender shall include the masculine, feminine and neuter, and (c) the use of the word “including” in this Agreement shall be by way of example rather than limitation.

 

* * * * * *

 

41


IN WITNESS WHEREOF, the Buyers and the Company have caused this Securities Purchase Agreement to be duly executed as of the date first written above.

 

COMPANY:

     

BUYERS:

GASTAR EXPLORATION LTD.       HFTP INVESTMENT L.L.C.
       

By: Promethean Asset Management L.L.C.

Its: Investment Manager

By:                

Name:

 

J. Russell Porter

           

Title:

 

President and Chief Executive Officer

           
            By:    
           

Name:

   
           

Title:

   
        GAIA OFFSHORE MASTER FUND, LTD.
       

By: Promethean Asset Management L.L.C.

Its: Investment Manager

            By:    
           

Name:

   
           

Title:

   
        LEONARDO, L.P.
       

By: Leonardo Capital Management, Inc.

Its: General Partner

       

By: Angelo, Gordon & Co., L.P.

Its: Director

            By:    
           

Name:

   
           

Title:

   
        WAYLAND RECOVERY FUND, LLC
       

By: Wayzata Investment Partners LLC

Its: Manager

            By:    
           

Name:

   
           

Title:

   


        WAYZATA RECOVERY FUND, LLC
       

By: Wayzata Investment Partners LLC

Its: Manager

            By:    
           

Name:

   
           

Title:

   
        CYRUS OPPORTUNITIES FUND, L.P.
       

By:    Cyrus Capital Partners, L.P.,
as Investment Manager

       

By:    Cyrus Capital Partners GP, LLC,
General Partner

            By:    
           

Name:

   
           

Title:

   
        CYRUS OPPORTUNITIES FUND II, L.P.
       

By:    Cyrus Capital Partners, L.P.,
as Investment Manager

       

By:    Cyrus Capital Partners, GP, LLC,
General Partner

            By:    
           

Name:

   
           

Title:

   


SCHEDULE OF BUYERS

 

Buyer’s Name


  

Buyer Address
and Facsimile Number


   Principal
Amount of
Initial Notes


   Allocation
Percentage


    Reimbursement
Allocation
Percentage


   

Investor’s Legal
Representative’s Address
and Facsimile Number


HFTP Investment L.L.C.   

c/o Promethean Asset Management L.L.C.

750 Lexington Avenue 22 nd Floor

New York, New York 10022

Attention: Robert J. Brantman

Telephone: (212) 702-5200

Facsimile: (212) 758-9620

Residence: Delaware

   $ 17,000,000    27.0 %   72.2 %  

Katten Muchin Rosenman LLP

525 W. Monroe Street

Chicago, Illinois 60661-3693

Attention: Mark D. Wood, Esq.

Telephone: (312) 902-5200

Facsimile: (312) 902-1061

Gaia Offshore Master Fund, Ltd.   

c/o Promethean Asset Management L.L.C.

750 Lexington Avenue, 22 nd Floor

New York, New York 10022

Attention: Robert J. Brantman

Telephone: (212) 702-5200

Facsimile: (212) 758-9620

Residence: Cayman Islands

   $ 8,000,000    12.7 %   4.8 %  

Katten Muchin Rosenman LLP

525 W. Monroe Street

Chicago, Illinois 60661-3693

Attention: Mark D. Wood, Esq.

Telephone: (312) 902-5200

Facsimile: (312) 902-1061

Leonardo, L.P.   

c/o Angelo Gordon & Co.

245 Park Avenue

New York, New York 10167

Attention: Gary I. Wolf

Telephone: (212) 692-2058

Facsimile: (212) 867-6449

Residence: Cayman Islands

   $ 25,000,000    39.7 %   15.1 %  

Park, Weiss, Rifkind, Wharton & Garrison LLP

1285 Avenue of the Americas

New York, New York 10019-6064

Attention: Douglas A. Cifu, Esq.

Telephone: (212) 373-3000

Facsimile: (212) 759-3990


Buyer’s Name


  

Buyer Address
and Facsimile Number


   Principal
Amount of
Initial Notes


   Allocation
Percentage


    Reimbursement
Allocation
Percentage


   

Investor’s Legal
Representative’s Address and
Facsimile Number


Wayland Recovery Fund, LLC   

701 E. Lake Street Suite 300

Wayzata, Minnesota 55391

Attention: Blake Carlson

Telephone: (952) 345-0708

Facsimile: (952) 345-8901

Residence: Delaware

   $ 5,000,000    7.93 %   3.0 %  

701 E. Lake Street Suite 300

Wayzata, Minnesota 55391

Attention: Susan Peterson

Telephone: (952) 345-0716

Facsimile: (952) 345-8901

Wayzata Recovery Fund, LLC   

701 E. Lake Street Suite 300

Wayzata, Minnesota 55391

Attention: Blake Carlson

Telephone: (952) 345-0708

Facsimile: (952) 345-8901

Residence: Delaware

   $ 3,000,000    4.77 %   1.8 %  

701 E. Lake Street Suite 300

Wayzata, Minnesota 55391

Attention: Susan Peterson

Telephone: (952) 345-0716

Facsimile: (952) 345-8901

Cyrus Opportunities Fund, L.P.   

c/o Cyrus Capital Partners, L.P.

390 Park Avenue 21 st Floor

New York, New York 10022

Attention: Robert Swenson
Jenna Hwang
Stephen D. Quinn

Telephone: (212) 380-5904

Facsimile: (212) 380-5801

Residence: Delaware

   $ 950,000    1.5 %   0.6 %  

c/o Cyrus Capital Partners, L.P.

390 Park Avenue 21st Floor

New York, New York 10022

Attention: Robert Nisi, Esq.

Telephone: (212) 380-5904

Facsimile: (212) 380-5801

Cyrus Opportunities Fund II, L.P.   

c/o Cyrus Capital Partners, L.P.

390 Park Avenue

21 st Floor

New York, New York 10022

Attention: Robert Swenson
Jenna Hwang
Stephen D. Quinn

Telephone: (212) 380-5904

Facsimile: (212) 380-5801

Residence: Delaware

   $ 4,050,000    6.4 %   2.5 %  

c/o Cyrus Capital Partners, L.P.

390 Park Avenue

21st Floor

New York, New York 10022

Attention: Robert Nisi, Esq.

Telephone: (212) 380-5904

Facsimile: (212) 380-5801


SCHEDULES

 

Schedule 3(a)

   Subsidiaries

Schedule 3(c)

   Capitalization

Schedule 3(f)

   Securities Law Documents

Schedule 3(g)

   Absence of Certain Changes

Schedule 3(h)

   Litigation

Schedule 3(j)

   Undisclosed Liabilities

Schedule 3(n)

   Employee Relations

Schedule 3(q)

   Personal Property

Schedule 3(s)

   Regulatory Permits

Schedule 3(w)

   Transactions with Affiliates

Schedule 3(bb)

   Outstanding Indebtedness; Liens

Schedule 3(cc)

   Real Property, Leases

Schedule 4(d)

   Use of Proceeds

 

EXHIBITS

 

Exhibit A

   Form of Initial Note

Exhibit B

   Form of Additional Note

Exhibit C

   Form of Registration Rights Agreement

Exhibit D

   Form of Security Agreement

Exhibit E

   Forms of Account Control Agreement

Exhibit F

   Form of Guaranty

Exhibit G

   Form of Pledge Agreement

Exhibit H

   Form of Mortgage

Exhibit I

   Form of Subscription Receipt

Exhibit J

   Form of Irrevocable Transfer Agent Instructions

Exhibit K

   Form of Company Canadian (Alberta) Counsel Opinion

Exhibit L

   Form of Company Canadian (Ontario) Counsel Opinion

Exhibit M

   Form of Company Michigan Counsel Opinion

Exhibit N

   Form of Company Delaware, New York and Texas Counsel Opinion

 

60385342

EXHIBIT 4.8

 

FORM OF NOTE

 

THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS OR (B) AN OPINION OF COUNSEL, IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS OR (II) UNLESS SOLD PURSUANT TO RULE 144 UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES. ANY TRANSFEREE OF THIS NOTE SHOULD CAREFULLY REVIEW THE TERMS OF THIS NOTE, INCLUDING SECTION 3(c) HEREOF. THE PRINCIPAL AMOUNT REPRESENTED BY THIS NOTE MAY BE LESS THAN THE AMOUNTS SET FORTH ON THE FACE HEREOF PURSUANT TO SECTION 3(c) HEREOF.

 

UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE SHALL NOT TRADE THE SECURITIES IN CANADA BEFORE [              ], 200[      ].

 

SENIOR SECURED NOTE

 

                         , 200     

   $                     

 

FOR VALUE RECEIVED, GASTAR EXPLORATION, LTD. , an Alberta corporation (the “ Company ”), hereby promises to pay to the order of                              or registered assigns (the “ Holder ”) the principal amount of                          United States Dollars ($                      ) when due, whether upon maturity, acceleration, redemption or otherwise, and to pay interest (“ Interest ”) on the unpaid principal balance hereof on each Interest Payment Date (as defined in Section 2(u)) and upon maturity, acceleration or redemption pursuant to the terms hereof, at the Applicable Interest Rate (as defined in Section 2(g)). Interest on this Note payable on each Interest Payment Date and upon maturity, or earlier upon acceleration or redemption pursuant to the terms hereof, shall accrue from the Issuance Date and shall be computed on the basis of a 365-day year and actual days elapsed.

 

(1) Payments of Principal . All payments under this Note shall be made in lawful money of the United States of America by wire transfer of immediately available funds to such account as the Holder may from time to time designate by written notice in accordance with the provisions of this Note. Whenever any amount expressed to be due by the terms of this Note is due on any day that is not a Business Day (as defined in Section 2(h)), the same shall instead be due on the next succeeding day that is a Business Day. Each capitalized term used herein, and not otherwise defined, shall have the meaning ascribed thereto in the Securities Purchase Agreement, dated as of June 16, 2005, pursuant to which this Note and the Other Notes (as defined in Section 2(y)) were originally issued (as such agreement may be amended from time to time as provided in such agreement, the “ Securities Purchase Agreement ”). This Note and all Other Notes issued by the Company pursuant to the Securities Purchase Agreement on the Initial Closing Date and any Additional Closing Dates and all notes issued in exchange therefor or replacement thereof are collectively referred to in this Note as the “ Notes .” This Note and each of the Other Notes originally issued by the Company on the same Closing Date shall be deemed to be of the same “ Series .”


(2) Certain Defined Terms . For purposes of this Note, the following terms shall have the following meanings:

 

(a) “ 3-Month LIBOR Rate ” means the London Interbank Offered Rate of LIBOR with respect to a three-month period for deposits of United States Dollars as reported by Bloomberg Financial Markets (or any successor thereto, “ Bloomberg ”) at approximately 10:00 a.m. (New York time) through its “LIBOR Rates” function (accessed by typing “LR” [GO] on a Bloomberg terminal, and looking at the row entitled “3 MONTH” and under the column entitled “DOLLAR LIBOR”) (or such other page as may replace that page on that service, or such other service as may be selected jointly by the Company and the Holders of the Notes). If such rate appears on the Bloomberg LIBOR Rates page on any date of determination of the 3-Month LIBOR Rate (a “ LIBOR Determination Date ”), the 3-Month LIBOR Rate for such date of determination will be such rate. If on any LIBOR Determination Date such rate does not appear on the Bloomberg LIBOR Rates page, the Company and the Holders of the Notes will jointly request each of four major reference banks in the London interbank market, as selected jointly by the Company and the Holders of the Notes, to provide the Company with its offered quotation for United States dollar deposits for the upcoming three-month period, to prime banks in the London interbank market at approximately 4:00 p.m., London time on any such LIBOR Determination Date and in a principal amount that is representative for a single transaction in United States Dollars in such market at such time. If at least two reference banks provide the Company with offered quotations, 3-Month LIBOR Rate on such LIBOR Determination Date will be the arithmetic mean of all such quotations. If on such LIBOR Determination Date fewer than two of the reference banks provide the Company with offered quotations, 3-Month LIBOR Rate on such LIBOR Determination Date will be the arithmetic mean of the offered per annum rates that three major banks in New York City selected jointly by the Company and the Holders of the Notes quote at approximately 11:00 A.M. in New York City on such LIBOR Determination Date for three-month United States dollar loans to leading European banks, in a principal amount that is representative for a single transaction in United States dollars in such market at such time. If these New York City quotes are not available, then the 3-Month LIBOR Rate determined on such LIBOR Determination Date will continue to be 3-Month LIBOR Rate as then currently in effect on such LIBOR Determination Date.

 

(b) “ 15% Notes ” means the Company’s 15% Senior Unsecured Notes in the aggregate principal amount of $15,000,000 and $10,000,000 issued to Ingalls & Snyder on June 24, 2004 and October 8, 2004, respectively, in the forms provided to each of the Buyers prior to the date of the Securities Purchase Agreement.

 

(c) “ 1933 Act ” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

 

(d) “ 1934 Act ” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

 

(e) “ Aggregate Notes Balance ” means, as of the date of any determination, the aggregate outstanding principal amount of all the Notes, together with all accrued but unpaid interest thereon.

 

(f) “ Allocation Percentage ” means, with respect to each holder of Note as of the date of any determination, a fraction of which the numerator is the aggregate principal amount of the Notes originally purchased by such holder on the Initial Closing Date and any Additional Closing Dates occurring on or prior to such date of determination, and of which the denominator is the aggregate principal amount of the Notes purchased by all holders on the Initial Closing Date and such Additional Closing Dates.

 

(g) “ Applicable Interest Rate ” initially shall mean the per annum interest rate equal to the sum of (a) the 3-Month LIBOR Rate in effect on the Issuance Date and (b) six percent (6.0%); provided, however, that on the first Business Day of each calendar quarter commencing after the Issuance Date (each, an “ Interest Reset Date ”), such rate shall be adjusted to the per annum interest rate equal to the sum of (a) the 3-Month LIBOR Rate in effect on such date and (b) six percent (6.0%). Each Applicable Interest Rate will be applicable as of and after the Interest Reset Date to which it relates to, but not including, the next succeeding Interest Reset Date.

 

(h) “ Business Day ” means any day other than Saturday, Sunday or other day on which commercial banks in the city of New York are authorized or required by law to remain closed.

 

2


(i) “ Canadian Securities Laws ” means the securities legislation and regulations of, and the instruments, policies, rules, orders, codes, notices and interpretation notes of, the securities regulatory authorities (including the Toronto Stock Exchange) of any applicable jurisdiction, or jurisdictions collectively, in Canada.

 

(j) “ Common Shares ” means (A) the Company’s common shares, and (B) any shares in capital resulting from a reclassification of such Common Shares.

 

(k) “ Company Alternative Redemption Rate ” means (A) at any time during the period beginning on and including the first anniversary of the Issuance Date and ending on and including the day immediately preceding the third anniversary of the Issuance Date, 105%, (B) at any time during the period beginning on and including the third anniversary of the Issuance Date and ending on and including the day immediately preceding the fourth anniversary of the Issuance Date, 104%, and (C) at any time during the period beginning on and including the fourth anniversary of the Issuance Date and ending on and including the day immediately preceding the Maturity Date, 103%.

 

(l) “ Convertible Debentures ” means the Company’s 9 3/4 % Convertible Debentures in the aggregate principal amount of $30,000,000 issued on November 15 and 16, 2004, in the form provided to each of the Buyers prior to the date of the Securities Purchase Agreement.

 

(m) “ Current Report ” means a current report on Form 8-K under the 1934 Act or an equivalent thereof under Canadian Securities Laws.

 

(n) “ Dollars ” or “ $ ” means United States Dollars.

 

(o) “ Excluded Amount ” means the aggregate principal amount as to which notices have been given by the Company to holders of Notes for redemption in accordance with Section 3(a) of each such Note, but which has not been paid prior to such date of determination, provided that the Company is in compliance with Section 3(a) of each such Note in connection therewith.

 

(p) “ Excluded Taxes ” means, with respect to the Holder, or any other recipient of payment to be made by or on account of any obligations of the Company or any of its Subsidiaries under the Notes, the Securities Purchase Agreement or under any Security Document, income or franchise taxes imposed on (or measured by) its net income by the United States of America or such other jurisdiction under the laws of which such recipient is organized or its principal offices are located.

 

(q) “ Geostar Agreements ” means collectively (A) the Purchase and Sale Agreement and Assignment of Interests – Texas Non Producing Properties (the “ Texas Non Producing Properties Geostar Agreement ”), entered into on the date of the Securities Purchase Agreement, by and among Geostar Corporation (“ Geostar ”), First Source Texas, Inc. (“ FST ”), First Source Bossier, LLC (“ FSB ”), First Texas Gas LP (“ FTG ”), the Company, First Texas Development, Inc. (“ FTD ”), Bossier Basin, LLC (“ BBLLC ”) and First Source Gas, LP (“ FSG ”), (B) the Purchase and Sale Agreement and Assignment of Interests – Texas Producing Properties (the “ Texas Producing Properties Geostar Agreement ”), entered into on the date of the Securities Purchase Agreement, by and among Geostar, FST, FSB, FTG, the Company, FTD, BBLLC and FSG, (C) the Purchase and Sale Agreement and Assignment of Interests – Wyoming and Montana Non Producing Properties, entered into on the date of the Securities Purchase Agreement, by and among Geostar, First Source Wyoming (“ FSW ”), Inc., Squaw Creek Development, Inc. (“ SCD ”), the Company, First Sourcenergy Wyoming, Inc. (“ FSEW ”) and Squaw Creek Inc. (“ SCI ”), and (D) the Purchase and Sale Agreement and Assignment of Interests – Wyoming and Montana Producing Properties, entered into on the date of the Securities Purchase Agreement, by and among Geostar, FSW, SCD, the Company, FSEW and SCI, each in the form provided to each of the Buyers prior to the execution of the Securities Purchase Agreement.

 

(r) “ Governmental Authority ” means the government of the United States of America, the government of Canada or the government of any other nation, or any political subdivision thereof,

 

3


whether state, provincial or local, or any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administration powers or functions of or pertaining to government over the Company or any of its Subsidiaries, or any of their respective properties, assets or undertakings.

 

(s) “ Indemnified Taxes ” means Taxes other than Excluded Taxes.

 

(t) “ Interest Amount ” means, with respect to any Principal as of the date of any determination, all accrued and unpaid Interest (including any Default Interest as defined in Section 6) on such Principal through and including such date of determination.

 

(u) “ Interest Payment Date ” means the first Business Day of each calendar quarter, beginning with the calendar quarter that commences on {Initial Notes}[July 1, 2005; {Additional Notes} INSERT: the first day of the first calendar quarter commencing after the Issuance Date] through and including the last calendar quarter that commences prior to the Maturity Date.

 

(v) “ Issuance Date ” means the original date of issuance of this Note pursuant to the Securities Purchase Agreement, regardless of any exchange or replacement hereof.

 

(w) “ Lien ” means, with respect to any asset, any mortgage, lien, pledge, hypothecation, charge, security interest, encumbrance or adverse claim of any kind and any restrictive covenant, condition, restriction or exception of any kind that has the practical effect of creating a mortgage, lien, pledge, hypothecation, charge, security interest, encumbrance or adverse claim of any kind (including any of the foregoing created by, arising under or evidenced by any conditional sale or other title retention agreement, the interest of a lessor with respect to a Capital Lease Obligation, or any financing lease having substantially the same economic effect as any of the foregoing).

 

(x) “ Maturity Date ” means the date that is five (5) years and one (1) day after the Issuance Date.

 

(y) “ Net Debt Amount ” means, as of the date of any determination, the result of (A) the aggregate outstanding principal amount of this Note and all Other Notes, minus (B) the Excluded Amount, and minus (C) the Company’s and its Subsidiaries aggregate (I) cash, (II) certificates of deposit or time deposits, having in each case a tenor of not more than six (6) months, issued by any United States commercial bank or any branch or agency of a non-United States bank licensed to conduct business in the United States having combined capital and surplus of not less than $250,000,000, and (III) money market funds, provided that substantially all of the assets of such funds consist of securities of the type described in clauses (I) or (II) immediately above, all as determined in accordance with United States generally accepted accounting principles ( “GAAP” ) applied on a consistent basis, as most recently Publicly Disclosed.

 

(z) “ Other Notes ” means all of the senior secured notes, other than this Note, that have been issued by the Company pursuant to the Securities Purchase Agreement and all notes issued in exchange therefor or replacement thereof.

 

(aa) “ Periodic Report ” means a quarterly report of Form 10-Q, or an annual report on Form 10-K under the 1934 Act, or the equivalent thereof under Canadian Securities Laws.

 

(bb) “ Permitted Lien ” means (a) Liens created by the Security Documents; (b) Liens existing on the date of this Agreement not otherwise described in any other clause of this definition and set forth on Schedule 3(bb) to the Securities Purchase Agreement; (c) Liens for Taxes or other governmental charges not at the time due and payable, or (if foreclosure, distraint sale or other similar proceeding shall not have been initiated) which are being contested in good faith by appropriate proceedings diligently prosecuted, so long as foreclosure, distraint, sale or other similar proceedings have not been initiated, and in each case for which the Company and its Subsidiaries maintain adequate reserves in accordance with GAAP; (d) Liens arising in the

 

4


ordinary course of business in favor of carriers, warehousemen, mechanics and materialmen, or other similar Liens imposed by law, which remain payable without penalty or which are being contested in good faith by appropriate proceedings diligently prosecuted, which proceedings have the effect of preventing the forfeiture or sale of the property subject thereto, and in each case for which the Company and its Subsidiaries maintain adequate reserves in accordance with GAAP; (e) Liens arising in the ordinary course of business in connection with worker’s compensation, unemployment compensation and other types of social security (excluding Liens arising under ERISA) or Liens consisting of cash collateral securing the Company’s or any of its Subsidiaries’ performance of surety bonds, bids, performance bonds and similar obligations (exclusive of obligations for the payment of borrowed money) permitted pursuant to clause (a)(IV) of Section 8 and, in each case, for which the Company and its Subsidiaries maintain adequate reserves in accordance with GAAP; (f) attachments, appeal bonds (and cash collateral securing such bonds), judgments and other similar Liens, for sums not exceeding $2,500,000 in the aggregate for the Company and its Subsidiaries, arising in connection with court proceedings, provided that the execution or other enforcement of such Liens is effectively stayed; (g) easements, rights of way, restrictions, minor defects or irregularities in title and other similar Liens arising in the ordinary course of business and not materially detracting from the value of the property subject thereto and not interfering in any material respect with the ordinary conduct of the business of the Company or any Subsidiary; (h) Liens consisting of cash collateral securing the Company’s and its Subsidiaries’ reimbursement obligations under letters of credit and lines of credit permitted by clause (a)(VI) of Section 8 and under letters of credit permitted by clause (a)(VII) of Section 8 , provided that the aggregate amount of cash collateral securing such Indebtedness does not exceed the undrawn face amount of all such letters of credit or lines of credit outstanding at any one time; and (i) Liens on equipment subject to Capital Lease Obligations permitted to be incurred pursuant to clause (a)(V) of Section 8 , to the extent such Liens secure such Capital Lease Obligations; (j) contractual Liens in favor of operators and non-operators under joint operating agreements, or similar contractual arrangements that are functionally equivalent to joint operating agreements, arising in the ordinary course of the business of the Company or any Subsidiary to secure amounts owing thereunder, which amounts are not yet due or are being contested in good faith by appropriate proceedings diligently prosecuted, and for which the Company and its Subsidiaries maintain adequate reserves in accordance with GAAP, provided that such Liens do not materially impair the use of any Real Property or other assets covered by such Liens for the purposes for which such Real Property or other assets are used by the Company or its Subsidiaries or materially impair the value of any Real Property or other assets subject thereto, and provided, further, that the obligations secured by such Liens do not constitute obligations for borrowed money; (k) contractual Liens that arise in the ordinary course of business under production sales agreements and other agreements customary in the oil and gas business for processing, producing, and selling Hydrocarbons securing obligations to deliver already-extracted Hydrocarbons, provided that such Liens do not secure obligations to deliver Hydrocarbons at some future date without receiving full payment therefor within 90 days of delivery, which obligations are not yet due or are being contested in good faith by appropriate proceedings diligently prosecuted, and for which the Company and its Subsidiaries maintain adequate reserves in accordance with GAAP, provided that such Liens do not materially impair the use of any of the Real Property or other assets covered by such Liens for the purposes for which such Real Property or other assets issued by the Company or its Subsidiaries or materially impair the value of the Real Property or other assets subject thereto, and provided, further that the obligations secured by such Liens do not constitute obligations for borrowed money; and (l) Liens arising solely by virtue of any statutory or common law provision relating to banker’s liens, rights of set-off or similar rights and remedies and burdening only deposit accounts or other funds maintained with a creditor depository institution, provided that no such deposit account is a dedicated cash collateral account or is subject to restrictions against access by the depositor in excess of those set forth by regulations promulgated by the Board of Governors of the Federal Reserve System and no such deposit account is intended by the Borrowers to provide collateral to the depository institution.

 

(cc) “ Person ” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization or a government or any department or agency thereof or any other legal entity.

 

(dd) “ Principal ” means the outstanding principal amount of this Note as of the date of any determination.

 

(ee) “ Principal Market ” means the Toronto Stock Exchange; provided , however , that, if after the Issuance Date the Common Shares are listed on a U.S. national securities exchange, the NASDAQ

 

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National Market or the NASDAQ SmallCap Market, the “Principal Market” shall mean such U.S. national securities exchange, NASDAQ National Market or the NASDAQ SmallCap Market, as applicable; provided , further , that if the Common Shares are not listed on any of the Toronto Stock Exchange, a U.S. national securities exchange, the NASDAQ National Market or the NASDAQ SmallCap Market, “Principal Market” shall mean the principal securities exchange or trading market for the Common Shares.

 

(ff) “ Pro Rata Reserve Test Failure Amount ” means, as of the date of any determination, an amount equal to the product of (A) a fraction, of which the numerator is the outstanding Principal as of such date, and of which the denominator is the outstanding principal amount of all Notes as of such date, multiplied by (B) the Reserve Test Failure Amount.

 

(gg) “ Proved PV10 Amount ” means, as of the date of any determination, the present value of estimated future revenues to be generated by the Company and its Subsidiaries, on a consolidated basis from the production of their proved oil and gas reserves (other than reserves within Real Property of the Company and its Subsidiaries located in the Powder River Basin in Wyoming and Montana, as set forth in Schedule 3(cc) to the Securities Purchase Agreement (the “ Powder River Basin Reserves ”) to the extent that the holders of the Notes do not have a valid, perfected first priority security interest therein) (calculated in accordance with SEC guidelines and based on the Company’s most recent independent reserve report prepared by an independent licensed petroleum engineering firm (an “ Independent Reserve Report ”)), net of estimated lease operating expenses, future development costs and ad valorem, production and other taxes (excluding federal and state income taxes), using price and costs as of such date of determination without future escalation and without giving effect to federal or state income taxes and non-property related expenses such as general and administrative expenses, debt service and depreciation, depletion and amortization, and discounted using an annual discount rate of 10%; provided , however , that such amount shall be calculated assuming that (A) the gas price per mcf is equal to the lower of (I) in the case of properties located in the United Sates or any of its territories or possessions (including U.S. federal waters in the Gulf of Mexico), the Henry Hub prompt month price per mcf as of the end of such date of determination or, in the case of any properties located in any other jurisdiction, the spot price for natural gas as quoted on a commodities exchange or other price quotation source generally recognized in the oil and gas industry in such jurisdiction and reasonably acceptable to the holders of Notes representing a majority of the principal amount of Notes then outstanding, and (II) $6.00, and (B) the oil price per barrel is equal to the lower of (I) in the case of properties located in the United States or any of its territories or possessions (including U.S. federal waters in the Gulf of Mexico), the NYMEX prompt month price per barrel as of the end of such date of determination or, in the case of any properties located in any other jurisdiction, the spot price for oil as quoted on a commodities exchange or other price quotation source generally recognized in the oil and gas industry in such jurisdiction and reasonably acceptable to the holders of Notes representing a majority of the principal amount of Notes then outstanding and (II) $40, in each case without future decrease or escalation; provided further , however , that Proved PV10 Amount shall mean zero unless (A) such Proved PV10 Amount is based upon an Independent Reserve Report (or an update thereof prepared (but not certified) by an independent petroleum engineering firm that has been granted access to the Company’s oil and gas well production data, which update includes all material adjustments to the amounts set forth in the most recent Independent Reserve Report to reflect the Company’s and its Subsidiaries’ oil and gas drilling, exploration, development and production since the date of such Independent Reserve Report (a “ Reserve Update ”)) that was current as of a date within 92 days of such date of determination, and (B) the Company has Publicly Disclosed its Proved PV10 Amount as of a date within 274 days of such date of determination (based on an Independent Reserve Report that was current as of such date).

 

(hh) “ Proved and Probable PV10 Amount ” means, as of the date of any determination, the present value of estimated future revenues to be generated by the Company and its Subsidiaries, on a consolidated basis, from the production of their proved and probable oil and gas reserves (other than the Powder River Basin Reserves to the extent that the holders of the Notes do not have a valid, perfected first priority security interest therein) (calculated in accordance with SEC guidelines and based on the Company’s most recent Independent Reserve Report), net of estimated lease operating expenses, future development costs and ad valorem, production and other taxes (excluding federal and state income taxes), using price and costs as of such date of determination without future escalation and without giving effect to federal or state income taxes and non-property related expenses such as general and administrative expenses, debt service and depreciation, depletion and amortization, and discounted using an annual discount rate of 10%; provided , however , that such amount shall be

 

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calculated assuming that (A) the gas price per mcf is equal to the lower of (I) in the case of properties located in the United Sates or any of its territories or possessions (including U.S. federal waters in the Gulf of Mexico), the Henry Hub prompt month price per mcf as of the end of such date of determination or, in the case of any properties located in any other jurisdiction, the spot price for natural gas as quoted on a commodities exchange or other price quotation source generally recognized in the oil and gas industry in such jurisdiction and reasonably acceptable to the holders of Notes representing a majority of the principal amount of Notes then outstanding, and (II) $6.00, and (B) the oil price per barrel is equal to the lower of (I) in the case of properties located in the United States or any of its territories or possessions (including U.S. federal waters in the Gulf of Mexico), the NYMEX prompt month price per barrel as of the end of such date of determination or, in the case of any properties located in any other jurisdiction, the spot price for oil as quoted on a commodities exchange or other price quotation source generally recognized in the oil and gas industry in such jurisdiction and reasonably acceptable to the holders of Notes representing a majority of the principal amount of Notes then outstanding and (II) $40, in each case without future decrease or escalation; provided further , however , that Proved and Probable PV10 Amount shall mean zero unless (A) such Proved and Probable PV10 Amount is based upon an Independent Reserve Report (or Reserve Update) that was current as of a date within 92 days of such date of determination, and (B) the Company has Publicly Disclosed its Proved and Probable PV10 Amount as of a date within 274 days of such date of determination (based on an Independent Reserve Report that was current as of such date).

 

(ii) “ Public Disclosure ” or “ Publicly Disclose ” means (A) prior to the date on which the Company commences filing, or is required to commence filing of, Periodic Reports and Current Reports pursuant to the 1934 Act, the Company’s public dissemination of information through (1) the filing via the System for Electronic Document Analysis and Retrieval under the Canadian Securities Laws (“ SEDAR ”) of a Periodic Report or Current Report disclosing such information pursuant to requirements of Canadian Securities Laws and (2) the issuance of a press release that is widely disseminated in the United States (including via at least one of the Dow Jones & Co., Reuters Economic Services, Bloomberg Business News, Associated Press, United Press International, Business Wire, Filing Services Canada and CNN Matthews wire services), and, in the event that agreements or other documents are filed with the corresponding Periodic Report or Current Report, the disclosure in the press release of the availability of such agreements or other documents through SEDAR and instructions as to how to access SEDAR, and (B) on or after the date on which the Company commences filing, or is required to commence filing, of Periodic Reports and Current Reports pursuant to the 1934 Act, the Company’s public dissemination of information through (1) the filing via SEDAR of a Periodic Report or Current Report disclosing such information pursuant to the requirements of Canadian Securities Laws and (2) the filing via the Electronic Data Gathering, Analysis, and Retrieval system of the SEC (“ EDGAR ”) of a Periodic Report or Current Report disclosing such information pursuant to the requirements of the 1934 Act.

 

(jj) “ Registrable Securities ” means Shares issued or issuable as set forth in the Securities Purchase Agreement, and any shares of capital stock issued or issuable with respect to such Shares as a result of any stock split, stock dividend, recapitalization, exchange or similar event or otherwise, without regard to any limitations on issuance of the Shares.

 

(kk) “ Registration Rights Agreement ” means that certain registration rights agreement, dated as of June 16, 2005, among the Company and the initial holders of the Notes relating to the filing of registration statements covering, among other things, the resale of Registrable Securities, as such agreement may be amended from time to time as provided in such agreement.

 

(ll) “ Registration Statement ” means a registration statement or registration statements filed under the 1933 Act pursuant to the Registration Rights Agreement covering the resale of Registrable Securities.

 

(mm) “Required Proved PV10 Reserve Test Ratio” means, (A) as of any date of determination during the period beginning on and including the first anniversary of the Initial Closing Date and ending on and including the day immediately preceding the second anniversary of the Initial Closing Date, a ratio of 1 to 1, (B) as of any date of determination during the period beginning on and including the second anniversary of the Initial Closing Date and ending on and including the day immediately preceding the third anniversary of the

 

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Initial Closing Date, a ratio of 1.5 to 1, and (C) as of any date of determination on or after the third anniversary of the Initial Closing Date, a ratio of 2 to 1.

 

(nn) “ Required Proved and Probable PV10 Reserve Test Ratio ” means (A) as of any date of determination during the period beginning on and including the Initial Closing Date and ending on and including the day immediately preceding the first anniversary of the Initial Closing Date, a ratio of 1.5 to 1, (B) as of any date of determination during the period beginning on and including the first anniversary of the Initial Closing Date and ending on and including the day immediately preceding the second anniversary of the Initial Closing Date, a ratio of 2.5 to 1, (C) as of any date of determination during the period beginning on and including the second anniversary of the Initial Closing Date and ending on and including the day immediately preceding the third anniversary of the Initial Closing Date, a ratio of 3 to 1, and (D) as of any date of determination on or after the third anniversary of the Initial Closing Date, a ratio of 3.5 to 1.

 

(oo) “Reserve Test Failure” means that, as of the date of any determination, (A) if such date of determination is on or after the first anniversary of the Initial Closing Date, the ratio of the Proved PV10 Amount to the Net Debt Amount as of such date is lower than the Required Proved PV10 Reserve Test Ratio, or (B) the ratio of the Proved and Probable PV10 Amount to the Net Debt Amount as of such date is lower than the Required Proved and Probable PV10 Reserve Test Ratio.

 

(pp) “ Reserve Test Failure Amount ” means that, in the event that there is a Reserve Test Failure as of the date of any determination, the lowest amount by which, the Net Debt Amount would have to be reduced in order for there not to be a Reserve Test Failure (i.e., for the Company to be in compliance as of such date of determination with both the Required Proved PV10 Reserve Test Ratio, if applicable, and the Required Proved and Probable PV10 Reserve Test Ratio).

 

(qq) “ SEC ” means the United States Securities and Exchange Commission, or any successor thereto.

 

(rr) “ Security Agreement ” means that certain security agreement among the Company, its Subsidiaries and the initial holders of the Notes relating to the granting by the Company and the Subsidiaries of a first-priority security interest in substantially all of the assets of the Company and its Subsidiaries (other than assets located in Australia), as such agreement may be amended from time to time as provided in such agreement.

 

(ss) “ Security Documents ” means the Security Agreement, and any other agreement, document or instrument executed concurrently herewith or at any time hereafter pursuant to which the Company, any of its Subsidiaries or any other Person either (i) guarantees payment or performance of all or any portion of the obligations hereunder or under any other instruments delivered in connection with the transactions contemplated hereby and by the Securities Purchase Agreement, and/or (ii) provides, as security for all or any portion of such obligations, a Lien on any of its assets in favor of the Holder, as any or all of the same may be amended, supplemented, restated or otherwise modified from time to time.

 

(tt) “ Series Allocation Percentage ” means, with respect to each holder of Notes of the same Series as this Note, a fraction of which the numerator is the aggregate principal amount of Notes of such Series initially purchased by such holder on the Issuance Date and of which the denominator is the aggregate principal amount of Notes of such Series purchased by all holders on the Issuance Date.

 

(uu) “ Subordinated Notes ” means (i) the Company’s 10% subordinated notes due April and September 2009 in the aggregate principal amount of $3,250,000, in the form provided to each of the Buyers prior to the date of the Securities Purchase Agreement, (ii) FSEW’s 3% subordinated note due January 31, 2006, in the aggregate principal amount of $15,543,900, to be issued to Geostar pursuant to the Geostar Agreements, in the form provided to each of the Buyers prior to the execution of the Securities Purchase Agreement, (iii) FSEW’s 3% subordinated note due January 31, 2006, in the aggregate principal amount of $9,456,100, to be issued to Geostar pursuant to the Geostar Agreements, in the form provided to each of the Buyers prior to the execution of the

 

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Securities Purchase Agreement, and (iv) FTD’s 3% subordinated note due January 31, 2006, in the aggregate principal amount of $7,000,000, to be issued to Geostar pursuant to the Geostar Agreements, in the form provided to each of the Buyers prior to the execution of the Securities Purchase Agreement (the “ FTD Subordinated Note ”).

 

(vv) “ Taxes ” means any and all present or future taxes, levies, imposts, duties, deductions, charges or withholdings imposed by any Governmental Authority.

 

(ww) “ Trading Day ” means any day on which the Common Shares are traded on the Principal Market; provided that “Trading Day” shall not include any day on which the Common Shares are scheduled to trade, or actually trade, on the Principal Market for less than 4.5 hours.

 

(3) Company Redemption .

 

(a) Company Alternative Redemption .

 

(i) General . At any time after the first anniversary of the Issuance Date, the Company shall have the right to redeem some or all of the Principal (a “ Company Alternative Redemption ”) for an amount in cash equal to the product of (A) the applicable Company Alternative Redemption Rate and (B) the sum of (1) the Principal being redeemed pursuant to this Section 3(a) and (2) the Interest Amount with respect to such Principal as of the Company Alternative Redemption Date (as defined below) (the “ Company Alternative Redemption Price ”); provided that the Condition to Company Alternative Redemption (as set forth in Section 3(a)(iii)) and the conditions of this Section 3(a)(i) and Section 3(a)(ii) are satisfied (or waived in writing by the Holder). The Company may exercise its right to Company Alternative Redemption by delivering to the Holder written notice thereof (the “ Company Alternative Redemption Notice ”) at least five (5) Business Days prior to the date of consummation of such redemption (“ Company Alternative Redemption Date ”). The date on which the Holder receives the Company Alternative Redemption Notice is referred to as the “ Company Alternative Redemption Notice Date .” If the Company elects a Company Alternative Redemption pursuant to this Section 3(a), then it must simultaneously take the same action with respect to all of the Other Notes of the same Series as this Note. If the Company elects a Company Alternative Redemption (and similar action under Other Notes of the same Series) with respect to less than all of the aggregate principal amount of Notes of such Series then outstanding, then the Company shall elect to redeem a principal amount (together with the related Interest Amount) from each of the holders of Notes of such Series equal to the product of (I) the aggregate principal amount of the Notes of such Series that the Company has elected to redeem pursuant to this Section 3(a) (or the similar provisions of such Other Notes), multiplied by (II) such holder’s Series Allocation Percentage (such amount with respect to each holder of the Notes is referred to as its “ Pro Rata Redemption Amount ” and with respect to the Holder is referred to as the Pro Rata Redemption Amount). In the event that the initial holder of any Notes of such Series shall sell or otherwise transfer any of such holder’s Notes, the transferee shall be allocated a pro rata portion of such holder’s Series Allocation Percentage. The Company Alternative Redemption Notice shall state (i) the date selected by the Company for the Company Alternative Redemption Date in accordance with this Section 3(a), (ii) the aggregate principal amount of Notes of such Series that the Company has elected to redeem from all of the holders of Notes of such Series pursuant to this Section 3(a), and (iii) each holder’s Pro Rata Redemption Amount of the principal amount of Notes of such Series the Company has elected to redeem pursuant to this Section 3(a).

 

(ii) Mechanics of Company Alternative Redemption . If the Company has exercised its right to Company Alternative Redemption in accordance with Section 3(a) and the conditions of this Section 3(a) are satisfied on the Company Alternative Redemption Date (including the Condition to Company Alternative Redemption as set forth in Section 3(a)(iii)) (or waived in writing by the Holder), then the Holder’s Pro Rata Redemption Amount, if any, that remains outstanding on the Company Alternative Redemption Date shall be redeemed by the Company on such Company Alternative Redemption Date by the payment by the Company to the Holder on such Company Alternative Redemption Date, by wire transfer of immediately available funds, of an amount in cash equal to the Company Alternative Redemption Price for the Holder’s Pro Rata Redemption Amount, unless (A) the Company revokes the Company Alternative Redemption Notice by (I) delivery of written notice thereof to the Holder on or prior to such Company Alternative Redemption Date and (II) payment to the Holder, on the date of delivery of such notice of revocation, by wire transfer of immediately available funds, of an amount in cash equal to 0.50% of the Holder’s Pro Rata Redemption Amount set forth in the Company Alternative

 

9


Redemption Notice, (B) and simultaneously takes the same action with respect to all of the Other Notes of the same Series as this Note. In the event that the Company revokes a Company Alternative Redemption Notice, the Company shall not deliver another Company Alternative Redemption Notice to the Holder prior to the date that is three (3) months after the date of delivery to the Holder of the Company’s notice of such revocation. Notwithstanding anything contained herein to the contrary, no notice delivered by the Company to any Holder regarding a Company Alternative Redemption (or revocation thereof) shall contain any material non-public information regarding the Company or its Subsidiaries.

 

(iii) Condition to Company Alternative Redemption . For purposes of this Section 3(a), “Condition to Company Alternative Redemption” means that, during the period beginning on and including the Issuance Date and ending on and including the applicable Company Alternative Redemption Date, there shall not have occurred the public announcement of a pending, proposed or intended Hostile Change of Control (as defined in Section 5(b)) that has not been abandoned, terminated or consummated and publicly disclosed as such at least ten (10) Trading Days prior to the Company Alternative Redemption Notice Date.

 

(iv) Remedies . In the event that the Company does not pay the Company Alternative Redemption Price in full for the Holder’s Pro Rata Redemption Amount on the Company Alternative Redemption Date and the Condition to Company Alternative Redemption was satisfied, or to the extent not satisfied, was waived by the Holder, then in addition to any remedy the Holder may have under this Note and the Securities Purchase Agreement (including indemnification pursuant to Section 8 thereof or at law or in equity), the Company Alternative Redemption Price payable in respect of such unredeemed Pro Rata Redemption Amount shall bear interest at a rate equal to the lesser of (A) 1.5% per month (equivalent to a per annum rate of 18.0%), prorated for partial months, or (B) the highest lawful interest rate, unless the Company has revoked the Company Alternative Redemption Notice on or prior to the Company Alternative Redemption Date in accordance with Section 3(a)(ii).

 

(b) Mandatory Redemption by the Company at Maturity Date . If any Principal remains outstanding on the Maturity Date, then the Holder shall surrender this Note, duly endorsed for cancellation to the Company, and such Principal shall be redeemed by the Company as of the Maturity Date by payment on the Maturity Date to the Holder, by wire transfer of immediately available funds, of an amount equal to 100% of such Principal.

 

(c) Surrender of Note . Notwithstanding anything to the contrary set forth herein, upon any redemption of this Note in accordance with the terms hereof (including pursuant to this Section 3, Section 4 or Section 5(b)), the Holder shall not be required to physically surrender this Note to the Company unless all of the Principal is being redeemed or cancelled. The Holder and the Company shall maintain records showing the principal amount redeemed or cancelled and the dates of such redemptions or cancellations or shall use such other method, reasonably satisfactory to the Holder and the Company, so as not to require physical surrender of this Note upon each such redemption or cancellation. In the event of any dispute or discrepancy, such records of the Company establishing the Principal to which the Holder is entitled shall be controlling and determinative in the absence of error. Notwithstanding the foregoing, if this Note is redeemed or cancelled as aforesaid, the Holder may not transfer this Note unless the Holder first physically surrenders this Note to the Company, whereupon the Company will forthwith issue and deliver upon the order of the Holder a new Note of like tenor, registered as the Holder may request, representing in the aggregate the remaining Principal represented by this Note. The Holder and any assignee, by acceptance of this Note, acknowledge and agree that, by reason of the provisions of this paragraph, following redemption or cancellation of any portion of this Note, the Principal of this Note may be less than the principal amount stated on the face hereof. Each Note shall bear the following legend:

 

ANY TRANSFEREE OF THIS NOTE SHOULD CAREFULLY REVIEW THE TERMS OF THIS NOTE, INCLUDING SECTION 3(c) HEREOF. THE PRINCIPAL AMOUNT OF THIS NOTE MAY BE LESS THAN THE PRINCIPAL AMOUNT STATED ON THE FACE HEREOF PURSUANT TO SECTION 3(c) HEREOF.

 

(4) Redemption at Option of the Holder .

 

(a) Redemption Option Upon Reserve Test Failure . On the second Business Day following (i) each date that the Company files or is required to file a Periodic Report (which in each case shall

 

10


disclose if there was a Reserve Test Failure as of the end of the period covered by such Periodic Report, and if there was a Reserve Test Failure as of such date, shall disclose the Proved PV10 Amount, Proved and Probable PV10 Amount, Net Debt Amount and Reserve Test Failure Amount as of such date, and details of the calculations and components thereof), and (ii) each date that the Company otherwise Publicly Discloses a revision to its Proved PV10 Amount or its Proved and Probable PV10 Amount, the Company shall deliver to the Holder, by facsimile or overnight courier, a certificate executed by its principal financial officer (an “ Officer’s Certificate ”) (X) certifying as to, if, as of the end of the period covered by such report (in the case of a Periodic Report) or as of the date set forth therein (in the case of other Public Disclosure), there was a Reserve Test Failure, and (Y) if there was a Reserve Test Failure as of such date, specifying the Proved PV10 Amount, Proved and Provable PV10 Amount, Net Debt Amount and Reserve Test Failure Amount as of such date, and the Holder’s Pro Rata Reserve Test Failure Amount as of such date. The Officer’s Certificate may be accompanied, at the Company’s discretion, by a written offer to redeem from the Holder Principal in an amount equal to the Pro Rata Reserve Test Failure Amount (“ Reserve Test Failure Redemption Offer ”). Notwithstanding anything contained herein to the contrary, no Officer’s Certificate or Reserve Test Failure Redemption Offer delivered by the Company to any Holder shall contain any material non-public information regarding the Company or its Subsidiaries. A Reserve Test Failure Redemption Offer shall be irrevocable by the Company. If the Company makes a Reserve Test Failure Redemption Offer, then it must simultaneously take the same action with respect to all Other Notes. In the event that the Company discloses to the Holder the Company’s Proved PV10 Amount or its Proved and Probable PV10 Amount that has not been previously disclosed through Public Disclosure, the Company shall substantially contemporaneously Publicly Disclose such Proved PV10 Amount or Proved and Probable PV10 Amount. In the event that the Company Publicly Discloses its Proved PV10 Amount or its Proved and Probable PV10 Amount as of any date (other than the end of the period covered by a Periodic Report) and there is a Reserve Test Failure as of such date, the Company shall contemporaneously Publicly Disclose such Reserve Test Failure, as well as the Proved PV10 Amount, the Proved and Probable PV10 Amount, the Net Debt Amount and the Reserve Test Failure Amount as of the same date.

 

(i) Mechanics of Reserve Test Failure Redemption . At any time up until a date that is fifteen (15) Business Days after the date of the Reserve Test Failure Redemption Offer, the Holder may require the Company to redeem up to its Pro Rata Reserve Test Failure Amount by delivering written notice thereof via facsimile and overnight courier (a “ Reserve Test Redemption Notice ”) to the Company, which Reserve Test Redemption Notice shall indicate (A) the portion of the Pro Rata Reserve Test Failure Amount that the Holder is electing to have the Company redeem from it and (B) the applicable price at which the Company must redeem the Principal representing such portion of the Pro Rata Reserve Test Failure Amount calculated as the sum of (I) 100% of the Principal that the Holder is electing to have the Company redeem and (II) the Interest Amount with respect to such Principal (the “ Pro Rata Reserve Test Redemption Price ”).

 

(ii) Payment of Reserve Test Redemption Price . Upon the Company’s receipt of a Reserve Test Redemption Notice from any holder of the Other Notes, the Company shall promptly notify the Holder by facsimile of the Company’s receipt of such notice(s). Each holder that has sent such a notice shall, if required pursuant to Section 3(c), promptly submit to the Company such holder’s Note that such holder has elected to have redeemed. The Company shall deliver to the Holder the Pro Rata Reserve Test Redemption Price in cash, by wire transfer of immediately available funds, within five (5) Business Days after the Company’s receipt of a Reserve Test Redemption Notice.

 

(b) Void Redemption . In the event that the Company does not pay the Pro Rata Reserve Test Redemption Price within the specified time period set forth in Section 4(a), at any time thereafter and until the Company pays such unpaid Pro Rata Reserve Test Redemption Price in full, the Holder shall have the option (“ Void Optional Redemption Option ”) to, in lieu of redemption, require the Company to promptly return to the Holder any or all of the Notes or any portion thereof representing the Principal that was submitted for redemption by the Holder under this Section 4 and for which the Pro Rata Reserve Test Redemption Price (together with any interest thereon) has not been paid, by sending written notice thereof to the Company via facsimile (“ Void Optional Redemption Notice ”). Upon the Company’s receipt of such Void Optional Redemption Notice, (i) the Reserve Test Redemption Notice shall be null and void with respect to the Principal subject to the Void Optional Redemption Notice, and (ii) the Company shall immediately return to the Holder any Note subject to the Void Optional Redemption Notice. A holder’s delivery of a Void Optional Redemption Notice and exercise of its rights

 

11


following such notice shall not affect the Company’s obligations to make any payments that have accrued prior to the date of such notice.

 

(c) Disputes; Miscellaneous . In the case of a bona fide dispute as to the determination or arithmetic calculation of the Pro Rata Reserve Test Redemption Price, the Company shall pay the amount that is not disputed and shall transmit an explanation of the disputed determinations or arithmetic calculations to the Holder via facsimile within two (2) Business Days of receipt or deemed receipt of the Holder’s redemption notice or other date of determination. If the Holder and the Company are unable to agree upon the determination or calculation of the Pro Rata Reserve Test Redemption Price within two (2) Business Days of such disputed determination or arithmetic calculation being transmitted to the Holder, then the Company shall promptly (and in any event within two (2) Business Days) submit via facsimile the disputed determination or arithmetic calculation of the Pro Rata Reserve Test Redemption Price to an independent, reputable investment banking firm agreed to by the Company and the holders of the Notes representing at least two-thirds (2/3) of the aggregate principal amounts of the Notes then outstanding as to which such determination or calculation is being made. The Company shall direct the investment bank to perform the determination or calculation and notify the Company and the Holder of the results no later than two (2) Business Days from the time it receives the disputed determination or calculation. Such investment bank’s determination, as the case may be, shall be binding upon all parties absent demonstrable error.

 

(5) Other Rights of the Holders .

 

(a) Reorganization, Reclassification, Consolidation, Merger or Sale . Any recapitalization, reorganization, reclassification, consolidation, merger, sale of all or substantially all of the Company’s assets to another Person or other transaction that is effected in such a way that holders of Common Shares are entitled to receive (either directly or upon subsequent liquidation) stock, securities or assets with respect to or in exchange for Common Shares is referred to herein as “ Organic Change .” Prior to the consummation of any (i) sale of all or substantially all of the Company’s assets to an acquiring Person (including, for the avoidance of doubt, the sale of all or substantially all of the assets of the Company’s Subsidiaries in the aggregate) or (ii) other Organic Change following which the Company is not the surviving entity, the Company will secure from the Person purchasing such assets or the successor resulting from such Organic Change (in each case, the “ Acquiring Entity ”) a written agreement, in form and substance satisfactory to the holders representing at least two-thirds (2/3) of the aggregate principal amount of the Notes then outstanding, to deliver to the Holder in exchange for this Note, a security of the Acquiring Entity evidenced by a written instrument satisfactory to the holders representing at least two-thirds (2/3) of the aggregate principal amount of the Notes then outstanding.

 

(b) Optional Redemption Upon Change of Control . In addition to the rights of the Holder under Section 5(a), upon a Change of Control (as defined below) that follows delivery by the Company to the Holder of a Change of Control Redemption Offer (as defined below), the Holder shall have the right, at the Holder’s option, to require the Company to redeem all or a portion of the Principal at a price equal to the product of (i) the applicable Company Alternative Redemption Rate (or 115% in the case of an event satisfying the definition of Change of Control pursuant to clause (III) of this Section 5(b) that is not pursuant to a written agreement with the Company approved by the Company’s Board of Directors (a “ Hostile Change of Control ”)) and (ii) the sum of (A) such Principal and (B) the Interest Amount with respect to such Principal (such product with respect to all of the Principal, the “ Change of Control Redemption Amount ”). No sooner than thirty (30) nor later than twenty (20) Business Days prior to the consummation of a Change of Control, the Company shall deliver written notice thereof via facsimile and overnight courier (a “ Notice of Change of Control ”) to the Holder, provided that such information shall be made known to the public prior to, or contemporaneously with such notice being provided to the Holder. The Notice of Change of Control may be accompanied, at the Company’s discretion, by a written offer to redeem from the Holder an amount equal to the Change of Control Redemption Amount (a “ Change of Control Redemption Offer ”). Notwithstanding anything contained herein to the contrary, no Notice of Change of Control or Change of Control Redemption Offer shall contain any material non-public information regarding the Company or any of its Subsidiaries. A Change of Control Redemption Offer shall be irrevocable by the Company; provided, however, that it shall automatically be revoked upon the termination or abandonment of the Change of Control to which it relates and the Public Disclosure thereof. If the Company makes a Change of Control Redemption Offer, then it must simultaneously take the same action with respect to all Other Notes. At any time during the period

 

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beginning after receipt of a Change of Control Redemption Offer and ending on the earlier of the date of such Change of Control or the automatic revocation of the Change of Control Redemption Offer as provided above, the Holder may require the Company to redeem all or a portion of the Principal by delivering written notice thereof via facsimile and overnight courier (a “ Notice of Redemption Upon Change of Control ”) to the Company, which Notice of Redemption Upon Change of Control shall indicate (i) the Principal that the Holder is submitting for redemption, and (ii) the aggregate amount to which the Holder is entitled upon redemption of such Principal, as calculated pursuant to the first sentence of this Section 5(b) (the “ Change of Control Redemption Price ”). Upon the Company’s receipt of a Notice(s) of Redemption Upon Change of Control from any holder of the Other Notes, the Company shall promptly, but in no event later than three (3) Business Days following such receipt, notify the Holder by facsimile of the Company’s receipt of such Notice(s) of Redemption Upon Change of Control. The Company shall deliver the Change of Control Redemption Price simultaneously with the consummation of the Change of Control; provided that, if required by Section 3(c), this Note shall have been so delivered to the Company. The Company shall not enter into any binding agreement or other arrangement with respect to a Change of Control unless such agreement or other arrangement provides that the payments provided for in this Section 5(b) in connection with such Change of Control shall be made in accordance herewith, and the Company complies with such provision. If the Holder has delivered to the Company a Notice of Redemption Upon Change of Control and the Change of Control is not consummated by the date that is thirty (30) Business Days after the date of the Notice of Change of Control, the Holder may revoke its Notice of Redemption Upon Change of Control at any time on or after such date and prior to the consummation of the Change of Control by delivering written notice thereof via facsimile and overnight courier to the Company. If the Company terminates or abandons the Change of Control, it shall Publicly Disclose such termination or abandonment, and upon such disclosure, the Holder’s Notice of Redemption Upon Change of Control, if previously delivered to the Company and not revoked, shall be deemed null and void without further action on the part of the Holder or the Company. For purposes of this Section 5(b), “ Change of Control ” means (I) the consolidation, merger, amalgamation or other business combination of the Company with or into another Person (other than (A) a consolidation, merger, amalgamation or other business combination in which holders of the Company’s voting power immediately prior to the transaction continue after the transaction to hold, directly or indirectly, a majority of the combined voting power of the surviving entity or entities entitled to vote generally for the election of a majority of the members of the board of directors (or their equivalent if other than a corporation) of such entity or entities, or (B) pursuant to a migratory merger effected solely for the purpose of changing the jurisdiction of incorporation of the Company), (II) the sale or transfer of all or substantially all of the Company’s assets (including, for the avoidance of doubt, the sale of all or substantially all of the assets of the Company’s Subsidiaries in the aggregate) or (III) the consummation of a purchase, tender or exchange offer made to and accepted by holders of outstanding Common Shares and as a result of which any Person or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the 1934 Act) holds more than 50% of the outstanding Common Shares, provided , however , that neither (x) issuances of Common Shares as part of the “look-back payment” set forth in Sections 3.3, 3.4 and 4.2 of each of the Texas Non Producing Properties Geostar Agreement and the Texas Producing Properties Geostar Agreement nor (y) issuances of Common Shares as part of the option to acquire existing and future Gippsland Basin mineral licenses granted to the Company pursuant to Section 6 of the Letter of Intent dated April 15, 2005, by and between the Company and Geostar Corporation (the “ Geostar Letter of Intent ”), shall constitute a Change of Control, so long as none of the terms, conditions or provisions of the Geostar Agreement or the Geostar Letter of Intent (including, in each case, any provisions with respect to issuances of Common Shares) are amended or otherwise modified after the date of the Securities Purchase Agreement in a manner which in any way affects the Company’s obligation to issue securities thereunder, including with respect to the amount or terms of the securities to be issued, or which otherwise is materially adverse to the Holders.

 

(6) Interest . Interest shall be payable in cash on each Interest Payment Date, to the record holder of this Note on such Interest Payment Date, by wire transfer of immediately available funds to an account designated by the Holder. Any accrued and unpaid Interest that is not paid within five (5) Business Days of such accrued and unpaid Interest’s Interest Payment Date shall bear interest, until the same is paid in full, at a rate equal to the lesser of (i) 1.5% per month (equivalent to a per annum rate of 18.0%), prorated for partial months, or (ii) the highest lawful interest rate, from such Interest Payment Date, (the “ Default Interest ”).

 

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(7) Defaults and Remedies .

 

(a) Events of Default . An “ Event of Default, ” each of which shall constitute an event of failure or default under this Note, is (i) default in payment of any Principal of this Note, any Company Alternative Redemption Price (unless the Company has revoked the applicable Company Alternative Redemption Notice on or prior to the applicable Company Alternative Redemption Date in accordance with Section 3(a)(ii)), any Pro Rata Reserve Test Redemption Price or any Change of Control Redemption Price, when and as due; (ii) default in payment of any Interest on this Note that is not included in an amount described in the immediately preceding clause (i) that is not cured within three (3) Business Days from the date such Interest was due; (iii) failure by the Company for 30 days after notice to it to comply with any other provision of this Note in all material respects; (iv) any default in payment of at least $2,500,000 individually or in the aggregate, under, or acceleration prior to maturity of, or any event or circumstances arising such that, any person is entitled, or could, with the giving of notice and/or lapse of time and/or the fulfillment of any condition and/or the making of any determination, become entitled, to require repayment before its stated maturity of, or to take any step to enforce any security for, any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any indebtedness for money borrowed of at least $2,500,000 by the Company or any of its Subsidiaries or for money borrowed the repayment of at least $2,500,000 of which is guaranteed by the Company or any of its Subsidiaries, whether such indebtedness or guarantee exists as of the Issuance Date or shall be created thereafter; (v) the Company or any of its Subsidiaries pursuant to or within the meaning of any Bankruptcy Law (as defined below); (A) commences a voluntary case or applies for a receiving order; (B) consents to the entry of an order for relief against it in an involuntary case or consents to any involuntary application for a receiving order; (C) consents to the appointment of a Custodian of it or any of its Subsidiaries for all or substantially all of its property; (D) makes a general assignment for the benefit of its creditors; or (E) admits in writing that it is generally unable to pay its debts as the same become due; (vi) an involuntary case or other proceeding is commenced directly against the Company or any of its Subsidiaries seeking liquidation, reorganization or other relief with respect to it or its Indebtedness under any Bankruptcy Law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, and such involuntary case or other Bankruptcy Law proceeding remains undismissed and unstayed for a period of sixty (60) days, or an order for relief is entered against the Company or any of its Subsidiaries as debtor under the Bankruptcy Laws as are now or hereafter in effect; (vii) the Company fails to file, or is determined to have failed to file, in a timely manner (1) any Periodic Report or Current Report required to be filed with the SEC pursuant to the 1934 Act (other than a Current Report on Form 8-K that is required solely pursuant to Item 1.01, 1.02, 2.03, 2.04, 2.05, 2.06 or 4.02(a) of Form 8-K), provided that any filing made within the time period permitted by Rule 12b-25 under the 1934 Act and pursuant to a timely filed Form 12b-25 shall, for purposes of this clause (vii), be deemed to be timely filed, or (2) any Periodic Report required to be filed pursuant to Canadian Securities Laws; provided, however, that neither the first late filing of a Periodic Report either with the SEC or pursuant to Canadian Securities Laws after the date of the Securities Purchase Agreement, nor the first late filing of a Current Report (other than a Current Report on Form 8-K that is required solely pursuant to Item 1.01, 1.02, 2.03, 2.04, 2.05, 2.06 or 4.02(a) of Form 8-K) with the SEC after the date of the Securities Purchase Agreement shall be deemed an Event of Default if the Company files such Periodic Report or Current Report, as the case may be, no later than five (5) Business Days after the date on which such report was due; (viii) the Company or any of its Subsidiaries breaches any representation, warranty, covenant or other term or condition of the Security Documents, subject to all of the materiality qualifiers and any applicable grace periods set forth therein, that adversely affects the security interest of the Holder (or any agent or representative thereof on the Holder’s behalf) in any material portion of the Collateral (as defined in the Security Agreement) or the perfection or priority thereof; (ix) any principal amount of the 15% Notes or the Convertible Debentures is outstanding on the Business Day that is four (4) Business Days prior to the scheduled maturity date thereof; (x) one or more judgments, non-interlocutory orders or decrees shall be entered by a U.S. or Canadian, state, provincial or federal or foreign court or administrative agency of competent jurisdiction against any the Company or any of its Subsidiaries involving in the aggregate a liability (to the extent not covered by independent third-party insurance), as to any single or related series of transactions, incidents or conditions, of $2,500,000 or more, and the same shall remain unsatisfied, unvacated, unbonded or unstayed pending appeal for a period of thirty (30) days after the entry thereof; (xi) the Company fails to deliver an Officer’s Certificate pursuant to Section 4(a) within five (5) days after the date such Officer’s Certificate is required to be delivered pursuant to Section 4(a), any Officer’s Certificate delivered to the Holder does not contain any of the information required to be included therein pursuant to Section 4(a), or any of the information contained in any Officer’s Certificate delivered to the Holder is not true, correct and complete in all material respects; (xii) within thirty (30) days after delivery of an Officer’s Certificate in connection with a Reserve Test Failure, the Company fails to (A) make a Reserve Test Failure Redemption Offer to all holders of the Notes with respect to all of the Notes or (B) pay the Pro Rata Reserve Test Redemption Amount to

 

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any holder that has delivered to the Company a Reserve Test Redemption Notice, as set forth in, and in accordance with, Section 4(a) of each of the Notes; (xiii) in connection with any Change of Control, the Company fails to (A) deliver a Notice of Change of Control within the time period in which such Notice of Change of Control is required to be delivered pursuant to Section 5(b), (B) deliver a Change of Control Redemption Offer along with any Notice of Change of Control, or (C) pay the applicable Change of Control Redemption Price to any holder that has delivered to the Company a Notice of Redemption Upon Change of Control as set forth in, and in accordance with, Section 5(b) of each of the Notes; (xiv) the breach by the Company or any of its Subsidiaries of any representation, warranty, covenant or other term or condition of the Securities Purchase Agreement, this Note, the Security Documents or any other agreement, document, certificate or other instrument delivered in connection with the transactions contemplated thereby and hereby, except to the extent that such breach would not have a Material Adverse Effect (as defined in Section 3(a) of the Securities Purchase Agreement) or a Property Material Adverse Effect (as defined in Section 3(s) of the Securities Purchase Agreement) and except, in the case of a breach of a covenant or other term that is curable, only if such breach continues for a period of at least thirty (30) days; (xv) the Company’s issuance, incurrence, assumption, maintenance, sufferance to exist or extension of the term of any Indebtedness referenced in clause (a)(V), (a)(VI) or (a)(VII) of Section 8 hereof or Section 4(n) of the Securities Purchase Agreement, in either case in an aggregate amount in excess of the limit set forth in such clause; provided, however, that it shall not constitute an Event of Default under this clause (xv) if and to the extent that such Indebtedness is in an aggregate amount greater than 100% but less than 150% of such limit for a period of no more than ten (10) Business Days; (xvi) the Company’s failure to comply with the provisions of Section 8 (except to the extent covered by clause (xv) of this Section 7) or 9 hereof, or Section 4(l)(i), 4(n) (except to the extent covered by clause (xv) of this Section 7), 4(o), 4(p), 4(q), 4(r), 4(s), 4(t)(iii), 4(t)(iv), 4(t)(vi) (except, in the case of Section 4(t)(vi), with respect to the granting to the Buyers of a valid, perfected first priority security interest in the assets of any acquired Subsidiary that do not represent a material portion of the Collateral), 4(v) or 4(y) of the Securities Purchase Agreement; (xvii) the Company’s failure to comply with the provisions of Section 4(t)(i) of the Securities Purchase Agreement with respect to any portion of the Production Proceeds that represents a material portion of the Collateral; (xviii) the Company’s failure to comply with Section 4(u)(i) or 4(u)(ii) of the Securities Purchase Agreement, in either case with respect to the obligation thereunder to grant the Buyers a valid, perfected first priority security interest in Real Property to the extent such Real Property represents a material portion of the Collateral; (xix) the Company’s failure to comply with the provisions of Section 4(l)(ii) or 4(t)(ii) of the Securities Purchase Agreement, except, in the case of a breach of a covenant or other term that is curable, then only if such breach continues for a period of at least five (5) days; (xx) the Company’s failure to comply with Section 4(t)(i) of the Securities Purchase Agreement with respect to any portion of the Production Proceeds that does not represent a material portion of the Collateral, except, in the case of a breach of a covenant or other term that is curable, then only if such breach continues for a period of at least five (5) days; (xxi) the Company’s failure to comply with Section 4(t)(vi) of the Securities Purchase Agreement with respect to the granting to the Buyers of a valid, perfected first priority security interest in the assets of any acquired Subsidiary that do not represent a material portion of the Collateral, except in the case of a breach of a covenant or other term that is curable, then only if such breach continues for a period of at least five (5) days; or (xxii) the Company’s failure to comply with Section 4(u)(i) or 4(u)(ii) of the Securities Purchase Agreement, in either case, with respect to the obligation thereunder to grant the Buyers a valid, perfected first priority security interest in Real Property to the extent such Real Property does not represent a material portion of the Collateral, except, in the case of a breach of a covenant or other term that is curable, then only if such breach continues for a period of at least five (5) days; or (xxiii) the Company’s failure to issue or deliver any Shares to the Holder on, or within five (5) Business Days after, the date on which such Shares are to be issued or delivered to the Holder under the Securities Purchase Agreement. The term “ Bankruptcy Law ” means Title 11, U.S. Code, the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada), the Winding Up and Restructuring Act (Canada) or any similar foreign, federal (U.S. or Canadian), provincial or state law for the relief of debtors. Within two Business Days after the occurrence of any Event of Default, the Company shall make Public Disclosure thereof and contemporaneously deliver written notice thereof to the Holder.

 

(b) Remedies . If an Event of Default occurs and is continuing, the Holder of this Note may declare all of this Note, including all amounts due hereunder (the “ Acceleration Amount ”), to be due and payable immediately, except that in the case of an Event of Default arising from events described in clauses (v) and (vi) of Section 7(a), this Note shall immediately become due and payable without further action or notice; provided that in the case of an Event of Default arising from events described in clause (xiii) of Section 7(a), the Acceleration Amount shall equal the applicable Change of Control Redemption Amount. In addition to any remedy the Holder

 

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may have under this Note, the Security Documents and the Securities Purchase Agreement, such unpaid amount shall bear interest, until paid in full, at a per annum rate equal to the lesser of (A) the sum of (i) the Applicable Interest Rate and (ii) three percent (3.0%) per annum (prorated for partial years) and (B) the highest lawful interest rate. Nothing in this Section 7 shall limit any other rights the Holder may have under this Note, the Security Documents or the Securities Purchase Agreement.

 

(c) Void Acceleration . In the event that the Company does not pay the Acceleration Amount within five (5) Business Days of this Note becoming due under Section 7(b), at any time thereafter and until the Company pays such unpaid Acceleration Amount in full, the Holder shall have the option to, in lieu of redemption, require the Company to promptly return this Note (to the extent this Note has been previously delivered to the Company), in whole or any portion thereof, to the Holder, by sending written notice thereof to the Company via facsimile (the “ Void Acceleration Notice ”). Upon the Company’s receipt of such Void Acceleration Notice, (i) the acceleration pursuant to Section 7(b) shall be null and void with respect to the portion of this Note subject to such Void Acceleration Notice, and (ii) the Company shall promptly return the portion of this Note (to the extent this Note has been previously delivered to the Company) subject to such Void Acceleration Notice.

 

(8) Other Indebtedness . Payments of principal and other payments due under this Note shall not be subordinated to any obligations of the Company. The Holder of this Note is entitled to the benefits of the Security Documents, and in the event of a transfer of this Note in accordance with the terms hereof and the Securities Purchase Agreement, the Holder shall be deemed to have assigned its rights under the Security Documents. For so long as this Note is outstanding, the Company shall not, and shall not permit any of its Subsidiaries to, (a) issue, incur, assume, maintain, suffer to exist or extend the term of any Indebtedness (as defined below) except for (I) Indebtedness under the Notes, (II) Indebtedness, (A) the holders of which agree in writing to be subordinate to the Notes on terms and conditions acceptable to the Buyers, including with regard to interest payments and repayment of principal, (B) which does not mature or otherwise require or permit redemption or repayment prior to or on the Maturity Date of any Notes then outstanding; and (C) which is not secured by any of the assets of the Company or any of its Subsidiaries (“ Permitted Subordinated Indebtedness ”), (III) Indebtedness solely between the Company and/or one of its U.S. or Canadian Subsidiaries, on the one hand, and the Company and/or one of its U.S. or Canadian Subsidiaries, on the other, provided that in each case all of the equity of any such Subsidiary (excluding directors’ qualifying shares to the extent that the issuance thereof is required by law) is directly or indirectly owned by the Company, such Subsidiary is controlled by the Company, such Subsidiary is a party to the Guaranty Agreement and the Security Agreement and the holders of the Notes have a valid, perfected first priority security interest in substantially all of the assets of such Subsidiary (other than assets located in Australia or as provided in Section 4(o)(ii) or 4(t)(vii) of the Securities Purchase Agreement), (IV) surety bonds, bids, performance bonds, and similar obligations (exclusive of obligations for the payment of borrowed money) obtained by the Company and its Subsidiaries in the ordinary course of business for the purpose of satisfying federal, state, provincial and territorial and/or local legal requirements for owning and operating their oil and gas properties, (V) Capital Lease Obligations incurred in connection with acquiring equipment for the Company’s oil and gas exploration and production business in amounts not exceeding individually, the fair market value of the equipment subject to such Capital Lease Obligations and in an amount not exceeding, in the aggregate, $2,500,000 at any one time, (VI) reimbursement obligations at any one time in respect of letters of credit or lines of credit issued by one or more financial institutions for the account of the Company or any of its Subsidiaries in connection with the Company’s establishment and maintenance of a Hedged (as defined in Section 4(r) of the Securities Purchase Agreement) position with respect to, at any time, a maximum of 50% of the Company’s estimate of its oil and gas production for the succeeding 12 calendar months on a rolling 12 calendar-month basis, so long as the aggregate amount of all such letters of credit and lines of credit does not exceed $1,000,000 at any one time, (VII) reimbursement obligations in respect of letters of credit issued for the account of the Company or any of its Subsidiaries for the purpose of securing performance obligations of the Company or its Subsidiaries incurred in the ordinary course of business (and not issued in connection with the Company’s establishment and maintenance of a Hedged position) so long as the aggregate face amount of all such letters of credit does not exceed $2,500,000 at any one time; (VIII) Indebtedness under the 15% Notes (provided that the terms of such 15% Notes have not been amended or modified after their issuance dates); (IX) Indebtedness under the Convertible Debentures (provided that the terms of such Convertible Debentures have not been amended or modified after their issuance dates); and (X) Indebtedness under the Subordinated Notes (provided that the terms of such Subordinated Notes have not been amended or modified after their issuance dates); (b) issue, incur, assume, assure, maintain, suffer to exist or extend

 

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the term of any Indebtedness in a principal amount in excess of $5,000,000 where the proceeds of such Indebtedness are to be used to develop, or in connection with the development of, assets in which the holders of the Notes do not have a valid, perfected first-priority security interest; (c) issue any capital stock of the Company or any Subsidiary redeemable prior to or on the Maturity Date; (d) directly or indirectly, create, assume or suffer to exist any Lien, other than a Permitted Lien, on any asset now owned or hereafter acquired by the Company or any of its Subsidiaries, provided , however , that with respect to Liens, other than Permitted Liens, on Real Property (and Collateral related thereto to the extent that the Liens on such related Collateral are perfected only in real property records) that is owned or leased as of the date hereof, or is hereafter acquired, by the Company or any of its Subsidiaries and does not represent a material portion of the Collateral and which Liens existed or exist at the time the Company or any of its Subsidiaries acquired or acquires such Real Property (and related Collateral, if applicable) but of which neither the Company nor any of its Subsidiaries were or are aware at the time of consummation of such acquisition, it shall not constitute a violation of this clause (d) if such Liens are terminated and released within ten (10) Business Days after the date on which the Company or any of its Subsidiaries first becomes aware of the existence thereof, so long as such Liens were or are not created, incurred or granted by the Company or any of its Subsidiaries; (e) except as required or expressly permitted by Section 4(d) or 4(q) of the Securities Purchase Agreement, redeem, or otherwise repay any principal of, any Indebtedness (other than Indebtedness under the Notes and Indebtedness permitted by clauses (a)(III), (a)(IV), (a)(V), (a)(VI), (a)(VII), (a)(IX) and (a)(X) of this Section 8; (f) on or at any time after an Event of Default, pay any interest on any Indebtedness, (g) redeem or otherwise repay, other than entirely in consideration for non-redeemable capital stock of the Company or Permitted Subordinated Indebtedness, any Indebtedness under the Subordinated Notes or the Convertible Debentures prior to the scheduled maturity thereof or at any time at which there is a Reserve Test Failure or Event of Default or would be a Reserve Test Failure or an Event of Default after giving effect to such repayment or redemption; provided , however , that the Company may redeem or otherwise repay in cash, solely out of proceeds from the Company’s issuance after the Initial Closing Date of Permitted Subordinated Indebtedness or nonredeemable capital stock of the Company, Indebtedness under the FTD Subordinated Note at any time (whether at or prior to maturity of the FTD Subordinated Note) at which there is no Reserve Test Failure or Event of Default and would not be a Reserve Test Failure or Event of Default after giving effect to such redemption or repayment; or (h) accelerate the maturity, or otherwise amend or modify any of the terms, of any Indebtedness such that would materially adversely affect any of the interests of the holders of the Notes. For purposes of this Note: (x) “ Indebtedness ” of any Person means, without duplication (A) all indebtedness for borrowed money, (B) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (other than unsecured account trade payables that are (i) entered into or incurred in the ordinary course of the Company’s and its Subsidiaries’ business, (ii) on terms that require full payment within 90 days and (iii) not unpaid in excess of 90 days from receipt of invoice or are being contested in good faith and as to which such reserve as is required by GAAP has been made (except to the extent that at any one time an aggregate among the Company and its Subsidiaries of not more than $1,000,000 in trade accounts payable is unpaid in excess of 90 days from the receipt of invoice), (C) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (D) all obligations evidenced by notes, bonds, debentures, redeemable capital stock or similar instruments, including obligations so evidenced incurred in connection with the acquisition of property, assets or businesses, (E) all indebtedness created or arising under any conditional sale or other title retention agreement, or incurred as financing, in either case with respect to any property or assets acquired with the proceeds of such indebtedness (even though the rights and remedies of the seller or bank under such agreement in the event of default are limited to repossession or sale of such property), (F) all Capital Lease Obligations, (G) all indebtedness referred to in clauses (A) through (F) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, Lien, pledge, charge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person that owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (H) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (A) through (G) above; (y) “ Capital Lease Obligation ” means, as to any Person, any obligation that is required to be classified and accounted for as a capital lease on a balance sheet of such Person prepared in accordance with GAAP, and the amount of such obligation shall be the capitalized amount thereof, determined in accordance with GAAP; and (z) “ Contingent Obligation ” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto.

 

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(9) Participation; Restrictions . While this Note is outstanding, the Company shall not, and shall not permit any of its Subsidiaries to: (i) declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock or establish or set any record date with respect to any of the foregoing; provided, however, that any Subsidiary may declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any of its capital stock that is held solely by the Company or by a U.S. or Canadian Subsidiary, provided that all of the equity of such Subsidiary (excluding directors’ qualifying shares to the extent that the issuance thereof is required by law) is directly or indirectly owned by the Company, such Subsidiary is controlled by the Company, such Subsidiary is a party to the Guaranty Agreement and the Security Agreement, and the holders of the Notes have a valid perfected, first priority security interest in substantially all of the assets of such Subsidiary (other than assets located in Australia or as provided in Section 4(o)(ii) of the Securities Purchase Agreement), (ii) purchase, redeem or otherwise acquire, directly or indirectly, any shares in the Company’s capital or any shares of the capital stock of any of its Subsidiaries, except repurchases of unvested shares at cost in connection with the termination of the employment relationship with any employee pursuant to share option or purchase agreements in effect on the date hereof or cashless exercise of options by employees under existing share options or purchase agreements, in each case as set forth on Schedule 3(c) of the Securities Purchase Agreement, or (iii) grant, issue or sell any Options, Convertible Securities or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any class of its capital stock. While this Note is outstanding, the Company and its Subsidiaries shall not enter into any agreement which would limit or restrict the Company’s or any of its Subsidiaries’ ability to perform under, or take any other voluntary action to avoid or seek to avoid the observance or performance of any of the terms to be observed or performed by it under, this Note, the Securities Purchase Agreement, the Registration Rights Agreement and the Security Documents.

 

(10) Notices .

 

(a) The Company will give written notice to the Holder at least ten (10) Business Days prior to the date on which the Company closes its books or takes a record (I) with respect to any dividend or distribution upon the Common Shares, (II) with respect to any pro rata subscription offer to holders of Common Shares or (III) for determining rights to vote with respect to any Organic Change), dissolution or liquidation, provided that such information shall be made known to the public prior to, or contemporaneously with, such notice being provided to the Holder.

 

(b) The Company will also give written notice to the Holder at least twenty (20) Business Days prior to the date on which any Organic Change (as defined in Section 5(a)), dissolution or liquidation will take place, provided that such information shall be made known to the public prior to or in conjunction with such notice being provided to the Holder.

 

(11) Vote to Change the Terms of the Notes . The written consent of the Company and the holders representing at least two-thirds (2/3) of the principal amount then outstanding under the Notes of the same Series shall be required for any change that relates only to such Series of Notes (including this Note) and upon receipt of such consent, each such Note of the such Series shall be deemed amended thereby. The written consent of the Company and the holders representing at least two-thirds (2/3) of the Aggregate Notes Balance shall be required for any change that relates to all of the Notes (including this Note), and upon receipt of such consent, each Note shall be deemed amended thereby.

 

(12) Lost or Stolen Notes . Upon receipt by the Company of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Note, and, in the case of loss, theft or destruction, of an indemnification undertaking by the Holder to the Company in customary form and reasonably satisfactory to the Company and, in the case of mutilation, upon surrender and cancellation of this Note, the Company shall execute and deliver a new Note of like tenor and date.

 

(13) Remedies, Characterizations, Other Obligations, Breaches and Injunctive Relief . The remedies provided in this Note shall be cumulative and in addition to all other remedies available under this Note, at

 

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law or in equity (including a decree of specific performance and/or other injunctive relief), no remedy contained herein shall be deemed a waiver of compliance with the provisions giving rise to such remedy, and nothing herein shall limit the Holder’s right to pursue actual damages for any failure by the Company to comply with the terms of this Note. The Company covenants to the Holder that there shall be no characterization concerning this instrument other than as expressly provided herein. Amounts set forth or provided for herein with respect to payments, and the like (and the computation thereof) shall be the amounts to be received by the Holder thereof and shall not, except as expressly provided herein, be subject to any other obligation of the Company (or the performance thereof). The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Holder and that the remedy at law for any such breach may be inadequate. The Company therefore agrees that, in the event of any such breach or threatened breach, the Holder shall be entitled, in addition to all other available remedies, to an injunction restraining any breach, without the necessity of showing economic loss and without any bond or other security being required.

 

(14) Specific Shall Not Limit General; Construction . No specific provision contained in this Note shall limit or modify any more general provision contained herein. This Note shall be deemed to be jointly drafted by the Company and all of the Purchasers and shall not be construed against any person as the drafter hereof.

 

(15) Failure or Indulgence Not Waiver . No failure or delay on the part of the Holder in the exercise of any power, right or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other right, power or privilege.

 

(16) Notice . Whenever notice is required to be given under this Note, unless otherwise provided herein, such notice shall be given in accordance with Section 9(f) of the Securities Purchase Agreement.

 

(17) Transfer of this Note . The Holder may assign or transfer some or all of its rights hereunder, subject to compliance with the 1933 Act and the provisions of Section 2(f) of the Securities Purchase Agreement without the consent of the Company.

 

(18) Payment of Collection, Enforcement and Other Costs . If (a) this Note is placed in the hands of an attorney for collection or enforcement or is collected or enforced through any legal proceeding; or (b) an attorney is retained to represent the Holder in any bankruptcy, reorganization, receivership of the Company or other proceedings affecting Company creditors’ rights and involving a claim under this Note, then the Company shall pay the costs incurred by the Holder for such collection, enforcement or action, including reasonable attorneys’ fees and disbursements.

 

(19) Cancellation . After all principal and other amounts at any time owed under this Note have been paid in full in accordance with the terms hereof, this Note shall automatically be deemed canceled, shall be surrendered to the Company for cancellation and shall not be reissued.

 

(20) Note Exchangeable for Different Denominations . Subject to Section 3(c) in the event of a redemption pursuant to this Note of less than all of the Principal, the Company shall promptly cause to be issued and delivered to the Holder, upon tender by the Holder of this Note, a new Note of like tenor representing the remaining Principal that has not been so converted or redeemed. This Note is exchangeable, upon the surrender hereof by the Holder at the principal office of the Company, for a new Note or Notes containing the same terms and conditions and representing in the aggregate the Principal, and each such new Note will represent such portion of such Principal as is designated by the Holder at the time of such surrender. The date the Company issued this Note shall be the “ Issuance Date ” hereof regardless of the number of times a new Note shall be issued.

 

(21) Taxes .

 

(a) Payments Free of Taxes . Any and all payments by or on account of any obligation of the Company or any of its Subsidiaries under the Notes, the Securities Purchase Agreement or any Security Document shall be made without any set-off, counterclaim or deduction and free and clear of and without

 

19


deduction for any Indemnified Taxes; provided that if the Company or any of its Subsidiaries shall be required to deduct any Indemnified Taxes from such payments, then (i) the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 21(a)), the Holder receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Company or such Subsidiary, as applicable, shall make such deductions and (iii) the Company or such Subsidiary shall pay the full amount deducted to the relevant Governmental Authority in accordance with applicable law; provided, further, that if the Company or any of its Subsidiaries is required to make any additional payment to the Holder under this Section 21(a), and if the Holder is entitled to a cash refund or credit against cash taxes payable which is both identifiable and quantifiable by the Holder as being attributable to the imposition of such Indemnified Taxes (a “ Tax Refund ”), and such Tax Refund may be obtained without increased liability or obligation to the Holder (including any obligation of the Holder to file tax returns in jurisdictions where it would not otherwise be obligated to file tax returns), then, upon the written request of the Company, the Holder shall apply for such Tax Refund and, to the extent such Tax Refund is received by the Holder, shall reimburse the Company or such Subsidiary for such amount as the Holder shall determine to be the proportion of the Tax Refund attributable to such additional payment as will leave the Holder after the reimbursement in the same position as it would have been if the additional payment had not been required; provided that, if any Tax Refund reimbursed by the Holder to the Company or such Subsidiary is subsequently disallowed, the Company shall repay the Holder such amount (together with interest and any applicable penalty payable by the Holder to the relevant taxing authority) promptly after the Holder notifies the Company of such disallowance. The Company agrees to reimburse the Holder for the Holder’s reasonable out-of-pocket expenses, if any, incurred in complying with any request hereunder and agrees that all costs incurred by the Holder in respect of this Section 21(a) may be deducted from the amount of any reimbursement to the Company or any of its Subsidiaries in respect of any Tax Refund pursuant to this Section 21(a).

 

(b) Indemnification by the Borrower . The Company shall indemnify the Holder, within ten (10) days after written demand therefor, for the full amount of any Indemnified Taxes paid by the Holder, on or with respect to any payment by or on account of any obligation of the Company or any of its Subsidiaries under the Notes, the Securities Purchase Agreement and the Security Documents (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 21) and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate of the Holder as to the amount of such payment or liability under this Section 21 shall be delivered to the Company and shall be conclusive absent demonstrable error.

 

(22) Foreign Currency Payments . The Company and each of its Subsidiaries will make payment relative to its indebtedness, liabilities and obligations owing under the Notes, the Securities Purchase Agreement and the Security Documents in Dollars. If the Company or any of its Subsidiaries makes payment relative to any such indebtedness, liabilities and obligations to the Holder in a currency other than Dollars (whether voluntarily or pursuant to an order or judgment of a court or tribunal of any jurisdiction), such payment will constitute a discharge of the liability of the Company or such Subsidiary hereunder or thereunder in respect of such indebtedness, liabilities and obligations only to the extent of the amount of Dollars which the Holder is able to purchase at New York, New York with the amount it receives on the date of receipt. If the amount of Dollars which the Holder is able to purchase is less than the amount of such currency originally due to it in respect to the relevant indebtedness, liabilities and obligations, the Company and each of its Subsidiaries will indemnify and save the Holder harmless from and against any loss or damage arising as a result of such deficiency. This indemnity will constitute an obligation separate and independent from the other obligations contained in the Notes, the Securities Purchase Agreement and the Security Documents, will give rise to a separate and independent cause of action, will apply irrespective of any indulgence granted by the Holder and will continue in full force and effect notwithstanding any judgment or order in respect of any amount due hereunder or under any judgment or order.

 

(23) Waiver of Notice . To the extent permitted by law, the Company hereby waives demand, notice, protest and all other demands and notices in connection with the delivery, acceptance, performance, default or enforcement of this Note, the Security Documents and the Securities Purchase Agreement.

 

(24) Governing Law . This Note shall be construed and enforced in accordance with, and all questions concerning the construction, validity, interpretation and performance of this Note shall be governed by,

 

20


the internal laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other country or jurisdiction) that would cause the application of the laws of any jurisdiction or country other than the State of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, borough of Manhattan, for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof to such party at the address for such notices to it under this Note and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS NOTE OR ANY TRANSACTION CONTEMPLATED HEREBY.

 

(25) Effect of Redemption; No Prepayment . Upon payment of the applicable Holder’s Redemption Amount, the Change of Control Redemption Price, or the Company Alternative Redemption Price each in accordance with the terms hereof with respect to any portion of the Principal of this Note, such portion of the Principal of this Note shall be deemed paid in full and shall no longer be deemed outstanding for any purpose. Except as specifically set forth in this Note, the Company does not have any right, option or obligation to pay any portion of the Principal at any time prior to the Maturity Date.

 

(26) Payment Set Aside . To the extent that the Company or any of its Subsidiaries makes a payment or payments to the Holder hereunder or the Holder enforces or exercises its rights hereunder, and such payment or payments or the proceeds of such enforcement or exercise or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from, disgorged by or are required to be refunded, repaid or otherwise restored to the Company or such Subsidiary, by a trustee, receiver or any other person under any law (including any Bankruptcy Law, U.S. state or federal law, Canadian federal, provincial or territorial law, or common law or equitable cause of action), then to the extent of any such restoration the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such enforcement or setoff had not occurred.

 

(27) Interpretative Matters . Unless the context otherwise requires, (a) all references to Sections, Schedules or Exhibits are to Sections, Schedules or Exhibits contained in or attached to this Note, (b) words in the singular or plural include the singular and plural and pronouns stated in either the masculine, the feminine or neuter gender shall include the masculine, feminine and neuter, and (c) the use of the word “including” in this Note shall be by way of example rather than limitation.

 

* * * * * *

 

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IN WITNESS WHEREOF, the Company has caused this Note to be signed by                      , its                                  , as of the          day of                  200      .

 

GASTAR EXPLORATION LTD.
By:    

Name:

  J. Russell Porter

Title:

  President and Chief Executive Officer

EXHIBIT 4.9

 

REGISTRATION RIGHTS AGREEMENT

 

REGISTRATION RIGHTS AGREEMENT ( this “Agreement”), dated as of June 16, 2005, by and among Gastar Exploration Ltd., an Alberta corporation, with headquarters located at 2480 West Campus Drive, Building C, Mt. Pleasant, Michigan 48858 (the “Company”), and the undersigned buyers (each, a “ Buyer ” and collectively, the “Buyers”).

 

WHEREAS:

 

A. In connection with the Securities Purchase Agreement by and among the parties hereto of even date herewith (the “ Securities Purchase Agreement ”), the Company has agreed, upon the terms and subject to the conditions of the Securities Purchase Agreement, to sell at the Initial Closing to the Buyers (1) the Initial Notes (as defined in the Securities Purchase Agreement), such Initial Notes to be issued to the Buyers on the Initial Closing Date (as defined in the Securities Purchase Agreement), and (ii) the Initial Shares (as defined in the Securities Purchase Agreement”), such Initial Shares to be issued to the Buyers on the Initial Closing Date and the other times set forth in the Securities Purchase Agreement.

 

B. In connection with the Securities Purchase Agreement, the Company has the option, upon the terms and subject to the conditions of the Securities Purchase Agreement, to sell to the Buyers, from time to time during the Additional Note Issuance Period (as defined in the Securities Purchase Agreement) (i) Additional Notes (as defined in the Securities Purchase Agreement), such Additional Notes to be issued on the applicable Additional Closing Dates (as defined in the Securities Purchase Agreement), and (ii) Additional Shares (as defined in the Securities Purchase Agreement), such Additional Shares to be issued at the times set forth in the Securities Purchase Agreement (such Additional Shares, together with the Initial Shares, being collectively referred to herein as the “ Shares ”).

 

C. To induce the Buyers to execute and deliver the Securities Purchase Agreement, the Company has agreed to provide certain registration rights under the Securities Act of 1933, as amended, and the rules and regulations thereunder, or any similar successor statute (collectively, the “ 1933 Act ”), and applicable state securities laws.

 

NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and each of the Buyers hereby agree as follows:

 

1. DEFINITIONS .

 

As used in this Agreement, the following terms shall have the following meanings:

 

a. “ Additional Registrable Securities ” means, with respect to each Delivery Date (as defined in the Securities Purchase Agreement), other than the Initial Closing Date, (i) the Shares required to be issued on such Delivery Date pursuant to the Securities Purchase Agreement and any Shares that, but for the limitation on issuance of Common Shares set forth in Section 1 (e)(iv) of the Securities Purchase Agreement, would have been required to be issued on such Delivery Date, and (ii) any shares in capital issued or issuable with respect to such Shares as a result of any share split, share dividend, recapitalization, exchange or similar event or otherwise, without regard to any limitations on issuances of the Initial Shares or the Additional Shares.

 

b. “ Additional Registration Statement ” means a registration statement or registration statements of the Company filed under the 1933 Act covering Additional Registrable Securities.

 

c. “ Canadian Securities Laws ” means the securities legislation and regulations of, and the instruments, policies, rules, orders, codes, notices and interpretation notes, of the securities regulation authorities (including the Toronto Stock Exchange) of any applicable jurisdiction, or jurisdictions collectively, in Canada.

 

d. “ Common Shares ” means the common shares of the Company.

 

e. “ Effectiveness Deadline ” means the Initial Effectiveness Deadline or an Additional Effectiveness Deadline (each as defined below), as applicable.


f. “ Excluded Taxes ” means, with respect to any Investor, or any other recipient of payment to be made by or on account of any obligations of the Company under this Agreement, income or franchise taxes imposed on (or measured by) its net income by the United States of America or such other jurisdiction under the laws of which such recipient is organized or its principal offices are located.

 

g. “ Filing Deadline ” means the Initial Filing Deadline or an Additional Filing Deadline (each as defined below), as applicable.

 

h. “ Governmental Authority ” means the government of the United States of America, the government of Canada or the government of any other nation, or any political subdivision thereof, whether state, provincial or local, or any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administration powers or functions of or pertaining to government over the Company or any of its Subsidiaries, or any of their respective properties, assets or undertakings.

 

i. “ Indemnified Taxes ” means Taxes (as defined in the Notes) other than Excluded Taxes.

 

j. “ Initial Registrable Securities ” means (i) the Shares required to be issued on the Initial Closing Date and (ii) any shares in capital issued or issuable with respect to such Initial Shares as a result of any share split, share dividend, recapitalization, exchange or similar event or otherwise, without regard to any limitations on issuances of the Initial Shares.

 

k. “ Initial Registration Statement ” means a registration statement or registration statements of the Company filed under the 1933 Act covering the Initial Registrable Securities.

 

l. “ Investor ” means a Buyer, any transferee or assignee thereof to whom a Buyer assigns its rights under this Agreement and who agrees to become bound by the provisions of this Agreement in accordance with Section 9 and any transferee or assignee thereof to whom a transferee or assignee assigns its rights under this Agreement and who agrees to become bound by the provisions of this Agreement in accordance with Section 9.

 

m. “ Person ” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a governmental or any department or agency thereof.

 

n. “ Register ,” “ registered ,” and “ registration ” refer to a registration effected by preparing and filing one or more Registration Statements (as defined below) in compliance with the 1933 Act and pursuant to Rule 415 under the 1933 Act or any successor rule providing for offering securities on a continuous or delayed basis (“ Rule 415 ”), and the declaration or ordering of effectiveness of such Registration Statement(s) by the United States Securities and Exchange Commission (the “SEC”).

 

o. “ Registrable Securities ” means the Initial Registrable Securities and the Additional Registrable Securities with respect to any Delivery Dates; provided, however, that any such Registrable Securities shall cease to be Registrable Securities when (1) a Registration Statement with respect to the sale of such securities becomes effective under the 1933 Act and such securities are disposed of in accordance with such Registration Statement, (ii) such securities are sold in accordance with Rule 144 (as defined in Section 8), or (iii) such securities become transferable without any restrictions in accordance with Rule 144(k) (or any successor provision).

 

p. “ Registration Statement ” means the Initial Registration Statement or any Additional Registration Statement.

 

q. “ Trading Day ” means any day on which the Common Shares are traded on the principal securities exchange or securities market in the United States or Canada on which the Common Shares are then traded; provided that “Trading Day” shall not include any day on which the Common Shares are scheduled to trade, or actually trade on such exchange or market, for less than 4.5 hours.

 

Capitalized terms used herein and not otherwise defined herein shall have the respective meanings set forth in the Securities Purchase Agreement.

 

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2. REGISTRATION .

 

a. Mandatory Registration .

 

(i) Initial Mandatory Registration . The Company shall prepare and, as soon as practicable but in no event later than 90 days after the Initial Closing Date (the “ Initial Filing Deadline ”), file with the SEC the Initial Registration Statement on Form S-I (or on Form S-3, if Form S-3 is then available for the registration of the resale of the Registrable Securities hereunder), covering the resale by each of the Investors of all of the Initial Registrable Securities issued or issuable to such Investor. The Company shall use its reasonable best efforts to have the Initial Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the date that is 180 days after the Initial Closing Date (the “ Initial Effectiveness Deadline ”).

 

(ii) Additional Mandatory Registration . The Company shall prepare and, as soon as practicable but in no event later than 30 days after each Delivery Date other than the Initial Closing Date (each, an “ Additional Filing Deadline ”), file with the SEC an Additional Registration Statement on Form S-I (or on Form S-3, if Form S-3 is then available for the registration of the resale of the Registrable Securities hereunder), covering the resale by each of the Investors of all of the Additional Registrable Securities issued or issuable to such Investor with respect to such Delivery Date. The Company shall use its reasonable best efforts to have the Additional Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the date which is 120 days after such Delivery Date (the “ Additional Effectiveness Deadline ”).

 

b. Holdings of Registrable Securities . For purposes hereof, the number of Registrable Securities held by, or issuable to, an Investor includes all Registrable Securities issuable to such Investor, without regard to any limitation on the issuance of the Shares.

 

c. Legal Counsel . Subject to Section 5 hereof, the Buyers holding securities representing at least two-thirds (2/3) of the Registrable Securities shall have the right to select one legal counsel to review, on behalf of the Buyers, any registration pursuant to this Section 2 (“Legal Counsel”), which shall be Katten Muchin Rosenman LLP, or such other counsel as thereafter designated in writing to the Company by the holders of at least two-thirds (2/3) of the Registrable Securities. The Company shall reasonably cooperate with Legal Counsel in performing the Company’s obligations under this Agreement.

 

d. Ineligibility for Form S-3 . In the event that Form S-3 is not available for the registration of the resale of Registrable Securities hereunder, the Company shall undertake to register the Registrable Securities on Form S-3 as soon as such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the SEC.

 

e. Effect of Failure to File and Obtain and Maintain Effectiveness of Registration Statement .

 

(i) If (A) the Initial Registration Statement is not filed with the SEC on or before the Initial Filing Deadline, (B) the Initial Registration Statement is not declared effective by the SEC on or before the Initial Effectiveness Deadline or (C) on any day after the Initial Registration Statement has been declared effective by the SEC sales of all the Initial Registrable Securities required to be included on the Initial Registration Statement cannot be made (other than during a Current Report Update Grace Period (as defined in Section 3(b)) or a Post-Effectiveness Grace Period (as defined in Section 3(t)) that is an Allowable Grace Period (as defined in Section 3(t)) pursuant to the Initial Registration Statement (including because of a failure to keep the Registration Statement effective, to disclose such information as is necessary for sales to be made pursuant to the Registration Statement or to register sufficient Initial Registrable Securities), then in each case, as partial relief for the damages to any holder of the Initial Registrable Securities by reason of any such delay in or reduction of its ability to sell the Initial Registrable Securities (which remedy shall not be exclusive of any other remedies available at law or in equity), the Company shall pay to such holder an amount in cash equal to the product of (X) the product of (I) the total number of Initial Registrable Securities held by such holder, multiplied by (II) the arithmetic average of the Weighted Average Price of the Common Shares on each of the five (5) consecutive Trading Days immediately preceding the Initial Closing Date (subject to appropriate adjustment for any share dividend, share split, share combination or other similar transaction occurring during such period), multiplied by (Y) the product of 0.000333 multiplied by, as the case may be, (I) in the event of an occurrence described in clause (A) of this paragraph 2(e)(i), the number of days after the applicable Filing Deadline that the Initial Registration Statement is not filed with the SEC, or (II) in the event of an occurrence described in clause (B) of this paragraph 2(e)(i), the number of days after the Initial Effectiveness Deadline that the Initial Registration Statement is not initially declared effective by the SEC (without duplication of days accounted for in the immediately preceding clause (I)), or (III) in the event of an

 

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occurrence described in clause (C) of this paragraph 2(e)(i), the number of days after the Initial Registration Statement has been declared effective by the SEC that the Initial Registration Statement is not available (other than during a Current Report Update Grace Period or a Post-Effectiveness Grace Period that is an Allowable Grace Period) for the sale of at least all the Initial Registrable Securities required to be included and maintained on the Registration Statement; provided, however, that the Company shall not be obligated to pay any amounts to such holder pursuant to this paragraph 2(e)(i) in respect of any days after the first date on which such holder may sell all of the Initial Registrable Securities held by such holder without restriction pursuant to Rule 144(k) (or successor thereto) promulgated under the 1933 Act.

 

(ii) If (A) an Additional Registration Statement covering any Additional Registrable Securities and required to be filed by the Company pursuant to Section 2(a)(ii) of this Agreement is not filed with the SEC on or before the applicable Additional Filing Deadline, (B) an Additional Registration Statement covering any Additional Registrable Securities and required to be filed by the Company pursuant to Section 2(a)(ii) is not declared effective by the SEC on or before the applicable Additional Effectiveness Deadline or (C) on any day after such Additional Registration Statement has been declared effective by the SEC sales of all the Additional Registrable Securities required to be included on such Registration Statement cannot be made (other than during a Current Report Update Grace Period or a Post-Effectiveness Grace Period that is an Allowable Grace Period) pursuant to such Registration Statement (including because of a failure to keep the Registration Statement effective, to disclose such information as is necessary for sales to be made pursuant to the Registration Statement or to register sufficient Additional Registrable Securities), then in each case, as partial relief for the damages to any holder of such Additional Registrable Securities by reason of any such delay in or reduction of its ability to sell such Additional Registrable Securities (which remedy shall not be exclusive of any other remedies available at law or in equity), the Company shall pay to such holder an amount in cash equal to the product (calculated separately for Additional Registrable Securities with respect to each Delivery Date) of (X) the product of (I) the total number of such Additional Registrable Securities held by such holder, multiplied by (11) the arithmetic average of the Weighted Average Price of the Common Shares on each of the five (5) consecutive Trading Days immediately preceding the Delivery Date on which such Additional Registrable Securities were issuable (subject to appropriate adjustment for any share dividend, share split, share combination or other similar transaction occurring during such period), multiplied by (Y) the product of 0.000333 multiplied by, as the case may be, (I) in the event of an occurrence described in clause (A) of this paragraph 2(e)(ii), the number of days after the applicable Additional Filing Deadline that such Additional Registration Statement is not filed with the SEC, or (II) in the event of an occurrence described in clause (B) of this paragraph 2(e)(ii), the number of days after the Additional Effectiveness Deadline that such Additional Registration Statement is not initially declared effective by the SEC (without duplication of days accounted for in the immediately preceding clause (I)), or (III) in the event of an occurrence described in clause (C) of this paragraph 2(e)(ii), the number of days after such Additional Registration Statement has been declared effective by the SEC that such Additional Registration Statement is not available (other than during a Current Report Update Grace Period or a Post-Effectiveness Grace Period that is an Allowable Grace Period) for the sale of at least all the Additional Registrable Securities required to be included and maintained on the Additional Registration Statement; provided, however, that the Company shall not be obligated to pay any amounts to such holder pursuant to this paragraph 2(e)(ii) in respect of any days after the first date on which such holder may sell all of such Additional Registrable Securities held by such holder without restriction pursuant to Rule 144(k) (or successor thereto) promulgated under the 1933 Act.

 

(iii) The payments to which a holder shall be entitled pursuant to Sections 2(e)(i) and 2(e)(ii) are referred to herein as “Registration Delay Payments.” Registration Delay Payments shall be made on the earlier of (A) the last day of the calendar month during which such Registration Delay Payments are incurred and (B) the third Business Day after the event or failure giving rise to the Registration Delay Payments is cured.

 

(iv) In the event that a Registration Statement covering any Registrable Securities and required to be filed by the Company pursuant to Section 2(a)(i) or 2(a)(ii) of this Agreement is not declared effective by the SEC on or before the applicable Effectiveness Deadline, then, in addition to the applicable Registration Delay Payments and as additional partial relief for the damages to any holder of such Registrable Securities by reason of any such delay in its ability to sell such Registrable Securities (which remedy shall not be exclusive of any other remedies available at law or in equity), the Company shall, no later than the third Business Day after the applicable Registration Statement is declared effective by the SEC, pay such holder an amount in cash equal to the amount (if greater than $0) equal to the product of (A) the total number of such Registrable Securities held by such holder, multiplied by (B) the result of (I) the arithmetic average of the Weighted Average Price of the Common Shares on each of the five (5) consecutive Trading Days immediately preceding the applicable Effectiveness Deadline (subject to appropriate adjustment for any share dividend, share split, share combination or other similar transaction occurring during such period), minus (II) the arithmetic average of the Weighted Average Price of the Common Shares on each of the five (5) consecutive Trading Days immediately preceding the date on which such Registration Statement is declared effective by the SEC. The payments to which a holder shall be entitled pursuant to this Section 2(e)(iii) are referred to herein as “ Additional Registration Delay Payments .”

 

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(v) In the event the Company fails to make Registration Delay Payments or Additional Registration Delay Payments in a timely manner, such Registration Delay Payments or Additional Registration Delay Payments, as the case may be, shall bear interest, in each case until paid in full, at a rate equal to the lesser of (A) 1.5% per month (equivalent to a per annum rate of 18.0%), prorated for partial months, and (B) the highest lawful interest rate.

 

3. RELATED OBLIGATIONS .

 

At such time as the Company is obligated, or elects, to file a Registration Statement with the SEC pursuant to Section 2(a), the Company will use its reasonable best efforts to effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, pursuant thereto, the Company shall have the following obligations:

 

a. The Company shall promptly prepare and file with the SEC a Registration Statement with respect to the applicable Registrable Securities (but in no event later than the applicable Filing Deadline) and use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable after such filing (but in no event later than the applicable Effectiveness Deadline). The Company shall keep each Registration Statement effective pursuant to Rule 415 at all times until the earlier of (i) the date as of which the Investors may sell all of the Registrable Securities covered by such Registration Statement without restriction pursuant to Rule 144(k) (or successor thereto) promulgated under the 1933 Act or (ii) the date on which the Investors shall have sold all the Registrable Securities covered by such Registration Statement to Persons that are not Investors (the “ Registration Period”). Such Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. The term “reasonable best efforts” shall mean, among other things, that the Company shall submit to the SEC, within three (3) Business Days after the Company learns that no review of a particular Registration Statement will be made by the staff of the SEC or that the staff has no further comments on the Registration Statement, as the case may be, a request for acceleration of effectiveness of such Registration Statement to a time and date not later than 48 hours after the submission of such request; provided, however, that, subject to Section 3(t), the Company may delay (an “ Effectiveness Request Grace Period”) such submission of a request for acceleration of effectiveness of such Registration Statement if, in the good faith opinion of the Company and its counsel, such Effectiveness Request Grace Period is necessary to avoid disclosure of material non-public information concerning the Company the disclosure of which at the time is not, in the good faith opinion of the Board of Directors of the Company and its counsel, in the best interest of the Company and, in the opinion of counsel to the Company, otherwise required; provided that the Company shall (i) promptly notify the Investors in writing of the existence of material non-public information giving rise to such an Effectiveness Request Grace Period (provided that in each notice the Company shall not disclose the content of such material non-public information to the Investors), (ii) submit such request for acceleration of effectiveness as soon as, in the good faith opinion of Company and its counsel, such Effectiveness Request Grace Period is no longer necessary (subject to Section 3(t)), and (iii) notify the Investors in writing of the date on which the Effectiveness Request Grace Period ends; and provided, further, that the foregoing proviso shall not in any way delay or otherwise affect the applicable Effectiveness Deadline.

 

b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in such Registration Statement. In the case of amendments and supplements to a Registration Statement that are required to be filed pursuant to this Agreement (including pursuant to this Section 3(b)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the Securities Exchange Act of 1934, as amended (the “1934 Act”), the Company shall have incorporated such report by reference into the Registration Statement, if applicable and permitted by law, or shall file such amendments or supplements with the SEC on the same day; provided, however, that in the case of a Form 10-Q or Form 10-K, the Company may delay the filing of any applicable supplement or amendment by up to ten (10) days after the date of filing of the Form 10-Q or Form 10-K, as the case may be, subject to Section 3(t) (any such delay, a “ Current Report Update Grace Period ”).

 

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c. The Company shall (A) permit Legal Counsel to review and comment upon (i) the Initial Registration Statement at least five (5) Business Days prior to its filing with the SEC. (ii) any Additional Registration Statement at least three (3) Business Days prior to its filing with the SEC and (iii) all other Registration Statements and all amendments and supplements to all Registration Statements (except for Annual Reports on Form 10-K, Quarterly Reports on Form l0-Q and Current Reports on Form 8-K and any similar or successor reports) within a reasonable number of days prior to their filing with the SEC, and (B) not file any document, registration statement, amendment or supplement described in the foregoing clause (A) in a form to which Legal Counsel reasonably objects. The Company shall not submit a request for acceleration of the effectiveness of a Registration Statement or any amendment or supplement thereto without providing prior notice thereof to Legal Counsel and each Investor. The Company shall furnish to Legal Counsel, without charge, (i) promptly after the same is prepared and filed with the SEC, one copy of any Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference that have not been filed, or are not immediately available electronically, via EDGAR, and all exhibits, and (ii) upon the effectiveness of any Registration Statement, one copy of the prospectus included in such Registration Statement and all amendments and supplements thereto. The Company shall reasonably cooperate with Legal Counsel in performing the Company’s obligations pursuant to this Section 3.

 

d. The Company shall furnish to each Investor whose Registrable Securities are included in any Registration Statement, without charge, (i) promptly after the same is prepared and filed with the SEC, at least one copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference that have not been filed, or are not immediately available electronically, via EDGAR, all exhibits and each preliminary prospectus, (ii) upon the effectiveness of any Registration Statement, ten (10) copies of the prospectus included in such Registration Statement and all amendments and supplements thereto (or such other number of copies as such Investor may reasonably request) and (iii) such other documents, including copies of any preliminary or final prospectus, as such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investor.

 

e. The Company shall use its reasonable best efforts to (i) register and qualify, unless an exemption from registration and qualification applies, the resale by the Investors of the Registrable Securities covered by a Registration Statement under the securities or “blue sky” laws of all the states of the United States, (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period, (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(e) or (y) subject itself to general taxation in any such jurisdiction. The Company shall promptly notify Legal Counsel and each Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose.

 

f. The Company shall notify Legal Counsel and each Investor in writing of the happening of any event, as promptly as practicable after becoming aware of such event, as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that in no event shall such notice contain any material, nonpublic information), and promptly prepare a supplement or amendment to such Registration Statement to correct such untrue statement or omission, and deliver ten (10) copies of such supplement or amendment to Legal Counsel and each Investor (or such other number of copies as Legal Counsel or such Investor may reasonably request). The Company shall also promptly notify Legal Counsel and each Investor in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to Legal Counsel and each Investor by facsimile on the same day of such effectiveness and by overnight mail), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company’s reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.

 

g. The Company shall use its reasonable best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or the suspension of the qualification of any of the Registrable

 

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Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension as soon as practicable and to notify Legal Counsel and each Investor who holds Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.

 

h. At the reasonable request (in the context of the securities laws) of any Investor, the Company shall furnish to such Investor, on the date of the effectiveness of the Registration Statement and thereafter from time to time on such dates as an Investor may reasonably request (i) a letter, dated such date, from the Company’s independent certified public accountants in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to the Investors, and (ii) an opinion, dated as of such date, of counsel representing the Company for purposes of such Registration Statement, in form, scope and substance as is customarily given in an underwritten public offering, addressed to the Investors, provided that such Investor shall reimburse the Company for its out-of-pocket expenses incurred in connection with the furnishing of any such letter and opinion.

 

i. At the reasonable request (in the context of the securities laws) of any Investor, the Company shall upon receipt of a waiver of such investor’s non-public information requirements make available for inspection during regular business hours by (i) any Investor, (ii) Legal Counsel and (iii) one firm of accountants or other agents retained by the Investors (collectively, the “ Inspectors ”), all pertinent financial and other records, and pertinent corporate documents and properties of the Company (collectively, the “ Records ”), as shall be reasonably deemed necessary by each Inspector, and cause the Company’s officers, directors and employees to supply all information that any Inspector may reasonably request; provided, however, that each Inspector shall agree to hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any Record or other information that the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, unless (a) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in any Registration Statement or is otherwise required under the 1933 Act, (b) the release of such Records is ordered pursuant to a final, non-appealable subpoena or order from a court or government body of competent jurisdiction, or (c) the information in such Records has been made generally available to the public other than by disclosure in violation of this or any other agreement of which the Inspector has knowledge. Each Investor agrees that it shall, upon learning that disclosure of such Records is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to the Company and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, the Records deemed confidential. Each Inspector that exercises its rights under this Section 3(i) shall be obligated to execute a non-disclosure agreement containing such reasonable terms as the Company may request. The fees and expenses of the Inspectors shall be borne by the applicable Investor.

 

j. The Company shall hold in confidence and not make any disclosure of information concerning an Investor provided to the Company unless (i) disclosure of such information is necessary to comply with federal or state securities laws, (ii) the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement, (iii) the release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction, or (iv) such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor and allow such Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.

 

k. The Company shall use its reasonable best efforts to (i) maintain the listing of the Common Shares on the Toronto Stock Exchange or, if listed on a U.S. national securities exchange, the NASDAQ National Market or the NASDAQ SmailCap Market, on such exchange or market, (ii) cause all the Registrable Securities covered by a Registration Statement to be listed (or quoted, as applicable) on each United States or Canadian securities exchange or trading market on which securities of the same class or series issued by the Company are then listed or traded, and (iii) without limiting the generality of the foregoing, to arrange for at least three market makers to register with the National Association of Securities Dealers, Inc. (“NASD”) as such with respect to such Registrable Securities. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(k).

 

l. The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investors may reasonably request and registered in such names as the Investors may request.

 

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m. The Company shall provide a transfer agent and registrar of all such Registrable Securities not later than the effective date of the applicable Registration Statement.

 

n. If requested by an Investor, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as an Investor requests to be included therein relating to the sale and distribution of Registrable Securities, including information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by an Investor of such Registrable Securities.

 

o. The Company shall use its reasonable best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities in the United States and Canada as may be necessary to consummate the disposition of such Registrable Securities.

 

p. The Company shall make generally available to its security holders, as soon as practical, an earnings statement (in form complying with the provisions of Rule 158 under the 1933 Act) covering a twelve-month period beginning not later than the first day of the Company’s fiscal quarter next following the effective date of a Registration Statement

 

q. The Company shall otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder.

 

r. Within two (2) Business Days after a Registration Statement that covers applicable Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel for the Company to deliver, to the transfer agent for such Registrable Securities (with copies to the Investors whose Registrable Securities are included in such Registration Statement) confirmation that such Registration Statement has been declared effective by the SEC in substantially the form attached hereto as Exhibit A , provided that if the Company changes its transfer agent, it shall immediately deliver any previously delivered notices under this Section 3(r) and any subsequent notices to such new transfer agent.

 

s. The Company shall make such filings with the NASD (including providing all required information and paying required fees thereto) as and when requested by an Investor and make all other filings and take all other actions reasonably necessary to expedite and facilitate disposition by Investors of Registrable Securities pursuant to a Registration Statement.

 

t. Notwithstanding anything to the contrary in Section 3(f), at any time after the applicable Registration Statement has been declared effective by the SEC, the Company may delay the disclosure of material non-public information concerning the Company the disclosure of which at the time is not, in the good faith opinion of the Board of Directors of the Company and its counsel, in the best interest of the Company and, in the opinion of counsel to the Company, otherwise required (a “Post-Effectiveness Grace Period ,” and along with each Effectiveness Request Grace Period and Current Report Update Grace Period, each a “ Grace Period ”); provided that the Company shall promptly (i) notify the Investors in writing of the existence of material non-public information giving rise to a Post-Effectiveness Grace Period (provided that in each notice the Company shall not disclose the content of such material nonpublic information to the Investors) and the date on which the Post-Effectiveness Grace Period will begin, and (ii) notify the Investors in writing of the date on which the Post-Effectiveness Grace Period ends. Notwithstanding anything to the contrary contained herein, no Grace Period shall exceed 30 consecutive days, any Grace Periods during any 365-day period shall not exceed an aggregate of 60 days, and the first day of any Grace Period must be at least two (2) Trading Days after the last day of any prior Grace Period (a Grace Period that satisfies all of the requirements of Sections 3(a) and 3(b) arid this Section 3(t), as applicable, being referred to as an “Allowable Grace Period ”). For purposes of determining the length of a Post-Effectiveness Grace Period under this Section 3(t), the Post-Effectiveness Grace Period shall begin on and include the date the holders receive the notice referred to in clause (i) and shall end on and include the later of the date the holders receive the notice referred to in clause (ii) and the date referred to in such notice. The provisions of Section 3(g) hereof shall not be applicable during the period of any Allowable Grace Period. Upon expiration of a Post-Effectiveness

 

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Grace Period, the Company shall again be bound by the first sentence of Section 3(f) with respect to the information giving rise thereto unless such material non-public information is no longer applicable. Any payment of damages by the Company shall be free and clear of any withholding taxes.

 

4. OBLIGATIONS OF THE INVESTORS .

 

a. At least six (6) Business Days prior to the first anticipated filing date of a Registration Statement and at least five (5) Business Days prior to the filing of any amendment or supplement to a Registration Statement, the Company shall notify each Investor in writing of the information, if any, the Company requires from each such Investor if such Investor elects to have any of such Investor’s Registrable Securities included in such Registration Statement or, with respect to an amendment or a supplement, if such Investor’s Registrable Securities are included in such Registration Statement (each an “Information Request ”). Provided that the Company shall have complied with its obligations set forth in the preceding sentence, it shall be a condition precedent to the obligations of the Company to complete the registration pursuant to this Agreement with respect to the Registrable Securities of a particular Investor that such Investor shall furnish to the Company, in response to an Information Request, such information regarding itself; the Registrable Securities held by it and the intended method of disposition of the Registrable Securities held by it as shall be reasonably required to effect the registration of such Registrable Securities and shall execute such documents in connection with such registration as the Company may reasonably request.

 

b. Each Investor, by such Investor’s acceptance of the Registrable Securities, agrees to cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing of any Registration Statement hereunder, unless such Investor has notified the Company in writing of such Investor’s election to exclude all of such Investor’s Registrable Securities from such Registration Statement.

 

c. Each Investor agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3(g) or the first sentence of 3(1) or written notice from the Company of a Grace Period, such Investor will immediately discontinue disposition of Registrable Securities pursuant to any Registration Statement(s) covering such Registrable Securities until such Investor’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3(g) or the first sentence of 3(f) or receipt of notice that no supplement or amendment is required or that the Grace Period has ended. Notwithstanding anything to the contrary, the Company shall cause its transfer agent to deliver unlegended Common Shares to a transferee of an Investor in connection with any sale of Registrable Securities pursuant to a Registration Statement covering such Registrable Securities with respect to which an Investor has entered into a contract for sale prior to the Investor’s receipt of a notice from the Company of the happening of any event of the kind described in Section 3(g) or the first sentence of 3(f) and for which the Investor has not yet settled.

 

5. EXPENSES OF REGISTRATION .

 

All reasonable expenses, other than underwriting discounts and commissions, incurred in connection with registrations, filings or qualifications pursuant to Sections 2 and 3, including all registration, listing and qualifications fees, printers and accounting fees, and fees and disbursements of counsel for the Company shall be paid by the Company, except as provided in Section 3(h). The Company shall also reimburse the Investors for the reasonable fees and disbursements of Legal Counsel in connection with registration, filing or qualification pursuant to Sections 2 and 3 of this Agreement, up to a maximum of $10,000 per Registration Statement.

 

6. INDEMNIFICATION .

 

In the event any Registrable Securities are included in a Registration Statement under this Agreement:

 

a. To the fullest extent permitted by law, the Company will, and hereby does, indemnify, hold harmless and defend each Investor, the directors, officers, partners, employees, agents, representatives of, and each Person, if any, who controls any Investor within the meaning of the 1933 Act, the 1934 Act or the Canadian Securities Laws (each, an “ Indemnified Person ”), against any losses, claims, damages, liabilities, judgments, fines, penalties, charges, costs, reasonable attorneys’ fees, amounts paid in settlement or expenses, joint or several (collectively, “ Claims ”) incurred in investigating, preparing or defending any action, claim, suit, inquiry, proceeding, investigation or appeal taken from the foregoing by or before any court or governmental, administrative or other regulatory agency or body (including the SEC or any state or provincial securities commission authority or self-regulatory organization, in the United States, Canada or anywhere else in the world), whether pending or threatened, whether or not an indemnified party is or may be a party

 

9


thereto (“ Indemnified Damages ”), to which any of them may become subject insofar as such Claims (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon: (i) any untrue statement or alleged untrue statement of a material fact in a Registration Statement or any post-effective amendment thereto or in any filing made in connection with the qualification of the offering under the securities or other “blue sky” laws of any jurisdiction in which Registrable Securities are offered (“ Blue Sky Filing ”), or the omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus if used prior to the effective date of such Registration Statement, or contained in the final prospectus (as amended or supplemented, if the Company files any amendment thereof or supplement thereto with the SEC) or the omission or alleged omission to state therein any material fact necessary to make the statements made therein, in light of the circumstances under which the statements therein were made, not misleading, (iii) any violation or alleged violation by the Company of the 1933 Act, the 1934 Act, any of the Canadian Securities Laws, any other law, including any state, provincial or foreign securities law, or any rule or regulation thereunder relating to the offer or sale of the Registrable Securities pursuant to a Registration Statement or (iv) any material violation of this Agreement by the Company (the matters in the foregoing clauses (i) through (iv) being, collectively, “ Violations ”). Subject to Section 6(c), the Company shall reimburse the Indemnified Persons, promptly as such expenses are incurred and are due and payable, for any legal fees or other reasonable expenses incurred by them in connection with investigating or defending any such Claim. Notwithstanding anything to the contrary contained herein, the indemnification agreement contained in this Section 6(a): (i) shall not apply to a Claim by an Indemnified Person arising out of or based upon a Violation that occurs in reliance upon and in conformity with information furnished in writing to the Company by such Indemnified Person for such Indemnified Person expressly for use in connection with the preparation of the Registration Statement or any such amendment thereof or supplement thereto, if such prospectus was timely made available by the Company pursuant to Section 3(d); (ii) with respect to any preliminary prospectus, shall not inure to the benefit of any such person from whom the person asserting any such Claim purchased the Registrable Securities that are the subject thereof (or to the benefit of any person controlling such person) if the untrue statement or omission of material fact contained in the preliminary prospectus was corrected in the prospectus, as then amended or supplemented, if such prospectus was timely made available by the Company pursuant to Section 3(d), and the Indemnified Person was promptly advised in writing not to use the incorrect preliminary prospectus prior to the use giving rise to a violation and such Indemnified Person, notwithstanding such advice, used it; (iii) shall not be available to the extent such Claim is based on a failure of the Investor to deliver or to cause to be delivered the prospectus made available by the Company, if such prospectus was timely made available by the Company pursuant to Section 3(d); and (iv) shall not apply to amounts paid in settlement of any Claim if such settlement is effected without the prior written consent of the Company, which consent shall not be unreasonably withheld. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Indemnified Person and shall survive the transfer of the Registrable Securities by the Investors pursuant to Section 9.

 

b. In connection with any Registration Statement in which an Investor is participating, each such Investor agrees to severally and not jointly indemnify, hold harmless and defend, to the same extent and in the same manner as is set forth in Section 6(a), the Company, each of its directors, each of its officers who signs the Registration Statement, and each Person, if any, who controls the Company within the meaning of the 1933 Act, the 1934 Act or the Canadian Securities Laws (each an “Indemnified Party”), against any Claim or Indemnified Damages to which any of them may become subject, under the 1933 Act, the 1934 Act, the Canadian Securities Laws or otherwise, insofar as such Claim or Indemnified Damages arise out of or are based upon any Violation, in each case to the extent, and only to the extent, that such Violation occurs in reliance upon and in conformity with written information furnished to the Company by such Investor expressly for use in connection with such Registration Statement; and, subject to Section 6(c), such Investor will reimburse any legal or other expenses reasonably incurred by an Indemnified Party in connection with investigating or defending any such Claim; provided, however, that the indemnity agreement contained in this Section 6(b) and the agreement with respect to contribution contained in Section 7 shall not apply to amounts paid in settlement of any Claim if such settlement is effected without the prior written consent of such Investor, which consent shall not be unreasonably withheld; provided, further, however, that the aggregate liability of the Investor in connection with any Violation shall not exceed the net proceeds to such Investor as a result of the sale of Registrable Securities pursuant to the Registration Statement giving rise to such Claim. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such Indemnified Party and shall survive the transfer of the Registrable Securities by the Investors pursuant to Section 9. Notwithstanding anything to the contrary contained herein, the indemnification agreement contained in this Section 6(b) with respect to any preliminary prospectus shall not inure to the benefit of any Indemnified Party if the untrue statement or omission of material fact contained in the preliminary prospectus was corrected on a timely basis in the prospectus, as then amended or supplemented.

 

10


c. Promptly after receipt by an Indemnified Person or Indemnified Party under this Section 6 of notice of the commencement of any action or proceeding (including any governmental action or proceeding) involving a Claim, such Indemnified Person or Indemnified Party shall, if a Claim in respect thereof is to be made against any indemnifying party under this Section 6, deliver to the indemnifying party a written notice of the commencement thereof, and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume control of the defense thereof with counsel mutually satisfactory to the indemnifying party and the Indemnified Person or the Indemnified Party, as the case may be. In any such proceeding, any Indemnified Person or Indemnified Party may retain its own counsel, but, except as provided in the following sentence, the fees and expenses of that counsel will be at the expense of that Indemnified Person or Indemnified Party, as the case may be, unless (i) the indemnifying party and the Indemnified Person or Indemnified Party, as applicable, shall have mutually agreed to the retention of that counsel, (ii) the indemnifying party does not assume the defense of such proceeding in a timely manner or (iii) in the reasonable opinion of counsel retained by the indemnifying party, the representation by such counsel for the Indemnified Person or Indemnified Party and the indemnifying party would be inappropriate due to actual or potential differing interests between such Indemnified Person or Indemnified Party and any other party represented by such counsel in such proceeding, in which case the Company shall pay reasonable fees for up to one separate legal counsel for the Investors, and such legal counsel shall be selected by the Investors holding at least two-thirds (2/3) in interest of the Registrable Securities included in the Registration Statement to which the Claim relates. The Indemnified Party or Indemnified Person shall cooperate fully with the indemnifying party in connection with any negotiation or defense of any such action or Claim by the indemnifying party and shall furnish to the indemnifying party all information reasonably available to the Indemnified Party or Indemnified Person which relates to such action or Claim. The indemnifying party shall keep the Indemnified Party or Indemnified Person fully apprised at all times as to the status of the defense or any settlement negotiations with respect thereto. No indemnifying party shall be liable for any settlement of any action, claim or proceeding effected without its prior written consent, provided, however, that the indemnifying party shall not unreasonably withhold, delay or condition its consent. No indemnifying party shall, without the prior written consent of the Indemnified Party or Indemnified Person, consent to entry of any judgment or enter into any settlement or other compromise with respect to any pending or threatened action or claim in respect of which indemnification or contribution may be or has been sought hereunder (whether or not the Indemnified Party or Indemnified Person is an actual or potential party to such action or claim), which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party or Indemnified Person of a release from all liability in respect to such Claim or litigation. Following indemnification as provided for hereunder, the indemnifying party shall be subrogated to all rights of the Indemnified Party or Indemnified Person with respect to all third parties, firms or corporations relating to the matter for which indemnification has been made. The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action shall not relieve such indemnifying party of any liability to the Indemnified Person or Indemnified Party under this Section 6, except to the extent that the indemnifying party is prejudiced in its ability to defend such action.

 

d. The indemnification required by this Section 6 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or Indemnified Damages are incurred.

 

e. The indemnity agreements contained herein shall be in addition to (i) any cause of action or similar right of the Indemnified Party or Indemnified Person against the indemnifying party or others, and (ii) any liabilities the indemnifying party may be subject to pursuant to the law.

 

7. CONTRIBUTION .

 

To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 6 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) in connection with such sale, shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited to an amount equal to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to the Registration Statement giving rise to such action or claim for indemnification less the amount of any damages that such seller has otherwise been required to pay in connection with such sale.

 

11


8. REPORTS UNDER THE 1934 ACT .

 

With a view to making available to the Investors the benefits of Rule 144 promulgated under the 1933 Act or any other similar rule or regulation of the SEC that may at any time permit the Investors to sell securities of the Company to the public without registration (“Rule 144”), after the Company first becomes subject to reporting obligations under the 1934 Act, the Company agrees to:

 

a. make and keep public information available, as those terms are understood and defined in Rule 144;

 

b. file with the SEC in a timely manner all Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on 8-K (other than Current Reports on Form 8-K that are required solely pursuant to Item 1.01, 1.02, 2.03, 2.04, 2.05, 2.06 or 4.02(a) of Form 8-K) and any similar or successor reports required of the Company under the 1934 Act so long as the Company remains subject to such requirements (it being understood that nothing herein shall limit the Company’s obligations under Section 4(c) of the Securities Purchase Agreement) and the filing of such reports and other documents is required for the applicable provisions of Rule 144 (provided, however, that this covenant shall not be deemed breached upon (i) the Company’s first late filing after the date hereof of an Annual Report on Form 10-K or Quarterly Report on Form 10-Q (a “ Periodic Report ”) and (ii) the Company’s first late filing after the date hereof of a Current Report on Form 8-K (other than a Current Report on Form 8-K that is required solely pursuant to Item 1.01, 1.02, 2.03, 2.04, 2.05, 2.06 or 4.02(a) of Form 8-K), so long as in either such case, such Periodic Report or Current Report on Form 8-K, as the case may be, is filed with the SEC no later than five (5) Business Days after the due date thereof); and

 

c. furnish to each Investor so long as such Investor owns Registrable Securities, promptly upon written request, (i) a written statement by the Company that it has complied with the reporting requirements of Rule 144, the 1933 Act and the 1934 Act, (ii) a copy of the most recent annual or quarterly report of the Company and such other reports and documents so filed by the Company, and (iii) such other information as may be reasonably requested to permit the Investors to sell such securities pursuant to Rule 144 without registration.

 

9. ASSIGNMENT OF REGISTRATION RIGHTS .

 

The rights under this Agreement shall be automatically assignable by the Investors to any transferee or assignee of all or any portion of Registrable Securities if: (i) the Investor agrees in writing with the transferee or assignee to assign such rights, and a copy of such agreement is furnished to the Company within five (5) Business Days after such transfer or assignment; (ii) the Company is, within five (5) Business Days after such transfer or assignment, furnished with written notice of (a) the name and address of such transferee or assignee, arid (b) the securities with respect to which such registration rights are being transferred or assigned; (iii) immediately following such transfer or assignment the further disposition of such securities by the transferee or assignee is restricted under the 1933 Act or any applicable state securities laws; (iv) at or before the time the Company receives the written notice contemplated by clause (ii) of this sentence, the transferee or assignee agrees in writing with the Company to be bound by all of the provisions contained herein; (v) such transfer or assignment is made in accordance with the applicable requirements of the Securities Purchase Agreement, and (vi) in the case of a transfer or assignment of fewer then all of the Registrable Securities then held by the Investor to a Person that is not an affiliate of the Investor, at least 50,000 Registrable Securities (subject to adjustment for stock splits, stock dividends, stock combinations and similar transactions after the date of this Agreement) are transferred or assigned to the transferee or assignee.

 

10. AMENDMENT OF REGISTRATION RIGHTS .

 

Provisions of this Agreement may be amended and the observance thereof may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of the Company and Investors who then hold at least two-thirds (2/3) of the Registrable Securities. Any amendment or waiver effected in accordance with this Section 10 shall be binding upon each Investor and the Company. No such amendment shall be effective to the extent that it applies to less than all of the holders of the Registrable Securities. No consideration shall be offered or paid to any Person to amend or consent to a waiver or modification of any provision of any of this Agreement unless the same consideration also is offered to all of the parties to this Agreement.

 

11. TAXES .

 

a. Payments Free of Taxes . Any and all payments by or on account of any obligation of the Company under this Agreement shall be made without any set-off, counterclaim or deduction and free and clear of, and without deduction for, any Indemnified Taxes; provided that if the Company shall be required to deduct any Indemnified Taxes from such payments, then (i) the sum payable shall be increased as necessary so that after making all required deductions

 

12


(including deductions applicable to additional sums payable under this Section 11(a)), the Investor to whom such payments are owed receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Company shall make such deductions and (iii) the Company shall pay the full amount deducted to the relevant Governmental Authority in accordance with applicable law; provided, further, that if the Company is required to make any additional payment to an Investor under this Section 11(a), and if such Investor is entitled to a cash refund or credit against cash taxes payable which is both identifiable and quantifiable by such Investor as being attributable to the imposition of such Indemnified Taxes (a “Tax Refund”), and such Tax Refund may be obtained without increased liability or obligation to such Investor (including any obligation of such Investor to file tax returns in jurisdictions where it would not otherwise be obligated to file tax returns), then, upon the written request of the Company, such Investor shall apply for such Tax Refund and, to the extent such Tax Refund is received by such Investor, shall reimburse the Company for such amount as such Investor shall determine to be the proportion of the Tax Refund attributable to such additional payment as will leave such Investor after the reimbursement in the same position as it would have been if the additional payment had not been required; provided that, if any Tax Refund reimbursed by such Investor to the Company is subsequently disallowed, the Company shall repay such Investor such amount (together with interest and any applicable penalty payable by such Investor to the relevant taxing authority) promptly after such Investor notifies the Company of such disallowance. The Company agrees to reimburse such Investor for such Investor’s reasonable out-of-pocket expenses, if any, incurred in complying with any request hereunder and agrees that all costs incurred by such Investor in respect of this Section 11(a) may be deducted from the amount of any reimbursement to the Company in respect of any Tax Refund pursuant to this Section 11(a).

 

b. Indemnification by the Company . The Company shall indemnify each Investor, within ten (10) days after written demand therefor, for the full amount of any Indemnified Taxes paid by such Investor on or with respect to any payment by or on account of any obligation of the Company under this Agreement (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section Il) and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate of such Investor as to the amount of such payment or liability under this Section 1! shall be delivered to the Company and shall be conclusive absent demonstrable error

 

12. MISCELLANEOUS .

 

a. A Person is deemed to be a holder of Registrable Securities whenever such Person owns or is deemed to own of record such Registrable Securities. If the Company receives conflicting instructions, notices or elections from two or more Persons with respect to the same Registrable Securities, the Company shall act upon the basis of instructions, notice or election received from the registered owner of such Registrable Securities.

 

b. Any notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement must be in writing and will be deemed to have been delivered: (i) upon receipt, when delivered personally; (ii) upon receipt, when sent by facsimile (provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending party); or (iii) one (1) Business Day after deposit with a nationally recognized overnight delivery service, in each case properly addressed to the party to receive the same. The addresses and facsimile numbers for such communications shall be:

 

If to the Company:

 

Gastar Exploration Ltd.
1331 Lamar Street, Suite 1080
Houston, Texas 77010
Telephone:    (713) 739-1800
Facsimile:    (713) 739-0458
Attention:    Chief Executive Officer

 

With a copy to:

 

Vinson & Elkins, L.L.P.
First City Tower
1001 Fannin Street, Suite 2300
Houston, Texas 77002-6760
Telephone:    (713) 758-2222
Facsimile:    (713) 758-2346
Attention:    1. Mark Kelly, Esq.

 

13


If to Legal Counsel:

 

Katten Muchin Rosenman LLP
525 West Monroe Street
Chicago, Illinois 60661-3693
Telephone:    (312) 902-5200
Facsimile:    (312) 902-1061
Attention:    Mark D. Wood, Esq.

 

If to a Buyer, to its address and facsimile number set forth on the Schedule of Buyers attached hereto, with copies to such Buyer’s representatives as set forth on the Schedule of Buyers, or if, in the case of a Buyer or other party named above, to such other address and/or facsimile number and/or to the attention of such other person as the recipient party has specified by written notice given to each other party at least five (5) days prior to the effectiveness of such change.

 

If to an Investor (other than a Buyer), to such Investor at the address and/or facsimile number reflected in the records of the Company. Written confirmation of receipt (A) given by the recipient of such notice, consent, waiver or other communication, (B) mechanically or electronically generated by the sender’s facsimile machine containing the time, date, recipient facsimile number and an image of the first page of such transmission or (C) provided by a courier or overnight courier service shall be rebuttable evidence of personal service, receipt by facsimile or deposit with a nationally recognized overnight delivery service in accordance with clause (i), (ii) or (iii) above, respectively.

 

c. Failure of any party to exercise any right or remedy under this Agreement or otherwise, or delay by a party in exercising such right or remedy, shall not operate as a waiver thereof.

 

d. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by the internal laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting the City of New York, borough of Manhattan, for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof to such party at the address for such notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. If any provision of this Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability shall not affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability of any provision of this Agreement in any other jurisdiction. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.

 

e. This Agreement and the other Transaction Documents constitute the entire agreement among the parties hereto with respect to the subject matter hereof and thereof. There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein and therein. This Agreement and the other Transaction Documents supersede all prior agreements and understandings among the parties hereto with respect to the subject matter hereof and thereof.

 

f. Subject to the requirements of Section 9, this Agreement shall inure to the benefit of and be binding upon the permitted successors and assigns of each of the parties hereto.

 

14


g. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.

 

h. This Agreement may be executed in two or more identical counterparts, all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to each other party; provided that a facsimile signature shall be considered due execution and shall be binding upon the signatory thereto with the same force and effect as if the signature were an original, not a facsimile signature.

 

i. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments arid documents, as the other party may reasonably request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.

 

j. All consents and other determinations to be made by the Investors pursuant to this Agreement shall be made, unless otherwise specified in this Agreement, by Investors holding at least two-thirds (2/3) of the Registrable Securities, determined without regard to any limitations on the issuance of the Shares. Any consent or other determination approved by Investors as provided in the immediately preceding sentence shall be binding on all Investors.

 

k. The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent and no rules of strict construction will be applied against any party.

 

l. This Agreement is intended for the benefit of the parties hereto and their respective permitted successors and assigns, and, to the extent provided in Sections 6(a) and 6(b) hereof, each Investor, the directors, officers, partners, employees, agents, representatives of, and each Person, if any who controls any Investor within the meaning of the 1933 Act, the 1934 Act or the Canadian Securities Laws and each of the Company’s directors, each of the Company’s officers who signs the Registration Statement, and each Person, if any, who controls the Company within the meaning of the 1933 Act, the 1934 Act or the Canadian Securities Laws, and is not for the benefit of, nor may any provision hereof be enforced by, any other Person.

 

m. Unless the context otherwise requires, (a) all references to Sections, Schedules or Exhibits arc to Sections, Schedules or Exhibits contained in or attached to this Agreement, (b) words in the singular or plural include the singular and plural and pronouns stated in either the masculine, the feminine or neuter gender shall include the masculine, feminine and neuter, and (c) the use of the word “including” in this Agreement shall be by way of example rather than limitation.

 

* * * * * *

 

15


IN WITNESS WHEREOF, the parties have caused this Registration Rights Agreement to be duly executed as of day and year first above written.

 

COMPANY:   BUYERS:
GASTAR EXPLORATION LTD.   HFTP INVESTMENT L.L.C.,
        By:   Promethean Asset Management L.L.C.
By:  

 


  Its:   Investment Manager
Name:   J. Russell Porter        
Title:   President and Chief Execute Officer   By:  

 


        Name:    
        Title:    
        GAIA OFFSHORE MASTER FUND, LTD.
        By:   Promethean Asset Management L.L.C.
        Its:   Investment Manager
        By:  

 


        Name:    
        Title:    
        LEONARDO, L.P.
        By:   Leonardo Capital Management, Inc.
        Its:   General Partner
        By:   Angelo, Gordon & Co., L.P.
        Its:   Director
        By:  

 


        Name:    
        Title:    
        WAYLAND RECOVERY FUND, LLC
        By:   Wayzata Investment Partners LLC
        Its:   Manager
        By:  

 


        Name:    
        Title:    
        WAYZATA RECOVERY FUND, LLC
        By:   Wayzata Investment Partners LLC
        Its:   Manager
        By:  

 


        Name:    
        Title:    


CYRUS OPPORTUNITIES FUND, L.P.
By:   Cyrus Capital Partners, L.P.,
    as Investment Manager
By:   Cyrus Capital Partners OP LLC,
    General Partner
By:  

 


Name:    
Title:    
CYRUS OPPORTUNITIES FUND II, L.P.
By:   Cyrus Capital Partners, L.P.,
    as Investment Manager
By:   Cyrus Capital Partners GP, LLC
    General Partner
By:  

 


Name:    
Title:    


SCHEDULE OF BUYERS

 

Investor’s Name


 

Investor Address

and Facsimile Number


 

Investor’s Legal Representative’s

Address and Facsimile Number


HFTP Investment L.L.C.  

c/o Promethean Asset Management L.L.C.

750 Lexington Avenue, 22 nd Floor

New York, New York 10022

Attention: Robert J. Brantman

Telephone: (212) 702-5200

Facsimile: (212) 758-9620

 

Katten Muchin Rosenman LLP

525 W. Monroe Street

Chicago, Illinois 6066 1-3693

Attention: Mark D. Wood, Esq.

Telephone: (312) 902-5200

Facsimile: (312) 902-1061

Gala Offshore Master Fund, Ltd.  

%Promethean Asset Management L.L.C. 750 Lexington Avenue, 22 nd Floor

New York, New York 10022

Attention: Robert J. Brantman

Telephone: (212) 702-5200

Facsimile: (212) 758-9620

 

Katten Muchin Rosenman LLP

525 W. Monroe Street

Chicago, Illinois 6066 1-3693

Attention: Mark D. Wood. Esq.

Telephone: (312) 902-5200

Facsimile: (312) 902-1061

Leonardo, L.P.  

c/o Angelo Gordon & Co.

245 Park Avenue

New York, New York 10167

Attention: Gary I. Wolf

Telephone: (212) 692-2058

Facsimile: (212) 867-6449

 

Park, Weiss, Rifkind, Wharton & Garrison LLP

1285 Avenue of the Americas

New York, New York 10019-6064

Attention: Douglas A. Cifu, Esq.

Telephone: (212) 373-3000

Facsimile: (212) 759-3990

Wayland Recovery Fund, LLC  

701 E. Lake Street, Suite 300

Wayzata, Minnesota 55391

Attention: Blake Carison

Telephone: (952) 345.0708

Facsimile: (952) 345-8901

 

701 E. Lake Street, Suite 300

Wayzata, Minnesota 55391

Attention: Susan Peterson

Telephone: (952) 345-0716

Facsimile: (952) 345-8901

Wayzata Recovery Fund, LLC  

701 E. Lake Street, Suite 300

Wayzata, Minnesota 55391

Attention: Blake Carlson

Telephone: (952) 345-0708

Facsimile: (952) 345-8901

 

701 E. Lake Street, Suite 300

Wayzata, Minnesota 55391

Attention: Susan Peterson

Telephone: (952) 345-0716

Facsimile: (952) 345-8901

Cyrus Opportunities Fund, L.P.  

c/o Cyrus Capital Partners, L.P.

390 Park Avenue, 21st Floor

New York, New York 10022

Attention: Robert Swenson

                Jenna Hwang

                Stephen D. Quinn

Telephone: (212) 380-5904

Facsimile: (212) 380-5801

 

c/o Cyrus Capital Partners, L.P.

390 Park Avenue, 21st Floor

New York, New York 10022

Attention: Robert Nisi, Esq.

Telephone: (212) 380-5904

Facsimile: (212) 380-5801

Cyrus Opportunities Fund II, L.P.  

c/o Cyrus Capital Partners, L.P.

390 Park Avenue, 21st Floor

New York, New York 10022

Attention: Robert Swenson

                 Jenna Hwang

                Stephen D. Quinn

Telephone: (212) 380.5904

Facsimile: (212) 380-5801

 

c/o Cyrus Capital Partners, L.P.

390 Park Avenue, 21 st Floor

New York, New York 10022

Attention: Robert Nisi, Esq.

Telephone: (212) 380-5904

Facsimile: (212) 380-5801


EXHIBIT A

 

FORM OF NOTICE OF EFFECTIVENESS

OF REGISTRATION STATEMENT

 

[TRANSFER AGENT]

Attn:                                                                  

 

  Re: Gastar Exploration Ltd.

 

Ladies and Gentlemen:

 

We are counsel to Gastar Exploration Ltd., an Alberta corporation (the “ Company ”), and have represented the Company in connection with that certain Securities Purchase Agreement (the “ Purchase Agreement ”) entered into by and among the Company and the buyers named therein (collectively, the “ Holders ”) pursuant to which the Company issued to the Holders an aggregate of                      common shares of the Company (the “ Common Shares ”) in accordance with the terms of the Purchase Agreement, subject to adjustment, and pursuant to which the Company shall issue additional Common Shares (such additional Common Shares together with the Initial Shares, the “ Shares ”), subject to adjustment and has the option to issue additional Common Shares (the “ Additional Shares ”), and together with the Initial Shares, the “ Shares ”), as set forth in, and subject to the terms and conditions of, the Purchase Agreement. Pursuant to the Purchase Agreement, the Company also has entered into a Registration Rights Agreement with the Holders (the “ Registration Rights Agreement ”) pursuant to which the Company agreed, among other things, to register the Registrable Securities (as defined in the Registration Rights Agreement), including the Shares, under the Securities Act of 1933, as amended (the “ 1933 Act ”). In connection with the Company’s obligations under the Registration Rights Agreement, on                           , 200    , the Company filed a Registration Statement on Form S-1 (File No. 333-                      ) (the “ Registration Statement ”) with the Securities and Exchange Commission (the “ SEC ”) relating to                      Registrable Securities (subject to adjustment) issued on                           , 200    , which names each of the Holders as a selling shareholder thereunder.

 

In connection with the foregoing, we advise you that a member of the SEC’s staff has advised us by telephone that the SEC has entered an order declaring the Registration Statement effective under the 1933 Act at [ENTER TIME OF EFFECTIVENESS] on [ENTER DATE OF EFFECTIVENESS] and we have no knowledge, after telephonic inquiry of a member of the SEC’s staff, that any stop order suspending its effectiveness has been issued or that any proceedings for that purpose are pending before, or threatened by, the SEC and the Registrable Securities are available for resale under the 1933 Act pursuant to the Registration Statement.

 

Very truly yours,
[ISSUER’S COUNSEL]
By:  

 


 

cc: [LIST NAMES OF HOLDERS]

EXHIBIT 4.10

 

UNITED STATES

 

SUBSCRIPTION AGREEMENT FOR

COMMON SHARES

 

TO:    Gastar Exploration Ltd. (the “Corporation”)
AND TO:    Pritchard Capital Partners, LLC

 

The undersigned (hereinafter referred to as the “ Subscriber ”) hereby irrevocably subscribes for and agrees to purchase the number of common shares of the Corporation set forth below (the “ Common Shares ”), for the aggregate subscription price set forth below (the “ Aggregate Subscription Price ”), representing a subscription price of $2.65 (U.S.) per Common Share, upon and subject to the terms and conditions set forth in “Terms and Conditions of Subscription for Common Shares of Gastar Exploration Ltd.” attached hereto (together with this page and the attached Exhibits, the “ Subscription Agreement ”). In addition to this face page, the Subscriber must also complete all applicable Exhibits attached hereto.

 

 

 


  

Number of Common Shares:                                                     

 

Aggregate Subscription Price (U.S.): $                                 

(Name of Subscriber - please print)

    
By:   

 


(Authorized Signature)

  

Deliver the Common Shares as set forth below:

 

 


(Name)

 

 


(Official Capacity or Title - please print)

 

 


(Please print name of individual whose signature appears above if

different than the name of the subscriber printed above.)

 

 


(Subscriber’s Address, including ZIP code)

 

 


  

 


(Account reference, if applicable)

 

 


(Contact Name)

 

 


(Address, including ZIP code)

 

 


 

 

Register the Common Shares as set forth below:

 

 


    

(Telephone Number)                            (E-Mail Address)

 

 


(Taxpayer Identification Number)

  

(Name)

 

 


(Account reference, if applicable)

 

 


(Address, Including ZIP code )

 

 


 

ACCEPTANCE: The Corporation hereby accepts the subscription as set forth above on the terms and conditions contained in this Subscription Agreement.              Dated:      June                      , 2005

 

GASTAR EXPLORATION LTD.             

Subscription No:

By:

 

 


   Title:   

 


  

 


 

This is the first page of an agreement comprised of 11 pages (not including Exhibits).


TERMS AND CONDITIONS OF SUBSCRIPTION FOR

COMMON SHARES OF

GASTAR EXPLORATION LTD.

 

Terms of the Offering

 

1. The Subscriber acknowledges (on its own behalf and, if applicable, on behalf of each person on whose behalf the Subscriber is contracting) that this subscription is subject to rejection or allotment by the Corporation in whole or in part.

 

2. The Subscriber acknowledges (on its own behalf and, if applicable, on behalf of each person on whose behalf the Subscriber is contracting) that:

 

( ) the Common Shares subscribed for by it hereunder form part of a larger issuance and sale by the Corporation of up to 6,646,526 Common Shares at an issue price of $2.65 (U.S.) per Common Share on a best efforts marketed offering basis through the Agent (the “ Offering ”); and

 

( ) subject to Section 10, the Offering is not subject to any minimum subscription level, and therefore, any funds invested are available to the Corporation and will be paid to the Corporation on the Closing Date.

 

Representations, Warranties and Covenants by Subscriber

 

3. The Subscriber (on its own behalf and, if applicable, on behalf of each person on whose behalf the Subscriber is contracting) represents, warrants and covenants to the Corporation and the Agent and their respective counsel (and acknowledges that the Corporation and the Agent, and their respective counsel, are relying thereon) that both at the date hereof and at the Closing Time (as defined herein):

 

( ) Subscriber (i) has been advised that trading in the Common Shares will be subject to various limitations and holding periods of up to two years under the securities laws of the United States and four months under the securities laws of Canada regardless of the residence of the Subscriber; (ii) has been independently advised as to restrictions with respect to trading in the Common Shares imposed by applicable securities legislation in the jurisdiction in which it resides; (iii) confirms that no representation has been made to it by or on behalf of the Corporation with respect thereto; it acknowledges that it is aware of the characteristics of the Common Shares, the risks relating to an investment therein, and of the fact that it may not be able to resell the Common Shares except in accordance with limited exemptions under applicable securities legislation and regulatory policy until expiry of the applicable restricted period and compliance with the other requirements of applicable law; and

 

( ) Other than the documents listed on Exhibit 2 hereto, which have been previously provided to, or obtained by, Subscriber (the “Disclosure Documents”), Subscriber has not received or been provided with, nor has it requested, nor does it have any need to receive, any offering memorandum, any prospectus, sales or advertising literature, or any other document describing or purporting to describe the business and affairs of the Corporation which has been prepared for delivery to, and review by, prospective purchasers in order to assist it in making an investment decision in respect of the Common Shares ; and

 

( ) Subscriber has not become aware of any advertisement in printed media of general and regular paid circulation (or other printed public media), radio, television or telecommunications or other form of advertisement (including electronic display) with respect to the distribution of the Common Shares; and

 

( ) Subscriber is, and at all times since the Subscriber received a copy of the Disclosure Documents, was, a resident of and was offered the Common Shares in the jurisdiction set forth as the “Subscriber’s Address” under its signature on the face page of this Subscription Agreement; if the state of his or her principal residence, or the state of its principal office or principal place of business, changes, or his, her or its address changes in any other respect, before the consummation of his, her or its purchase of the Common Shares subscribed for under this Subscription Agreement, he, she or it will promptly notify the Corporation, and if the change in the state or his or her principal residence, or its principal office or principal place of business, is to a state in which an offer and/or sale of the Common Shares is prohibited by applicable law, any offer to sell Common Shares to him, her or it made before notification of the change in the state of his or her principal residence, or its principal office or principal place of business, shall be deemed retracted and he, she or it shall cease to be entitled to purchase Common Shares pursuant to such offer; and


( ) Subscriber acknowledges that:

 

  ( ) no securities commission or similar regulatory authority has reviewed or passed on the merits of the Common Shares or the adequacy or accuracy of the information set forth in any document provided to Subscriber; and

 

  ( ) there is no government or other insurance covering the Common Shares; and

 

  ( ) the Common Shares are a speculative investment that involves a high degree of risk of loss of entire investment; and

 

  ( ) there are substantial restrictions on the Subscriber’s ability to resell the Common Shares and it is the responsibility of the Subscriber to find out what those restrictions are and to comply with them before selling the Common Shares; and

 

  ( ) the Corporation has advised the Subscriber that the Corporation is relying on an exemption from the requirements to provide the Subscriber with a prospectus and to sell securities through a person or company registered to sell securities under the Securities Act (Alberta) and other applicable securities laws and, as a consequence of acquiring Common Shares pursuant to this exemption, certain protections, rights and remedies provided by the Securities Act (Alberta) and other applicable securities laws, including statutory rights of rescission or damages, will not be available to the Subscriber; and

 

  ( ) the Common Shares shall not be resold until after the expiry of the applicable “hold” or “restricted” period attaching to such Common Shares under United States and Canadian laws, unless sold pursuant to an exemption under all applicable securities laws, and the certificates evidencing the Common Shares which it shall receive will bear a legend referring to such restrictions on resale and neither the Corporation nor any transfer agent of the Corporation will register any transfers of such Common Shares not made in compliance with such restrictions on resale; and

 

  ( ) the Common Shares have not been approved or disapproved by the United States Securities Exchange Commission (the “ SEC ”) or any state securities commission nor has the SEC or any state securities commission passed upon the accuracy or adequacy of any representations of the Corporation; any representation to the contrary is a criminal offense.

 

( ) Subscriber is purchasing the Common Shares directly from the Corporation pursuant to Regulation D under U.S. Securities Act of 1933 , as amended (the “ 1933 Act ”), and:

 

  ( ) Subscriber is authorized to consummate the purchase of the Common Shares; and

 

  ( ) Subscriber understands and acknowledges that the Common Shares have not been registered under the 1933 Act, or any applicable state securities laws, and that the sale contemplated hereby is being made in reliance on a private placement exemption to institutional “accredited investors” as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D Regulation D under the 1933 Act (“ Institutional Accredited Investors ”) and similar exemptions under state law. Accordingly, the Common Shares will be “restricted securities” within the meaning of Rule 144 under the 1933 Act, and therefore may not be offered or sold by it, directly or indirectly, in the United States without registration under United States federal and, if not preempted, state securities laws, except in compliance with paragraph 3(f)(v) and, the Subscriber understands that the certificates representing the Common Shares issued to it will contain a legend in respect of such restrictions which is set out in (vi) below; and

 

  ( ) Subscriber has received, for its information only, a copy of this Subscription Agreement and a copy of each of the Disclosure Documents and has been offered the opportunity to ask questions and receive answers concerning the terms and conditions of the Offering and to obtain any information the Subscriber deems necessary to verify the accuracy of any information regarding the Corporation; and has had access to such additional information, if any, concerning the Corporation as it has considered necessary in connection with its investment decision to invest in the Common Shares; and

 

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  ( ) Subscriber has a pre-existing personal or business relationship with the Corporation or one of its officers, directors or controlling persons, or by reason of the Subscriber’s business or financial experience, that it has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the Common Shares and is able to bear the economic risks of such investment and can be reasonably assumed to have the capacity to protect his, her or its own interests in connection with the transaction contemplated by this Subscription Agreement; and

 

  ( ) Subscriber agrees that if it decides to offer, sell or otherwise transfer any of the Common Shares, it will not offer, sell or otherwise transfer any of such Common Shares, directly or indirectly, except: (A) to the Corporation, (B) outside the United States in accordance with Rule 903 or 904 of Regulation S under the 1933 Act, and in compliance with applicable local laws and regulations, (C) inside or outside the United States after one year pursuant to the exemption from registration under the 1933 Act provided by Rule 144 thereunder, (D) to a person it reasonably believes is a “qualified institutional buyer” (as defined in Rule 144A under the 1933 Act) purchasing for its own account or for the account of a qualified institutional buyer in a transaction meeting the requirements of Rule 144A, (E) inside the United States, in any other transaction exempt from registration under the 1933 Act and, in any event, in compliance with any applicable state securities laws of the United States, provided that prior to any transfer pursuant to this clause (E), the Corporation may require a legal opinion reasonably satisfactory to the Corporation that such transfer is exempt from registration under the 1933 Act and applicable state securities laws, and, in each instance, in compliance with any applicable state securities laws of the United States or (F) pursuant to a registration statement effective under the 1933 Act and covering such offer, sale and transfer; and

 

  ( ) Subscriber understands that upon the original issuance thereof, and until such time as the same is no longer required under applicable requirements of the 1933 Act or state securities laws, the certificates representing the Common Shares, and all certificates issued in exchange therefor or in substitution thereof, shall bear on the face of such certificates the following legend:

 

THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”) OR STATE SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF GASTAR EXPLORATION LTD. THAT SUCH SECURITIES MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO GASTAR EXPLORATION LTD., (B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 903 OR 904 OF REGULATION S UNDER THE U.S. SECURITIES ACT, (C) INSIDE OR OUTSIDE THE UNITED STATES, PURSUANT TO THE EXEMPTION FROM REGISTRATION UNDER THE U.S. SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER, (D) TO A PERSON THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE U.S. SECURITIES ACT) PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, OR (E) PURSUANT TO A REGISTRATION STATEMENT EFFECTIVE UNDER THE U.S. SECURITIES ACT AND COVERING SUCH OFFER, SALE OR TRANSFER (IT BEING UNDERSTOOD THAT THE ISSUER SHALL BE UNDER NO OBLIGATION TO FILE SUCH REGISTRATION STATEMENT). HEDGING TRANSACTIONS INVOLVING THE SECURITIES REPRESENTED HEREBY MAY NOT BE CONDUCTED EXCEPT IN COMPLIANCE WITH THE U.S. SECURITIES ACT;

 

provided , that if Common Shares are being sold in compliance with the requirements of Rule 144 under the 1933 Act or pursuant to an effective registration statement under the 1933 Act, the above legend may be removed by delivery of (i) an opinion of counsel of recognized standing reasonably satisfactory to the Corporation to the effect that such Common Shares held by it are being sold pursuant to Rule 144 of the 1933 Act or pursuant to an effective registration statement under the 1933 Act, as the case may be, and (ii) such other documentation reasonably requested by the Corporation or its transfer agent;

 

provided , further , that if (i) it is not an “affiliate” (as defined in Rule 405 under the 1933 Act) of the

 

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Corporation, (ii) it has not been such an affiliate in the preceding three months, and (iii) at least two years (or such shorter period as may be permitted under Rule 144(k) or any successor rule) have elapsed since the later of the date the Common Shares were acquired from the Corporation or from an affiliate of the Corporation, then the above legend may be removed from any certificates representing such Common Shares held by it by delivery to the Corporation of an opinion of counsel of recognized standing reasonably satisfactory to the Corporation, to the effect that any such Common Shares held by it may be sold pursuant to Rule 144(k) (or any successor rule) of the 1933 Act and such legend is no longer required under applicable requirements of the 1933 Act or state securities laws;

 

and the Corporation shall use its reasonable best efforts to cause the registrar and transfer agent of the Corporation to remove the foregoing U.S. legend within three business days (excluding weekends and holidays) of receipt of the foregoing, as applicable; and

 

  ( ) Each certificate representing the Common Shares will carry a legend, and any ownership statement issued under a direct registration system or other electronic book-entry system acceptable to the applicable Canadian securities regulator will bear a legend restriction notation, stating “Unless permitted under securities legislation, the holder of this security must not trade the security before [insert the date that is 4 months and a day after the distribution date.]

 

  ( ) Subscriber is an Institutional Accredited Investor as set forth in Exhibit 1 hereto and is acquiring the Common Shares as principal for its own account for investment, and not with a view to any resale, distribution or other disposition of the Common Shares, in violation of United States securities laws; the Subscriber has no contract, undertaking, agreement or arrangement with any person to sell, transfer, assign or pledge to such person or anyone else all or any part of the Common Shares for which the Subscriber hereby subscribes, and the Subscriber has no plans or intentions to enter into any such contract, undertaking or arrangement; and

 

  ( ) Subscriber has concurrently executed and delivered Exhibit 1 hereto with this Subscription Agreement which Exhibit is incorporated into and forms a part of this Subscription Agreement; and

 

  ( ) Subscriber has read, is fully familiar with, and completely understands, the Disclosure Documents and any other documents and information which he, she or it deems material to making an investment decision with respect to the Common Shares; and

 

  ( ) the financial condition of the Subscriber is such that he, she or it has no need for liquidity with respect to his, her or its investment in the Common Shares to satisfy any existing or contemplated undertaking or indebtedness, and he, she or it has no need for a current return on his, her or its investment in the Common Shares; he, she or it is able to bear the economic risk of his, her or its investment in the Common Shares for an indefinite period of time, including the risk of losing all of his, her or its investment, and the loss of his, her or its entire investment in the Common Shares would not materially adversely affect the standard of living of the Subscriber or his or her family; and

 

  ( ) all information that the Subscriber has provided in this Subscription Agreement concerning the Subscriber and his, her or its financial condition is correct and complete as of the date set forth below, and if there should by any material change in such information prior to the acceptance of the Subscriber’s subscription for the Common Shares subscribed for under this Subscription Agreement, the Subscriber will immediately so notify the Corporation; and

 

( ) Subscriber understands and acknowledges that the certificates representing the Common Shares will also bear a legend that the securities cannot be traded through the facilities of stock exchanges in Canada since the certificate is not freely transferable and consequently is not “good delivery” in transactions on such stock exchanges unless on or prior to such trade, arrangements have been made to remove the legends as provided in the provisos of paragraph 3(f)(vi) hereof, and it acknowledges that such stock exchanges would deem the selling security holder to be responsible for any loss incurred on a sale made by such security holder in such securities; and

 

( ) Subscriber understands and acknowledges that the Corporation has the right to instruct the transfer agent for the Common Shares not to record a transfer by any person in the United States without first being notified by the Corporation that it is satisfied that such transfer is exempt from or not subject to registration under the 1933 Act and any applicable state securities laws; and

 

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( ) Subscriber acknowledges that it has not purchased the Common Shares as a result of any general solicitation or general advertising, as such terms are defined in Regulation D under the 1933 Act, including, without limitation, advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and

 

( ) except as provided herein, no person has made to the Subscriber any written or oral representation:

 

  ( ) that any person will resell or repurchase the Common Shares;

 

  ( ) that any person will refund the purchase price of the Common Shares; or

 

  ( ) as to the future price or value of the Common Shares; and

 

( ) Subscriber understands and acknowledges that the Corporation (i) is not presently, nor is the Corporation under any obligation to become, a “foreign private issuer”, as such term is defined in Regulation S of the 1933 Act and (ii) because the Corporation is not a foreign private issuer, the 1933 Act restricts the offer, sale or transfer of the Common Shares both within and outside of the United States, as set forth in this Subscription Agreement; and

 

( ) if a corporation, partnership, unincorporated association or other entity, Subscriber has the legal capacity to enter into and be bound by this Subscription Agreement and further certifies that all necessary approvals of directors, shareholders or otherwise have been given and obtained; and

 

( ) this Subscription Agreement has been duly and validly authorized, executed and delivered by and constitutes a legal, valid, binding and enforceable obligation of the Subscriber; and

 

( ) in the case of a subscription by Subscriber for Common Shares acting as agent for a disclosed principal, it is duly authorized to execute and deliver this Subscription Agreement and all other necessary documentation in connection with such subscription on behalf of such principal and this Subscription Agreement has been duly authorized, executed and delivered by or on behalf of, and constitutes a legal, valid, binding and enforceable agreement of, such principal; and

 

( ) except for the representations and warranties made by the Corporation in this Agreement and the Subscriber’s review of the Disclosure Documents, Subscriber has relied solely upon publicly available information relating to the Corporation and not upon any verbal or written representation as to fact or otherwise made by or on behalf of the Corporation; and

 

( ) Subscriber acknowledges that the Corporation’s counsel and the Agent’s counsel are acting as counsel to the Corporation and the Agent, respectively, and not as counsel to the Subscriber; and

 

( ) Subscriber understands, acknowledges and is aware that the Common Shares are being offered for sale only on a “private placement” basis and that the sale and delivery of the Common Shares is conditional upon such sale being exempt from the requirements under applicable securities legislation as to the filing of a prospectus or delivery of an offering memorandum or upon the issuance of such orders, consents or approvals as may be required to permit such sale without the filing of a prospectus or delivering an offering memorandum and, as a consequence (i) it is restricted from using most of the civil remedies available under securities legislation; (ii) it may not receive information that would otherwise be required to be provided to it under securities legislation; and (iii) the Corporation is relieved from certain obligations that would otherwise apply under securities legislation; and

 

( ) if required by applicable securities legislation, regulations, rules, policies or orders or by any securities commission, stock exchange or other regulatory authority, the Subscriber will execute, deliver, file and otherwise assist the Corporation in filing, such reports, undertakings and other documents with respect to the issue of the Common Shares, including, without limitation, a duly completed copy of Exhibit 1 ; and

 

( ) the acquisition of the Common Shares hereunder by the Subscriber will not result in the Subscriber becoming a “control person”, as defined under applicable securities laws; and

 

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( ) the entering into of this Subscription Agreement and the completion of the transactions contemplated hereby do not and will not result in a violation of any of the terms or provisions of any law applicable to the Subscriber, or if the Subscriber is not a natural person, any of the Subscriber’s constating documents, or any agreement to which the Subscriber is a party or by which it is bound; and

 

( ) the Subscriber acknowledges that it has been encouraged to obtain independent legal, income tax and investment advice with respect to its subscription for the Common Shares and accordingly, has had the opportunity to acquire an understanding of the meanings of all terms contained herein relevant to the Subscriber for purposes of giving representations, warranties and covenants under this Subscription Agreement; and

 

Representations and Warranties of the Corporation

 

4. The Corporation represents and warrants, as of the date of this Agreement and the Closing Date, to the Subscriber, that:

 

( ) Each of the Corporation and its subsidiaries is a corporation, limited liability company, partnership or other entity and is duly organized and validly existing in good standing under the laws of the jurisdiction in which it is organized, and is duly qualified to do business as a foreign corporation in all jurisdictions in which the failure to be so qualified would materially and adversely affect the business or financial condition, properties or operations of the Corporation. Each of the Corporation and its subsidiaries has all requisite corporate, partnership, limited liability company or other organizational power and authority (i) to own and lease the properties and assets it currently owns and leases (if any) and it contemplates owning and leasing and (ii) to conduct its activities as such activities (if any) are currently conducted and as currently contemplated to be conducted.

 

(a) As of the date of this Agreement, the authorized capital of the Corporation consists of an unlimited number of Common Shares and preferred shares, of which as of the date of this Agreement 119,326,298 Common Shares and no preferred shares are issued and outstanding, 16,934,600 Common Shares are reserved for issuance pursuant to the Corporation’s share option, restricted shares and share purchase plans; and 11,846,603 Common Shares are issuable and reserved for issuance pursuant to securities exercisable or exchangeable for, or convertible into, Common Shares. All of such outstanding or issuable shares have been, or upon issuance will be, validly issued and are, or upon issuance will be, fully paid and nonassessable.

 

( ) The Corporation has duly authorized the issuance and sale of the Common Shares in accordance with the terms of this Agreement. This Agreement constitutes a valid and legally binding obligation of the Corporation, enforceable in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies, and (iii) to the extent the indemnification provisions contained herein may be limited by applicable federal or state securities laws.

 

( ) The Common Shares, when issued and paid for in accordance with this Agreement, will represent validly authorized, duly issued and fully paid and nonassessable Common Shares of the Corporation, and the issuance thereof will not conflict with the organizational documents of the Corporation.

 

( ) The execution and delivery of this Agreement, the fulfillment of the terms set forth herein and the consummation of the transactions contemplated hereby will not conflict with, or constitute a breach of or default under, any agreement, indenture or instrument by which the Corporation is bound or any law, administrative rule, regulation or decree of any court or any governmental body or administrative agency applicable to the Corporation.

 

( ) As of the date of this Agreement, the offering documents do not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

 

( ) Subsequent to the dates as of which information is given in the offering documents, except as described therein, there has not been any material adverse change with regard to the assets or properties, results of operations or financial condition of the Corporation.

 

( )

Other than as publicly disclosed by the Corporation, there is no litigation or governmental or other proceeding or investigation at law or in equity before any court or before any federal, provincial, state, municipal or other governmental or public department, commission, board, agency or body, domestic or foreign, pending or, to the

 

7


 

Corporation’s knowledge, threatened (and the Corporation does not know of any basis therefor) against, or involving the assets, property or business of, the Corporation or any of its subsidiaries, nor are there any matters under discussion with any governmental authority relating to taxes, governmental charges or assessments asserted by any such authority that would materially adversely affect the value or the operation of such assets or properties or the business, results of operations, prospects or condition (financial or otherwise) of the Corporation and its subsidiaries, taken as a whole.

 

( ) To the knowledge of the Corporation, no securities commission, stock exchange or comparable authority has issued any order preventing the issue and sale of the Common Shares nor instituted proceedings for that purpose, and, to the knowledge of the Corporation, no such proceedings are pending or contemplated.

 

( ) The Corporation is, and has been for the four months immediately preceding the Closing Date, a reporting issuer not in default of any requirement under the securities laws, regulations, rules, orders and policies applicable in British Columbia, Alberta, Manitoba, Ontario, Quebec and Nova Scotia (the “Canadian Securities Laws”) . The Corporation is in compliance with all timely disclosure obligations under applicable Canadian Securities Laws, and none of the documents filed by or on behalf of the Corporation pursuant to such Canadian Securities Laws contains a misrepresentation at the date of the filing thereof.

 

( ) The first trade of the Common Shares purchased by the Subscriber is exempt from the prospectus requirements of the Canadian Securities Laws so long as:

 

  (i) at least four months have elapsed from the Closing Date;

 

  (ii) the trade is not a control distribution (as defined in Multilateral Instrument 45-102 promulgated under the securities laws of each Canadian jurisdiction other than Quebec);

 

  (iii) no unusual effort is made to prepare the market or to create a demand for the security that is the subject of the trade;

 

  (iv) no extraordinary commission or consideration is paid to a person or company in respect of the trade; and

 

  (v) if the selling security holder is an insider or officer of the issuer, the selling security holder has no reasonable grounds to believe that the issuer is in default of securities legislation; and

 

( ) The Corporation will continue to be a reporting issuer under applicable Canadian Securities Laws until that date that is four months and a day after the Closing Date.

 

( ) Assuming the accuracy of the representations and warranties of the Subscriber set forth in this Agreement, the offer, issuance and delivery of the Common Shares are exempt from the prospectus and dealer registration requirements of the relevant securities laws, and are exempt from or not subject to the registration requirements of the 1933 Act.

 

( ) The Common Shares will, prior to issuance, be conditionally listed for trading on the Toronto Stock Exchange.

 

Resale Commitments

 

5. The Corporation will use its reasonable commercial efforts to file a registration statement (the “Registration Statement”) on proper form with the United States Securities and Exchange Commission (the “SEC”) covering the resale of all Common Shares that are restricted under the U.S. Securities Act within 90 days of the Closing Date. The Corporation shall use its reasonable commercial efforts to cause the Registration Statement to be declared effective within 180 days of the Closing Date. The Corporation shall cause the Registration Statement to remain effective until the earlier of (i) 30 days after all the Common Shares have been sold under the Registration Statement, or (ii) one year from the Closing Date.

 

6. The subscriber acknowledges and agrees that, if it chooses to avail itself of the use of the Registration Statement it will, upon request of the Corporation, timely furnish to the Corporation for use and publication in the Registration Statement all selling shareholder information required to be included in the Registration Statement, and the subscriber will advise the Corporation whenever such information is incorrect and will furnish updated information. The subscriber acknowledges that failure to timely provide such information, and to keep such information updated, will excuse the Corporation from maintaining or filing the

 

8


Registration Statement for the benefit of such subscriber. The subscriber agrees to indemnify and hold harmless the Corporation, its respective officers, directors, partners, employees, representatives and agents, or any controlling persons (any such person referred to hereinafter shall be referred to as an “Indemnified Holder”), against any losses, claims, damages or liabilities to which such Indemnified Holder may become subject under the U.S. Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions or proceedings in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in any information furnished by the subscriber for use in the Registration Statement or related prospectus, or any amendment or supplement thereto or any related preliminary prospectus or (ii) the omission or alleged omission to state therein a material fact required to be included in such information requested by the Corporation or necessary to make such information not misleading, in the light of the circumstances under which such information is furnished.

 

7. The subscriber acknowledges that if the Registration Statement is declared effective (i) the Corporation shall be under no obligation to arrange an underwriting or otherwise assist in providing for any proposed sales of Common Shares covered by the Registration Statement and (ii) in order to update the Registration Statement with periodic information or material non-public information as required by the U.S. Securities Act, the effectiveness of the Registration Statement, and the ability of the subscriber to effect sales of Common Shares covered thereby, will be periodically suspended from time to time upon notice to the holders of Common Shares. The Corporation shall not be required to specify in any notice to the nature of the event giving rise to the suspension. The Corporation will use its reasonable efforts to limit these suspended periods to those required by the U.S. Securities Act.

 

8. The Corporation shall maintain its common stock as listed for trading on the Toronto Stock Exchange for one year after the Closing Date.

 

Closing

 

9. The Subscriber agrees to deliver to the Agent, not later than 12:00 p.m. (Houston Texas time) on the day that is two business days before the Closing Date: (a) this duly completed and executed Subscription Agreement; and (b) Exhibit 1 duly completed.

 

10. Subscriber acknowledges that its obligation to purchase the Common Shares hereunder is not conditioned upon the issuance of senior secured notes described in Exhibit 3 hereto or the consummation of the proposed Geostar acquisition described in the Disclosure Documents. Subscriber acknowledges that it has made its investment decision to purchase the Common Shares, assuming that one or both such transactions may not close or, if pursued by the Corporation, such transactions may close on terms that are materially different than previously disclosed. Subscriber acknowledges that the terms and existence of the proposed senior secured notes financing described in Exhibit 3 are confidential non-public information concerning the Corporation, which should not be publicly disclosed by Subscriber. The Corporation agrees that, in the event it closes a debt transaction or series of debt transactions as an alternative to the senior secured notes transaction described on Exhibit 3 hereto, it will not in connection with the alternative debt transaction or series of alternative debt transactions, without the consent of subscribers holding a majority of the Common Shares issued pursuant to this Subscription Agreement and similar subscription agreements for Common Shares issued on the Closing Date, issue or commit to issue, within a period of 18 months from the Closing Date, a number of Common Shares or any other equity securities, having an aggregate equity value in excess of that would would have been issued under the proposed senior secured notes transaction described in Exhibit 3.

 

11. The sale of the Common Shares pursuant to this Subscription Agreement will be completed at the offices of Vinson & Elkins L.L.P., the Corporation’s counsel, in Houston, Texas at 10:00 a.m. or such other time as the Corporation and the Subscriber may agree (the “ Closing Time ”) on June 15, 2005 or such other date as the Corporation and the Subscriber may agree (the “ Closing Date ”).

 

12. At or prior to the Closing Time, the Corporation will deliver to the Subscriber, or the Subscriber’s custodian as directed by the Subscriber, a certificate representing the Common Shares to be purchased by the Subscriber, registered in the manner as set forth on the face page of this Agreement, in the Corporation’s transfer agent, which certificate will be held in escrow by the Subscriber or its custodian pending completion of the sale. Following receipt of the certificate referred to in the previous sentence, the Subscriber will, at the Closing Time, pay for the Common Shares by wire transfer of immediately available funds.

 

13. The Corporation shall be entitled to rely on delivery of a facsimile copy of executed Subscription Agreements, and acceptance by the Corporation of such facsimile subscriptions shall be legally effective to create a valid and binding agreement between the Subscriber and the Corporation in accordance with the terms hereof. In addition, this Subscription Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which shall constitute one and the same document.

 

9


General

 

14. The Subscriber agrees that the representations, warranties and covenants of the Subscriber herein will be true and correct both as of the execution of this Subscription Agreement and as of the Closing Time and will survive the completion of the issuance of the Common Shares. The representations, warranties and covenants of the Subscriber herein are made with the intent that they be relied upon by the Corporation and the Agent and their respective counsel in determining the eligibility of a purchaser of Common Shares and the Subscriber agrees to indemnify and hold harmless the Corporation and the Agent and their respective affiliates, shareholders, directors, officers, partners, employees and agents, from and against all losses, claims, costs, expenses and damages or liabilities whatsoever which any of them may suffer or incur which are caused or arise from a breach thereof. The Subscriber undertakes to immediately notify the Corporation at Gastar Exploration Ltd., 888, 900 – 6 th Avenue S.W., Calgary, Alberta, T2P 3K2, Attention: Sara-Lane Sirey, Corporate Secretary (Fax Number: (403) 237-6518) of any change in any statement or other information relating to the Subscriber set forth herein which takes place prior to the Closing Time.

 

15. The Subscriber acknowledges that the Agent has agreed to offer the Common Shares on a best efforts marketed “private placement” basis and, in connection therewith, the Corporation and the Agent have entered into, or will enter into prior to the Closing Date, an agreement (the “ Agency Agreement ”) pursuant to which the Agent, in connection with the issue and sale of the Common Shares, will receive a fee from the Corporation.

 

16. The Subscriber acknowledges that this Subscription Agreement and the Exhibits hereto require the Subscriber to provide certain personal information to the Corporation. Such information is being collected by the Corporation for the purposes of completing the Offering, which includes, without limitation, determining the Subscriber’s eligibility to purchase the Common Shares under applicable securities legislation, preparing and registering certificates representing Common Shares to be issued to the Subscriber and completing filings required by any stock exchange or securities regulatory authority. The Subscriber’s personal information may be disclosed by the Corporation to: (a) stock exchanges or securities regulatory authorities, (b) the Corporation’s registrar and transfer agent; and (c) any of the other parties involved in the Offering, including legal counsel, and may be included in record books in connection with the Offering. By executing this Subscription Agreement, the Subscriber is deemed to be consenting to the foregoing collection, use and disclosure of the Subscriber’s personal information. The Subscriber also consents to the filing of copies or originals of any of the Subscriber’s documents described in paragraph 4 hereof as may be required to be filed with any stock exchange or securities regulatory authority in connection with the transactions contemplated hereby.

 

17. To the best of its knowledge (a) none of the subscription funds to be provided by the Subscriber (i) have been or will be derived from or related to any activity that is deemed criminal under the law of Canada, the United States of America, or any other jurisdiction, or (ii) are being tendered on behalf of a person or entity who has not been identified to the Subscriber, and (b) it shall promptly notify the Corporation if the Subscriber discovers that any of such representations ceases to be true, and to provide the Corporation with appropriate information in connection therewith.

 

18. The obligations of the parties hereunder are subject to acceptance of the terms of the Offering by the Toronto Stock Exchange and all other required regulatory approvals.

 

19. The Subscriber acknowledges and agrees that all costs incurred by the Subscriber (including any fees and disbursements of any special counsel retained by the Subscriber) relating to the sale of the Common Shares to the Subscriber shall be borne by the Subscriber.

 

20. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, without regard to the principles of conflicts of law thereof that would require the application of the laws of any jurisdiction other than Texas.

 

21. This Subscription Agreement represents the entire agreement of the parties hereto relating to the subject matter hereof and there are no representations, covenants or other agreements relating to the subject matter hereof except as stated or referred to herein.

 

22. The terms and provisions of this Subscription Agreement shall be binding upon and enure to the benefit of the Subscriber and the Corporation and their respective heirs, executors, administrators, successors and assigns; provided that, except for the assignment by a Subscriber who is acting as nominee or agent for the beneficial owner and as otherwise herein provided, this Subscription Agreement shall not be assignable by any party without prior written consent of the other parties.

 

10


23. The Subscriber, on its own behalf and, if applicable, on behalf of others for whom it is contracting hereunder, agrees that this subscription is made for valuable consideration and may not be withdrawn, cancelled, terminated or revoked by the Subscriber, on its own behalf and, if applicable, on behalf of others for whom it is contracting hereunder.

 

24. Subject to Section 12, neither this Subscription Agreement nor any provision hereof shall be modified, changed, discharged or terminated except by an instrument in writing signed by the party against whom any waiver, change, discharge or termination is sought.

 

25. The invalidity, illegality or unenforceability of any provision of this Subscription Agreement shall not affect the validity, legality or enforceability of any other provision hereof.

 

26. The headings used in this Subscription Agreement have been inserted for convenience of reference only and shall not affect the meaning or interpretation of this Subscription Agreement or any provision hereof.

 

27. The covenants, representations and warranties contained herein shall survive the closing of the transactions contemplated hereby.

 

28. In this Subscription Agreement (including the Exhibits hereto) all references to dollar amounts are to United States dollars, unless otherwise indicated.

 

11


EXHIBIT 1

 

CERTIFICATE OF INSTITUTIONAL ACCREDITED INVESTOR STATUS

 

Except as may be indicated by the undersigned below, the undersigned is an institutional “accredited investor,” as that term is defined in Regulation D under the Securities Act of 1933, as amended (the “ Securities Act ”). The undersigned has checked the box below indicating the basis on which he is representing his status as an institutional “accredited investor”:

 

_________               (501(a)(1)) any bank as defined in Section 3(a)(2) of the U.S. Securities Act of 1933 , or any savings and loan association or other institution as defined in Section 3(a)(5)(A) of such Act whether acting in its individual or fiduciary capacity, any broker or dealer registered pursuant to Section 15 of the U.S. Securities Exchange Act of 1934 , any insurance company as defined in Section 2(13) of the U.S. Securities Act of 1933 , any investment company registered under the U.S. Investment Company Act of 1940 or a business development company as defined in Section 2(a)(48) of the U.S. Investment Company Act of 1940 , any small business investment company licensed by the U.S. Small Business Administration under Section 301(c) or (d) of the U.S. Small Business Investment Act of 1958 , any plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions for the benefit of its employees, if such plan has total assets in excess of $5,000,000, any employee benefit plan within the meaning of Title 1 of the U.S. Employee Retirement Income Security Act of 1974 , if the investment decision is made by a plan fiduciary, as defined in Section 3(21) of the U.S. Employee Retirement Income Security Act of 1974 , which is either a bank, savings and loan association, insurance company, or registered investment adviser, or if the employee benefit plan has total assets in excess of $5,000,000 or, if a self-directed plan, with investment decisions made solely by persons that are accredited investors;
_________   (501(a)(2)) any private business development company as defined in Section 202(a)(22) of the U.S. Investment Advisers Act of 1940 ;
_________   (501(a)(3)) any organization described in Section 501(c)(3) of the U.S. Internal Revenue Code, corporation, Massachusetts or similar business trust, or partnership, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $5,000,000;
_________   (501(a)(7)) any trust, with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the securities offered, whose purchase is directed by a sophisticated person as described in SEC Rule 506(b)(2)(ii).

 

NOTE: The Subscriber should initial beside the portion of the above definition applicable to it.

 

All monetary references in this Exhibit 1 are in United States Dollars.

 

IN WITNESS WHEREOF, the undersigned has executed this Certificate of Institutional Accredited Investor Status effective as of June      , 2005.

 

 


Name of Subscriber

By:  

 


Name:  

 


Title:  

 


.


EXHIBIT 2

 

Disclosure Documents

 

1. Management Proxy and Information Circular dated June 1, 2005

 

2. Interim Consolidated Financial Statements for Three Months Ended March 31, 2005 (Unaudited - Canadian GAAP)

 

3. Management’s Discussion and Analysis - Quarter Ended March 31, 2005 (dated May 13, 2005)

 

4. Annual Information Form - Year Ended December 31, 2004 (dated March 29, 2005)

 

5. Annual Consolidated Financial Statements for Years Ended December 31, 2004 and 2003 (Audited - Canadian GAAP)

 

6. Company Press Releases dated April 19 and May 2, 10, 17, 20, 25 of 2005

 

7. Term Sheet for Proposed Senior Secured Note with Common Share Issuance attached as Exhibit 4 to this Subscription Agreement (Confidential)

 

The documents described in 1 through 6 above can be found under Gastar Exploration Ltd. Company Profile on www.sedar.com. The document described in 7 above is confidential and should not be distributed or disclosed.


EXHIBIT 3

 

GASTAR EXPLORATION LTD.

 

$90,000,000 SENIOR SECURED NOTES

With Common Share Issuance

 

TERM SHEET

(Confidential)

 

Issuer:      Gastar Exploration Ltd. (“the Company”).
Securities:      Senior Secured Notes (“the Notes”) issued at Par Value.
Issuance Amount:      Up to $90,000,000. The Company would receive $70,000,000 at the Closing, and have an option to draw an additional $20,000,000 over the Term (on terms and conditions described below).
Rank/Security:     

Investor would have a first perfected security interest on all tangible and intangible assets now owned, and hereafter created or acquired by the Company and its domestic (U.S.) subsidiaries, including but not limited to all accounts, notes, and contracts receivable, inventory, machinery and equipment, land and buildings, drilling and mineral rights, and general intangibles, and a first perfected pledge of 100% of the stock of all subsidiaries (existing & future, direct and indirect), except (i) with respect to the Powder River Basin assets (which would be subject to a springing lien if not sold within 120 days) (ii) existing Australian assets provided that pledge of 100% of stock of Subsidiary that owns such assets will remain in place at all times and (iii) California and Canadian oil and gas assets (which would be subject to a springing lien if value or investment to develop exceed $250,000 in each jurisdiction). Negative covenants prohibiting the issuance or incurrence of debt or liens at the foreign subsidiary level would also be included. Neither the Company nor any of its subsidiaries may incur any additional indebtedness unless such indebtedness (with certain exceptions) is subordinated to the Notes, in a form acceptable to Investor, is unsecured and matures after the maturity date of the Notes (‘Permitted Subordinated Debt”). Existing indebtedness to be scheduled to include convertible debentures of $30,000,000, $25,000,000 unsecured subordinated note due to Geostar in January 2006 and $3,250,000 unsecured subordinated note due 2009.

 

Permitted Indebtedness per industry standard for secured oil and gas financings.

Use of Proceeds:      Approximately $70,000,000 of the proceeds are to be used for general corporate purposes including re-financing existing debt, the


       acquisition of additional interests in the Company’s existing leasehold and working interest properties and the exploration and development of the Company’s East Texas, Powder River Basin and Australian oil, natural gas and CBM assets. Approximately $29,000,000 of the proceeds are to be used to redeem the 15% outstanding senior unsecured notes owed to Ingalls & Snyder.
Interest:      3 month Libor + 600 bps per annum, adjusted and payable quarterly in cash.
Term/Maturity:      5 years and 1 day.

Company Cash/Equity

Redemption Right:

     The Company, at any time after year one from the Closing, would have the right to repay any or all outstanding Notes in cash, at a redemption price equal to 105% of par plus accrued Interest for years 1 and 2, reducing prepayment penalty each year by 1% until at par plus accrued but unpaid Interest at the Maturity date.
Asset Sales:      Asset Sales and farm-outs permitted so long as (i) no Event of Default exists, (ii) proceeds subject to Lien and permitted investment covenants and (iii) officers certificate delivered verifying that after giving effect to disposition Company is in compliance with financial covenants.
Change of Control:      Any increase in common shares due to the terms of the look-back provision or due to the terms of the option to acquire coal rights in Victoria, Australia contained in the definitive documentation between Geostar and Gastar would be carved out of any change of control calculation for redemption purposes. Change of Control Redemption prepayment to match Company Redemption Right except for hostile takeover premium equal to 115% of par.
Company Draw Down Right:      During the period from the 3rd month through the 24th month following the initial Closing, provided the Notes remain outstanding and the Company remains in compliance with the Financial Covenants listed below, the Company would have the right on a quarterly basis to require the Investor to purchase up to an additional $20 million aggregate principal amount of additional Notes (the “Additional Notes”). The Additional Notes would be issued upon the same terms and conditions as the original Notes, including pro rata share issuance, except that these additional Notes would mature 5 years and 1 day from the date of their issuance.
Financial Covenants:     

The following financial covenants would apply

 

(i)      Hedging Requirement: The Company may not hedge more than 50% (on a forward rolling 12-month basis) of all oil and gas production;


      

(ii)     PV-10 Proved and Probable Oil and Gas reserves to Net Debt: The ratio of the Company’s PV-10 for its total proved and probable oil and gas reserves to the Company’s net debt (debt attributable to this facility only less cash balances), must be at least 2:1 (1.5 for maintenance purposes) during one year, 2.5:1 starting in year two, 3:1 starting in year three, 3.5:1 starting in year four and 3.5:1 starting in year five and thereafter;

 

(iii)   PV-10 Proved reserves to Net Debt: The ratio of the Company’s PV-10 for its total proved oil and gas reserves to the Company’s net debt (debt attributable to this facility only less cash balances), must be at least 1:1 starting in year two, 1.5:1 starting in year three, 2:1 starting in year four and thereafter.

 

The Company would have the continual obligation to repay at 100% of par plus accrued but unpaid Interest the amount of Notes necessary to maintain compliance with the above covenants, except for year one under covenant (ii) above, which for maintenance purposes would be 1.5:1, but for additional draw down purposes, 2:1. Clause (ii) and (iii) above will be calculated based on a price for gas per mcf of the lower of (a) $6.00 Henry Hub and (b) the then current Henry Hub prompt month price and price for oil per barrel of the lower of (a) $40 and (b) the then current NYMEX prompt month price.

Share Issuance:     

The Investor will receive at Closing and thereafter at each of the first three six-month anniversaries of the Closing, common shares equal to CND $5,000,000 divided by the arithmetic average of the Volume Weighted Average Price (over five trading days) of the Common Stock for the five consecutive trading days prior to Closing or applicable six month anniversary date as the case may be. Common shares to be issued at initial closing estimated to be approximately 1,300,000.

 

On the take down of Additional Notes and on each of the first three six-month anniversaries of such Additional Note Closing Date (each an “Additional Delivery Date”), the Company shall issue to Investors that number of common shares equal to the quotient of (A) one-fourteenth (1/14) of the Additional Note Issuance Amount Issuance Amount relating to such Additional Closing Date, divided by (B) the arithmetic average of the weighted average price of the common shares on each of the five (5) consecutive trading days immediately preceding the Additional Delivery Date.


       Share issuance will be subject to a (i) deferred issuance if Investors would hold at the time of issuance in excess of 9.99% of the common shares outstanding after any issuance, and (ii) limitation of issuance a maximum number of shares issued without breaching the rules or regulations of the TSX or such other principal market) (the “Exchange Cap”) with certain subsequent make-up cash payments, if necessary.
Registration:      The Company would be required to use reasonable best efforts to file with the U.S. SEC within 90 days of Closing a U.S. registration statement on Form S-1 and to use reasonable best efforts to have such registration statement declared effective within 180 calendar days from Closing covering the resale of the Common Stock. Certain penalties will apply for failure to register, or subject to applicable grace periods, failure to keep registration statement current.
Closing, Funding, Reimbursements:      Closing and funding would occur after the completion of due diligence to the satisfaction of all parties and simultaneously with the mutual execution of the investment agreements. The investment agreements would contain covenants and protections customary for an investment of this nature. The Company would pay to the Investor at each closing a non-accountable reimbursement amount (“Reimbursement”) equal to 1.0% of the Issuance Amount at such closing. The Investor would cover its own due diligence and legal costs.

EXHIBIT 4.11

 

CANADA – AB, ON

UNITED KINGDOM

CONTINENTAL EUROPE

OFFSHORE

 

SUBSCRIPTION AGREEMENT FOR

COMMON SHARES

 

TO:    Gastar Exploration Ltd. (the “Corporation”)
AND TO:    Westwind Partners Inc. (the “Agent”)

 

The undersigned (hereinafter referred to as the “ Subscriber ”) hereby irrevocably subscribes for and agrees to purchase the number of common shares of the Corporation set forth below (the “ Common Shares ”), for the aggregate subscription price set forth below (the “ Aggregate Subscription Price ”), representing a subscription price of $              (U.S.) per Common Share, upon and subject to the terms and conditions set forth in “Terms and Conditions of Subscription for Common Shares of Gastar Exploration Ltd.” attached hereto (together with this page and the attached Exhibits, the “ Subscription Agreement ”). In addition to this face page, the Subscriber must also complete all applicable Exhibits attached hereto.

 

 

 


  

Number of Common Shares:                                                     

 

Aggregate Subscription Price (U.S.): $                                 

(Name of Subscriber - please print)

    
By:   

 


(Authorized Signature)

  

Deliver the Common Shares as set forth below:

 

 


(Name)

 


(Official Capacity or Title - please print)

 


(Please print name of individual whose signature appears above if

different than the name of the subscriber printed above.)

 

 


(Subscriber’s Address)

 

 


  

 

 


(Account reference, if applicable)

 

 


(Contact Name)

 

 


(Address)

 

 

Register the Common Shares as set forth below:

 

 


    
(Telephone Number)                                 (E-Mail Address)   

(Name)

 

 


(Account reference, if applicable)

 

 


(Address)

 

ACCEPTANCE: The Corporation hereby accepts the subscription as set forth above on the terms and conditions contained in this Subscription Agreement.

 

Dated: June      , 2005

 

 

GASTAR EXPLORATION LTD.             

Subscription No:

By:

 

 


   Title:   

 


  

 


 

This is the first page of an agreement comprised of 12 pages (not including Exhibits).


TERMS AND CONDITIONS OF SUBSCRIPTION FOR

COMMON SHARES OF

GASTAR EXPLORATION LTD.

 

Terms of the Offering

 

1. The Subscriber acknowledges (on its own behalf and, if applicable, on behalf of each person on whose behalf the Subscriber is contracting) that this subscription is subject to rejection or allotment by the Corporation in whole or in part.

 

2. The Subscriber acknowledges (on its own behalf and, if applicable, on behalf of each person on whose behalf the Subscriber is contracting) that:

 

(a) the Common Shares subscribed for by it hereunder form part of a larger issuance and sale by the Corporation of up to __________ Common Shares at an issue price of $_____ (U.S.) per Common Share on a best efforts marketed offering basis through the Agent (the “ Offering ”); and

 

(b) subject to Section 10, the Offering is not subject to any minimum subscription level, and therefore, any funds invested are available to the Corporation and will be paid to the Corporation on the Closing Date.

 

Representations, Warranties and Covenants by Subscriber

 

3. The Subscriber (on its own behalf and, if applicable, on behalf of each person on whose behalf the Subscriber is contracting) represents, warrants and covenants to the Corporation and the Agent and their respective counsel (and acknowledges that the Corporation and the Agent, and their respective counsel, are relying thereon) that both at the date hereof and at the Closing Time (as defined herein):

 

(a) Subscriber (i) has been advised that trading in the Common Shares will be subject to various limitations and holding periods of up to two years under the securities laws of the United States and four months under the securities laws of Canada regardless of the residence of the Subscriber; (ii) has been independently advised as to restrictions with respect to trading in the Common Shares imposed by applicable securities legislation in the jurisdiction in which it resides; (iii) confirms that no representation has been made to it by or on behalf of the Corporation with respect thereto; it acknowledges that it is aware of the characteristics of the Common Shares, the risks relating to an investment therein, and of the fact that it may not be able to resell the Common Shares except in accordance with limited exemptions under applicable securities legislation and regulatory policy until expiry of the applicable restricted period and compliance with the other requirements of applicable law; and

 

(b) other than the documents listed on Exhibit 3 hereto, which have been previously provided to, or obtained by, Subscriber (the “Disclosure Documents”), Subscriber has not received or been provided with, nor has it requested, nor does it have any need to receive, any offering memorandum, any prospectus, sales or advertising literature, or any other document describing or purporting to describe the business and affairs of the Corporation which has been prepared for delivery to, and review by, prospective purchasers in order to assist it in making an investment decision in respect of the Common Shares ; and

 

(c) Subscriber has not become aware of any advertisement in printed media of general and regular paid circulation (or other printed public media), radio, television or telecommunications or other form of advertisement (including electronic display) with respect to the distribution of the Common Shares; and

 

(d) Subscriber is, and at all times since the Subscriber received a copy of the Disclosure Documents, was, a resident of and was offered the Common Shares in the jurisdiction set forth as the “Subscriber’s Address” under its signature on the face page of this Subscription Agreement; if the province of his or her principal residence, or the province of its principal office or principal place of business, changes, or his, her or its address changes in any other respect, before the consummation of his, her or its purchase of the Common Shares subscribed for under this Subscription Agreement, he, she or it will promptly notify the Corporation, and if the change in the province or his or her principal residence, or its principal office or principal place of business, is to a province in which an offer and/or sale of the Common Shares is prohibited by applicable law, any offer to sell Common Shares to him, her or it made before notification of the change in the province of his or her principal residence, or its principal office or principal place of business, shall be deemed retracted and he, she or it shall cease to be entitled to purchase Common Shares pursuant to such offer; and


(e) unless it is purchasing under paragraph 3(f), it is purchasing the Common Shares as principal for its own account, not for the benefit of any other person, for investment only and not with a view to the resale or distribution of all or any of the Common Shares, and it fully complies with one or more of the criteria set forth below:

 

  (i) it is resident in or otherwise subject to applicable securities laws of Alberta and it is an “accredited investor”, as such term is defined in Multilateral Instrument 45-103 - “Capital Raising Exemptions” of the Canadian Securities Administrators adopted under the Securities Act (Alberta) and has concurrently executed and delivered a Representation Letter in the form attached as Exhibit 1 to this Subscription Agreement and has initialled in Appendix ”A” thereto indicating that the Subscriber satisfies one of the categories of “accredited investor” set forth in such definition; or

 

  (ii) it is resident in or otherwise subject to applicable securities laws of Ontario , it is an “accredited investor” as defined in Ontario Securities Commission Rule 45-501 entitled “Exempt Distributions” promulgated under the Securities Act (Ontario) and has concurrently executed and delivered a Representation Letter in the form attached as Exhibit 2 to this Subscription Agreement and has initialled in Appendix ”A” thereto indicating that the Subscriber satisfies one of the categories of “accredited investor” set forth in such definition; or

 

  (iii) it is a resident of the United Kingdom and is a person of a kind described in Article 19 of the Financial Services and Markets Act 2000 (Financial Promotion ) Order 2001 and is a person whose ordinary activities involve it in acquiring, holding, managing or disposing of investments (as principal or agent) for the purpose of its business; and

 

(f) if it is not purchasing as a principal, it is duly authorized to enter into this Subscription Agreement and to execute and deliver all documentation in connection with the purchase on behalf of each beneficial purchaser, each of whom is purchasing as principal for its own account, not for the benefit of any other person, for investment only and not with a view to the resale or distribution of all or any of the Common Shares, it acknowledges that the Corporation is required by law to disclose to certain regulatory authorities the identity of each beneficial purchaser of Common Shares for whom it may be acting, and it and each beneficial purchaser is resident in the jurisdiction set out as the “Subscriber’s Address”, and:

 

  (i) if it is resident in or otherwise subject to applicable securities laws of Alberta , it is an “ accredited investor ” as defined in paragraphs (p) or (q) of the definition of “accredited investor” in Multilateral Instrument 45-103 (which definition is reproduced in the Appendix to Exhibit 1 attached hereto); provided, however that it is not a trust company or trust corporation registered under the laws of Prince Edward Island that is not registered under the Trust and Loan Companies Act (Canada) or under comparable legislation in another jurisdiction of Canada and has concurrently executed and delivered a Representation Letter in the form attached hereto as Exhibit 1 and has initialled Appendix ”A” thereto indicating that the Subscriber satisfies one of the categories of “accredited investor” set forth in paragraphs (p) or (q) of Appendix ”A” thereto; or

 

  (ii) subject to securities laws applicable to the Subscriber, if it is acting as agent for one or more disclosed principals, each of such principals is purchasing as principal for its own account, not for the benefit of any other person, for investment only, and not with a view to the resale or distribution of all or any of the Common Shares, and each of such principals complies with subparagraphs (i), (ii) or (iii) of paragraph 3(e) hereof as are applicable to it by virtue of its place of residence or by virtue of the securities laws of such place being applicable to the Subscriber; and

 

(g) if it is a resident of any jurisdiction referred to in the preceding paragraphs 3(e) or 3(f) but not purchasing thereunder, it is purchasing pursuant to an exemption from prospectus and registration requirements (particulars of which are enclosed herewith) available to it under applicable securities legislation and shall deliver to the Corporation and the Agent such further particulars of the exemption(s) and the Subscriber’s qualifications thereunder as the Corporation or the Agent or their respective counsel may request; and

 

(h) if it is a resident of or otherwise subject to applicable securities laws of any jurisdiction not referred to in the preceding paragraphs 3(e) or 3(f) it, or any beneficial purchaser for whom it is acting, complies with the requirements of all applicable securities legislation in the jurisdiction of its residence and will provide such evidence of compliance with all such matters as the Corporation or the Agent or their respective counsel may request; and

 

3


(i) Subscriber acknowledges that:

 

  (i) no securities commission or similar regulatory authority has reviewed or passed on the merits of the Common Shares or the adequacy or accuracy of the information set forth in any document provided to Subscriber; and

 

  (ii) there is no government or other insurance covering the Common Shares; and

 

  (iii) the Common Shares are a speculative investment that involves a high degree of risk of loss of entire investment; and

 

  (iv) there are substantial restrictions on the Subscriber’s ability to resell the Common Shares and it is the responsibility of the Subscriber to find out what those restrictions are and to comply with them before selling the Common Shares; and

 

  (v) the Corporation has advised the Subscriber that the Corporation is relying on an exemption from the requirements to provide the Subscriber with a prospectus and to sell securities through a person or company registered to sell securities under the Securities Act (Alberta) and other applicable securities laws and, as a consequence of acquiring Common Shares pursuant to this exemption, certain protections, rights and remedies provided by the Securities Act (Alberta) and other applicable securities laws, including statutory rights of rescission or damages, will not be available to the Subscriber; and

 

  (vi) the Common Shares shall not be resold until after the expiry of the applicable “hold” or “restricted” period attaching to such Common Shares under United States and Canadian laws, unless sold pursuant to an exemption under all applicable securities laws, and the certificates evidencing the Common Shares which it shall receive will bear a legend referring to such restrictions on resale and neither the Corporation nor any transfer agent of the Corporation will register any transfers of such Common Shares not made in compliance with such restrictions on resale; and

 

  (vii) the Common Shares have not been approved or disapproved by the United States Securities Exchange Commission (the “ SEC ”) or any state securities commission nor has the SEC or any state securities commission passed upon the accuracy or adequacy of any representations of the Corporation; any representation to the contrary is a criminal offense; and

 

(j) Subscriber is purchasing the Common Shares directly from the Corporation pursuant to one of the prospectus exemptions described in paragraphs 3(e), 3(f), 3(g) or 3(h), and:

 

  (i) Subscriber is authorized to consummate the purchase of the Common Shares, and

 

  (ii) Subscriber understands and acknowledges that the Common Shares have not been registered under the U.S. Securities Act of 1933 , as amended (the “ 1933 Act ”), or any applicable state securities laws. Accordingly, the Common Shares will be “restricted securities” within the meaning of Rule 144 under the 1933 Act, and therefore may not be offered or sold by it, directly or indirectly, in the United States without registration under United States federal and, if not preempted, state securities laws, except in compliance with paragraph 3(j)(v) and, the Subscriber understands that the certificates representing the Common Shares issued to it will contain a legend in respect of such restrictions which is set out in paragraph 3(j)(vi) below; and

 

  (iii) Subscriber has received, for its information only, a copy of this Subscription Agreement and a copy of each of the Disclosure Documents and has been offered the opportunity to ask questions and receive answers concerning the terms and conditions of the Offering and to obtain any information the Subscriber deems necessary to verify the accuracy of any information regarding the Corporation; and has had access to such additional information, if any, concerning the Corporation as it has considered necessary in connection with its investment decision to invest in the Common Shares; and

 

  (iv) Subscriber has a pre-existing personal or business relationship with the Corporation or one of its officers, directors or controlling persons, or by reason of the Subscriber’s business or financial experience, that it has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the Common Shares and is able to bear the economic risks of such investment and can be reasonably assumed to have the capacity to protect his, her or its own interests in connection with the transaction contemplated by this Subscription Agreement; and

 

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  (v) Subscriber agrees that if it decides to offer, sell or otherwise transfer any of the Common Shares, it will not offer, sell or otherwise transfer any of such Common Shares, directly or indirectly, except: (A) to the Corporation, (B) outside the United States in accordance with Rule 903 or 904 of Regulation S under the 1933 Act, and in compliance with applicable local laws and regulations, (C) inside or outside the United States after one year pursuant to the exemption from registration under the 1933 Act provided by Rule 144 thereunder, (D) to a person it reasonably believes is a “qualified institutional buyer” (as defined in Rule 144A under the 1933 Act) purchasing for its own account or for the account of a qualified institutional buyer in a transaction meeting the requirements of Rule 144A, (E) inside the United States, in any other transaction exempt from registration under the 1933 Act and, in any event, in compliance with any applicable state securities laws of the United States, provided that prior to any transfer pursuant to this clause (E), the Corporation may require a legal opinion reasonably satisfactory to the Corporation that such transfer is exempt from registration under the 1933 Act and applicable state securities laws, and, in each instance, in compliance with any applicable state securities laws of the United States or (F) pursuant to a registration statement effective under the 1933 Act and covering such offer, sale and transfer; and

 

  (vi) Subscriber understands that upon the original issuance thereof, and until such time as the same is no longer required under applicable requirements of the 1933 Act or state securities laws, the certificates representing the Common Shares, and all certificates issued in exchange therefor or in substitution thereof, shall bear on the face of such certificates the following legend:

 

THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”) OR STATE SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF GASTAR EXPLORATION LTD. THAT SUCH SECURITIES MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO GASTAR EXPLORATION LTD., (B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 903 OR 904 OF REGULATION S UNDER THE U.S. SECURITIES ACT, (C) INSIDE OR OUTSIDE THE UNITED STATES, PURSUANT TO THE EXEMPTION FROM REGISTRATION UNDER THE U.S. SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER, (D) TO A PERSON THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE U.S. SECURITIES ACT) PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, OR (E) PURSUANT TO A REGISTRATION STATEMENT EFFECTIVE UNDER THE U.S. SECURITIES ACT AND COVERING SUCH OFFER, SALE OR TRANSFER (IT BEING UNDERSTOOD THAT THE ISSUER SHALL BE UNDER NO OBLIGATION TO FILE SUCH REGISTRATION STATEMENT). HEDGING TRANSACTIONS INVOLVING THE SECURITIES REPRESENTED HEREBY MAY NOT BE CONDUCTED EXCEPT IN COMPLIANCE WITH THE U.S. SECURITIES ACT;

 

provided , that if Common Shares are being sold in compliance with the requirements of Rule 144 under the 1933 Act or pursuant to an effective registration statement under the 1933 Act, the above legend may be removed by delivery of (i) an opinion of counsel of recognized standing reasonably satisfactory to the Corporation to the effect that such Common Shares held by it are being sold pursuant to Rule 144 of the 1933 Act or pursuant to an effective registration statement under the 1933 Act, as the case may be, and (ii) such other documentation reasonably requested by the Corporation or its transfer agent;

 

provided , further , that if (i) it is not an “affiliate” (as defined in Rule 405 under the 1933 Act) of the Corporation, (ii) it has not been such an affiliate in the preceding three months, and (iii) at least two years (or such shorter period as may be permitted under Rule 144(k) or any successor rule) have elapsed since the later of the date the Common Shares were acquired from the Corporation or from an affiliate of the Corporation, then the above legend may be removed from any certificates representing such Common Shares held by it by delivery to the Corporation of an opinion of counsel of recognized standing reasonably satisfactory to the Corporation, to the effect that any such Common Shares held by it may be sold pursuant to Rule 144(k) (or any successor rule) of the 1933 Act and such legend is no longer required under applicable requirements of the 1933 Act or state securities laws;

 

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and the Corporation shall use its reasonable best efforts to cause the registrar and transfer agent of the Corporation to remove the foregoing U.S. legend within three business days (excluding weekends and holidays) of receipt of the foregoing, as applicable; and

 

  (vii) each certificate representing the Common Shares will carry a legend, and any ownership statement issued under a direct registration system or other electronic book-entry system acceptable to the applicable Canadian securities regulator will bear a legend restriction notation, stating “Unless permitted under securities legislation, the holder of this security must not trade the security before [insert the date that is 4 months and a day after the Closing Date.] ”; and

 

  (viii) Subscriber is acquiring the Common Shares as principal for its own account for investment, and not with a view to any resale, distribution or other disposition of the Common Shares, in violation of United States securities laws; the Subscriber has no contract, undertaking, agreement or arrangement with any person to sell, transfer, assign or pledge to such person or anyone else all or any part of the Common Shares for which the Subscriber hereby subscribes, and the Subscriber has no plans or intentions to enter into any such contract, undertaking or arrangement; and

 

  (ix) Subscriber has read, is fully familiar with, and completely understands, the Disclosure Documents and any other documents and information which he, she or it deems material to making an investment decision with respect to the Common Shares; and

 

  (x) the financial condition of the Subscriber is such that he, she or it has no need for liquidity with respect to his, her or its investment in the Common Shares to satisfy any existing or contemplated undertaking or indebtedness, and he, she or it has no need for a current return on his, her or its investment in the Common Shares; he, she or it is able to bear the economic risk of his, her or its investment in the Common Shares for an indefinite period of time, including the risk of losing all of his, her or its investment, and the loss of his, her or its entire investment in the Common Shares would not materially adversely affect the standard of living of the Subscriber or his or her family; and

 

  (xi) all information that the Subscriber has provided in this Subscription Agreement concerning the Subscriber and his, her or its financial condition is correct and complete as of the date set forth below, and if there should be any material change in such information prior to the acceptance of the Subscriber’s subscription for the Common Shares subscribed for under this Subscription Agreement, the Subscriber will immediately so notify the Corporation; and

 

(k) Subscriber understands and acknowledges that the certificates representing the Common Shares will also bear a legend that the securities cannot be traded through the facilities of stock exchanges in Canada since the certificate is not freely transferable and consequently is not “good delivery” in transactions on such stock exchanges unless on or prior to such trade, arrangements have been made to remove the legends as provided in the provisos of paragraph 3(j)(vi) hereof, and it acknowledges that such stock exchanges would deem the selling security holder to be responsible for any loss incurred on a sale made by such security holder in such securities; and

 

(l) Subscriber understands and acknowledges that the Corporation has the right to instruct the transfer agent for the Common Shares not to record a transfer by any person in the United States without first being notified by the Corporation that it is satisfied that such transfer is exempt from or not subject to registration under the 1933 Act and any applicable state securities laws; and

 

(m) Subscriber acknowledges that it has not purchased the Common Shares as a result of any general solicitation or general advertising, as such terms are defined in Regulation D under the 1933 Act, including, without limitation, advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and

 

(n) except as provided herein, no person has made to the Subscriber any written or oral representation:

 

  (i) that any person will resell or repurchase the Common Shares;

 

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  (ii) that any person will refund the purchase price of the Common Shares; or

 

  (iii) as to the future price or value of the Common Shares; and

 

(o) Subscriber understands and acknowledges that the Corporation (i) is not presently, nor is the Corporation under any obligation to become, a “foreign private issuer”, as such term is defined in Regulation S of the 1933 Act, and (ii) because the Corporation is not a foreign private issuer, the 1933 Act restricts the offer, sale or transfer of the Common Shares both within and outside of the United States, as set forth in this Subscription Agreement; and

 

(p) if a corporation, partnership, unincorporated association or other entity, Subscriber has the legal capacity to enter into and be bound by this Subscription Agreement and further certifies that all necessary approvals of directors, shareholders or otherwise have been given and obtained; and

 

(q) this Subscription Agreement has been duly and validly authorized, executed and delivered by and constitutes a legal, valid, binding and enforceable obligation of the Subscriber; and

 

(r) in the case of a subscription by Subscriber for Common Shares acting as agent for a disclosed principal, it is duly authorized to execute and deliver this Subscription Agreement and all other necessary documentation in connection with such subscription on behalf of such principal and this Subscription Agreement has been duly authorized, executed and delivered by or on behalf of, and constitutes a legal, valid, binding and enforceable agreement of, such principal; and

 

(s) except for the representations and warranties made by the Corporation in this Agreement and the Subscriber’s review of the Disclosure Documents, Subscriber has relied solely upon publicly available information relating to the Corporation and not upon any verbal or written representation as to fact or otherwise made by or on behalf of the Corporation; and

 

(t) Subscriber acknowledges that the Corporation’s counsel and the Agent’s counsel are acting as counsel to the Corporation and the Agent, respectively, and not as counsel to the Subscriber; and

 

(u) Subscriber understands, acknowledges and is aware that the Common Shares are being offered for sale only on a “private placement” basis and that the sale and delivery of the Common Shares is conditional upon such sale being exempt from the requirements under applicable securities legislation as to the filing of a prospectus or delivery of an offering memorandum or upon the issuance of such orders, consents or approvals as may be required to permit such sale without the filing of a prospectus or delivering an offering memorandum and, as a consequence (i) it is restricted from using most of the civil remedies available under securities legislation; (ii) it may not receive information that would otherwise be required to be provided to it under securities legislation; and (iii) the Corporation is relieved from certain obligations that would otherwise apply under securities legislation; and

 

(v) if required by applicable securities legislation, regulations, rules, policies or orders or by any securities commission, stock exchange or other regulatory authority, the Subscriber will execute, deliver, file and otherwise assist the Corporation in filing, such reports, undertakings and other documents with respect to the issue of the Common Shares, including, without limitation: (i) in the case of an accredited investor resident in or otherwise subject to applicable securities laws of Alberta a Representation Letter in the form attached as Exhibit 1 ; and (ii) in the case of an accredited investor resident in or otherwise subject to applicable securities laws of Ontario , a Representation Letter in the form attached as Exhibit 2 ; and

 

(w) the acquisition of the Common Shares hereunder by the Subscriber will not result in the Subscriber becoming a “control person”, as defined under applicable securities laws; and

 

(x) the entering into of this Subscription Agreement and the completion of the transactions contemplated hereby do not and will not result in a violation of any of the terms or provisions of any law applicable to the Subscriber, or if the Subscriber is not a natural person, any of the Subscriber’s constating documents, or any agreement to which the Subscriber is a party or by which it is bound; and

 

(y) the Subscriber acknowledges that it has been encouraged to obtain independent legal, income tax and investment advice with respect to its subscription for the Common Shares and accordingly, has had the opportunity to acquire an understanding of the meanings of all terms contained herein relevant to the Subscriber for purposes of giving representations, warranties and covenants under this Subscription Agreement.

 

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Representations and Warranties of the Corporation

 

4. The Corporation represents and warrants, as of the date of this Subscription Agreement and the Closing Date, to the Subscriber, that:

 

(a) Each of the Corporation and its subsidiaries is a corporation, limited liability company, partnership or other entity and is duly organized and validly existing in good standing under the laws of the jurisdiction in which it is organized, and is duly qualified to do business as a foreign corporation in all jurisdictions in which the failure to be so qualified would materially and adversely affect the business or financial condition, properties or operations of the Corporation. Each of the Corporation and its subsidiaries has all requisite corporate, partnership, limited liability company or other organizational power and authority (i) to own and lease the properties and assets it currently owns and leases (if any) and it contemplates owning and leasing and (ii) to conduct its activities as such activities (if any) are currently conducted and as currently contemplated to be conducted.

 

(b) As of the date of this Subscription Agreement, the authorized capital of the Corporation consists of an unlimited number of Common Shares and preferred shares, of which as of the date of this Subscription Agreement 119,326,298 Common Shares and no preferred shares are issued and outstanding, 16,934,600 Common Shares are reserved for issuance pursuant to the Corporation’s share option, restricted shares and share purchase plans; and 11,846,603 Common Shares are issuable and reserved for issuance pursuant to securities exercisable or exchangeable for, or convertible into, Common Shares. All of such outstanding or issuable shares have been, or upon issuance will be, validly issued and are, or upon issuance will be, fully paid and nonassessable.

 

(c) The Corporation has duly authorized the issuance and sale of the Common Shares in accordance with the terms of this Agreement. This Agreement constitutes a valid and legally binding obligation of the Corporation, enforceable in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies, and (iii) to the extent the indemnification provisions contained herein may be limited by applicable federal or state securities laws.

 

(d) The Common Shares, when issued and paid for in accordance with this Subscription Agreement, will represent validly authorized, duly issued and fully paid and nonassessable Common Shares of the Corporation, and the issuance thereof will not conflict with the organizational documents of the Corporation.

 

(e) The execution and delivery of this Agreement, the fulfillment of the terms set forth herein and the consummation of the transactions contemplated hereby will not conflict with, or constitute a breach of or default under, any agreement, indenture or instrument by which the Corporation is bound or any law, administrative rule, regulation or decree of any court or any governmental body or administrative agency applicable to the Corporation.

 

(f) As of the date of this Subscription Agreement, the Disclosure Documents do not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

 

(g) Subsequent to the dates as of which information is given in the Disclosure Documents, except as described therein, there has not been any material adverse change with regard to the assets or properties, results of operations or financial condition of the Corporation.

 

(h) Other than as publicly disclosed by the Corporation, there is no litigation or governmental or other proceeding or investigation at law or in equity before any court or before any federal, provincial, state, municipal or other governmental or public department, commission, board, agency or body, domestic or foreign, pending or, to the Corporation’s knowledge, threatened (and the Corporation does not know of any basis therefor) against, or involving the assets, property or business of, the Corporation or any of its subsidiaries, nor are there any matters under discussion with any governmental authority relating to taxes, governmental charges or assessments asserted by any such authority that would materially adversely affect the value or the operation of such assets or properties or the business, results of operations, prospects or condition (financial or otherwise) of the Corporation and its subsidiaries, taken as a whole.

 

(i) To the knowledge of the Corporation, no securities commission, stock exchange or comparable authority has issued any order preventing the issue and sale of the Common Shares nor instituted proceedings for that purpose, and, to the knowledge of the Corporation, no such proceedings are pending or contemplated.

 

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(j) The Corporation is, and has been for the four months immediately preceding the Closing Date, a reporting issuer not in default of any requirement under the securities laws, regulations, rules, orders and policies applicable in British Columbia, Alberta, Manitoba, Ontario, Quebec and Nova Scotia (the “ Canadian Securities Laws ”) . The Corporation is in compliance with all timely disclosure obligations under applicable Canadian Securities Laws, and none of the documents filed by or on behalf of the Corporation pursuant to such Canadian Securities Laws contains a misrepresentation at the date of the filing thereof.

 

(k) The first trade of the Common Shares purchased by the Subscriber is exempt from the prospectus requirements of the Canadian Securities Laws so long as:

 

  (i) at least four months have elapsed from the Closing Date;

 

  (ii) the trade is not a control distribution (as defined in Multilateral Instrument 45-102 promulgated under the securities laws of each Canadian jurisdiction other than Quebec);

 

  (iii) no unusual effort is made to prepare the market or to create a demand for the security that is the subject of the trade;

 

  (iv) no extraordinary commission or consideration is paid to a person or company in respect of the trade; and

 

  (v) if the selling security holder is an insider or officer of the issuer, the selling security holder has no reasonable grounds to believe that the issuer is in default of securities legislation.

 

(l) The Corporation will continue to be a reporting issuer under applicable Canadian Securities Laws until that date that is four months and a day after the Closing Date.

 

(m) Assuming the accuracy of the representations and warranties of the Subscriber set forth in this Agreement, the offer, issuance and delivery of the Common Shares are exempt from the prospectus and dealer registration requirements of the relevant securities laws, [and are exempt from or not subject to the registration requirements of the 1933 Act] .

 

(n) The Common Shares will, prior to issuance, be conditionally listed for trading on the Toronto Stock Exchange.

 

Resale Commitments

 

5. The Corporation will use its reasonable commercial efforts to file a registration statement (the “ Registration Statement ”) on proper form with the SEC covering the resale of all Common Shares that are restricted under the 1933 Act within 90 days of the Closing Date. The Corporation shall use its reasonable commercial efforts to cause the Registration Statement to be declared effective within 180 days of the Closing Date. The Corporation shall cause the Registration Statement to remain effective until the earlier of (i) 30 days after all the Common Shares have been sold under the Registration Statement, or (ii) one year from the Closing Date.

 

6. The Subscriber acknowledges and agrees that, if it chooses to avail itself of the use of the Registration Statement it will, upon request of the Corporation, timely furnish to the Corporation for use and publication in the Registration Statement all selling shareholder information required to be included in the Registration Statement, and the Subscriber will advise the Corporation whenever such information is incorrect and will furnish updated information. The Subscriber acknowledges that failure to timely provide such information, and to keep such information updated, will excuse the Corporation from maintaining or filing the Registration Statement for the benefit of such Subscriber. The Subscriber agrees to indemnify and hold harmless the Corporation, its respective officers, directors, partners, employees, representatives and agents, or any controlling persons (any such person referred to hereinafter shall be referred to as an “ Indemnified Holder ”), against any losses, claims, damages or liabilities to which such Indemnified Holder may become subject under the 1933 Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions or proceedings in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in any information furnished by the Subscriber for use in the Registration Statement or related prospectus, or any amendment or supplement thereto or any related preliminary prospectus or (ii) the omission or alleged omission to state therein a material fact required to be included in such information requested by the Corporation or necessary to make such information not misleading, in the light of the circumstances under which such information is furnished.

 

7. The Subscriber acknowledges that if the Registration Statement is declared effective (i) the Corporation shall be under no obligation to arrange an underwriting or otherwise assist in providing for any proposed sales of Common Shares covered by

 

9


the Registration Statement and (ii) in order to update the Registration Statement with periodic information or material non-public information as required by the 1933 Act, the effectiveness of the Registration Statement, and the ability of the Subscriber to effect sales of Common Shares covered thereby, will be periodically suspended from time to time upon notice to the holders of Common Shares. The Corporation shall not be required to specify in any notice to the nature of the event giving rise to the suspension. The Corporation will use its reasonable efforts to limit these suspended periods to those required by the 1933 Act.

 

8. The Corporation shall maintain its Common Shares as listed for trading on the Toronto Stock Exchange for one year after the Closing Date.

 

Closing

 

9. The Subscriber agrees to deliver to the Agent, not later than 12:00 p.m. (Houston Texas time) on the day that is two business days before the Closing Date: (a) this duly completed and executed Subscription Agreement; and (b) if the Subscriber is an “accredited investor” a fully executed and completed Representation Letter in the form of Exhibit 1 , in the case of an Alberta subscriber, and in the form of Exhibit 2 , in the case of an Ontario subscriber.

 

10. Subscriber acknowledges that its obligation to purchase the Common Shares hereunder is not conditioned upon the issuance of senior secured notes described in Exhibit 4 hereto or the consummation of the proposed Geostar acquisition described in the Disclosure Documents. Subscriber acknowledges that it has made its investment decision to purchase the Common Shares, assuming that one or both such transactions may not close or, if pursued by the Corporation, such transactions may close on terms that are materially different than previously disclosed. Subscriber acknowledges that the terms and existence of the proposed senior secured notes financing described in Exhibit 4 are confidential non-public information concerning the Corporation, which should not be publicly disclosed by Subscriber. The Corporation agrees that, in the event it closes a debt transaction or series of debt transactions as an alternative to the senior secured notes transaction described on Exhibit 4 hereto, it will not in connection with the alternative debt transaction or series of alternative debt transactions, without the consent of subscribers holding a majority of the Common Shares issued pursuant to this Subscription Agreement and similar subscription agreements for Common Shares issued on the Closing Date, issue or commit to issue, within a period of 18 months from the Closing Date, a number of Common Shares or any other equity securities, having an aggregate equity value in excess of that which would have been issued under the proposed senior secured notes transaction described in Exhibit 4.

 

11. The sale of the Common Shares pursuant to this Subscription Agreement will be completed at the offices of Vinson & Elkins L.L.P., the Corporation’s counsel, in Houston, Texas at 10:00 a.m. or such other time as the Corporation and the Subscriber may agree (the “ Closing Time ”) on June      , 2005 or such other date as the Corporation and the Subscriber may agree (the “ Closing Date ”).

 

12. At or prior to the Closing Time, the Corporation will deliver to the Subscriber, or the Subscriber’s custodian as directed by the Subscriber, a certificate representing the Common Shares to be purchased by the Subscriber, registered in the manner as set forth on the face page of this Subscription Agreement, which certificate will be held in escrow by the Subscriber or its custodian pending completion of the sale. Following receipt of the certificate referred to in the previous sentence, the Subscriber will, at the Closing Time, pay for the Common Shares by wire transfer of immediately available funds.

 

13. The Corporation shall be entitled to rely on delivery of a facsimile copy of executed Subscription Agreements, and acceptance by the Corporation of such facsimile subscriptions shall be legally effective to create a valid and binding agreement between the Subscriber and the Corporation in accordance with the terms hereof. In addition, this Subscription Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which shall constitute one and the same document.

 

General

 

14. The Subscriber agrees that the representations, warranties and covenants of the Subscriber herein will be true and correct both as of the execution of this Subscription Agreement and as of the Closing Time and will survive the completion of the issuance of the Common Shares. The representations, warranties and covenants of the Subscriber herein are made with the intent that they be relied upon by the Corporation and the Agent and their respective counsel in determining the eligibility of a purchaser of Common Shares and the Subscriber agrees to indemnify and hold harmless the Corporation and the Agent and their respective affiliates, shareholders, directors, officers, partners, employees and agents, from and against all losses, claims, costs, expenses and damages or liabilities whatsoever which any of them may suffer or incur which are caused or arise from a breach thereof. The Subscriber undertakes to immediately notify the Corporation at Gastar Exploration Ltd., 888, 900 – 6 th Avenue S.W., Calgary, Alberta, T2P 3K2, Attention: Sara-Lane Sirey, Corporate Secretary (Fax Number: (403) 237-6518) of any change in any statement or other information relating to the Subscriber set forth herein which takes place prior to the Closing Time.

 

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15. The Subscriber acknowledges that the Agent has agreed to offer the Common Shares on a best efforts marketed “private placement” basis and, in connection therewith, the Corporation has entered into, or will enter into prior to the Closing Date, an agreement pursuant to which the Agent, in connection with the issue and sale of the Common Shares, will receive a fee from the Corporation.

 

16. The Subscriber acknowledges that this Subscription Agreement and the Exhibits hereto require the Subscriber to provide certain personal information to the Corporation. Such information is being collected by the Corporation for the purposes of completing the Offering, which includes, without limitation, determining the Subscriber’s eligibility to purchase the Common Shares under applicable securities legislation, preparing and registering certificates representing Common Shares to be issued to the Subscriber and completing filings required by any stock exchange or securities regulatory authority. The Subscriber’s personal information may be disclosed by the Corporation to: (a) stock exchanges or securities regulatory authorities; (b) the Corporation’s registrar and transfer agent; and (c) any of the other parties involved in the Offering, including legal counsel, and may be included in record books in connection with the Offering. By executing this Subscription Agreement, the Subscriber is deemed to be consenting to the foregoing collection, use and disclosure of the Subscriber’s personal information. The Subscriber also consents to the filing of copies or originals of any of the Subscriber’s documents described in paragraph 9 hereof as may be required to be filed with any stock exchange or securities regulatory authority in connection with the transactions contemplated hereby.

 

17. The Subscriber represents and warrants that the funds representing the Aggregate Subscription Price which will be advanced by the Subscriber to the Corporation hereunder will not represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) Act (Canada) (the “ PCMLA ”), and the Subscriber acknowledges that the Corporation may in the future be required by law to disclose the Subscriber’s name and other information relating to this Subscription Agreement and the Subscriber’s subscription hereunder, on a confidential basis, pursuant to the PCMLA. To the best of its knowledge (a) none of the subscription funds to be provided by the Subscriber (i) have been or will be derived from or related to any activity that is deemed criminal under the law of Canada, the United States of America, or any other jurisdiction, or (ii) are being tendered on behalf of a person or entity who has not been identified to the Subscriber, and (b) it shall promptly notify the Corporation if the Subscriber discovers that any of such representations ceases to be true, and to provide the Corporation with appropriate information in connection therewith.

 

18. The obligations of the parties hereunder are subject to acceptance of the terms of the Offering by the Toronto Stock Exchange and all other required regulatory approvals.

 

19. The Subscriber acknowledges and agrees that all costs incurred by the Subscriber (including any fees and disbursements of any special counsel retained by the Subscriber) relating to the sale of the Common Shares to the Subscriber shall be borne by the Subscriber.

 

20. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, without regard to the principles of conflicts of law thereof that would require the application of the laws of any jurisdiction other than Texas.

 

21. This Subscription Agreement represents the entire agreement of the parties hereto relating to the subject matter hereof and there are no representations, covenants or other agreements relating to the subject matter hereof except as stated or referred to herein.

 

22. The terms and provisions of this Subscription Agreement shall be binding upon and enure to the benefit of the Subscriber and the Corporation and their respective heirs, executors, administrators, successors and assigns; provided that, except for the assignment by a Subscriber who is acting as nominee or agent for the beneficial owner and as otherwise herein provided, this Subscription Agreement shall not be assignable by any party without prior written consent of the other parties.

 

23. The Subscriber, on its own behalf and, if applicable, on behalf of others for whom it is contracting hereunder, agrees that this subscription is made for valuable consideration and may not be withdrawn, cancelled, terminated or revoked by the Subscriber, on its own behalf and, if applicable, on behalf of others for whom it is contracting hereunder.

 

24. Neither this Subscription Agreement nor any provision hereof shall be modified, changed, discharged or terminated except by an instrument in writing signed by the party against whom any waiver, change, discharge or termination is sought.

 

25. The invalidity, illegality or unenforceability of any provision of this Subscription Agreement shall not affect the validity, legality or enforceability of any other provision hereof.

 

11


26. The headings used in this Subscription Agreement have been inserted for convenience of reference only and shall not affect the meaning or interpretation of this Subscription Agreement or any provision hereof.

 

27. The covenants, representations and warranties contained herein shall survive the closing of the transactions contemplated hereby.

 

28. In this Subscription Agreement (including the Exhibits hereto) all references to dollar amounts are to United States dollars, unless otherwise indicated.

 

12


EXHIBIT 1

 

REPRESENTATION LETTER

 

(FOR ALBERTA ACCREDITED INVESTORS)

 

TO:   Gastar Exploration Ltd. (the “Corporation”)
AND TO:   Westwind Partners Inc. (the “Agent”)

 

In connection with the purchase of common shares of the Corporation (the “ Common Shares ”) by the undersigned subscriber or, if applicable, the principal on whose behalf the undersigned is purchasing as agent (the “ Subscriber ” for the purposes of this Exhibit 1), the Subscriber hereby represents, warrants, covenants and certifies to the Corporation and the Agent that:

 

1. The Subscriber is resident in Alberta or is otherwise subject to applicable securities laws of the Province of Alberta;

 

2. The Subscriber is purchasing the Common Shares as principal for its own account or complies with the provisions of paragraph 3(f)(i) of the Subscription Agreement;

 

3. The Subscriber is an “accredited investor” within the meaning of Multilateral Instrument 45-103 entitled “Capital Raising Exemptions” by virtue of satisfying the indicated criterion as set out in Appendix “A” to this Representation Letter; and

 

4. Upon execution of this Exhibit 1 by the Subscriber, this Exhibit 1 shall be incorporated into and form a part of the Subscription Agreement.

 

Dated:                      , 2005

 

 


Print name of Subscriber

By:

 

 


   

Signature

 


Print name of Signatory (if different from Subscriber)

 


Title

 

IMPORTANT: PLEASE INITIAL THE APPLICABLE PROVISION IN

APPENDIX “A” ON THE NEXT PAGES


APPENDIX “A”

 

TO EXHIBIT 1

 

NOTE: THE INVESTOR MUST INITIAL BESIDE THE APPLICABLE PORTION OF THE DEFINITION BELOW.

 

Accredited Investor - (defined in Multilateral Instrument 45-103) means:

 

_________   (a)   a Canadian financial institution, or an authorized foreign bank listed in Schedule III of the Bank Act (Canada); or
_________   (b)   the Business Development Bank of Canada incorporated under the Business Development Bank of Canada Act (Canada); or
_________   (c)   an association under the Cooperative Credit Associations Act (Canada) located in Canada or a central cooperative credit society for which an order has been made under subsection 473(1) of that Act; or
_________   (d)   a subsidiary of any person or company referred to in paragraphs (a) to (c), if the person or company owns all of the voting securities of the subsidiary, except the voting securities required by law to be owned by directors of that subsidiary; or
_________   (e)   a person or company registered under the securities legislation of a jurisdiction of Canada, as an adviser or dealer, other than a limited market dealer registered under the Securities Act (Ontario) or the Securities Act (Newfoundland and Labrador); or
_________   (f)   an individual registered or formerly registered under the securities legislation of a jurisdiction of Canada, as a representative of a person or company referred to in paragraph (e); or
_________   (g)   the government of Canada or a jurisdiction of Canada, or any crown corporation, agency or wholly-owned entity of the government of Canada or a jurisdiction of Canada; or
_________   (h)   a municipality, public board or commission in Canada; or
_________   (i)   any national, federal, state, provincial, territorial or municipal government of or in any foreign jurisdiction, or any agency of that government; or
_________   (j)   a pension fund that is regulated by either the Office of the Superintendent of Financial Institutions (Canada) or a pension commission or similar regulatory authority of a jurisdiction of Canada; or
_________   (k)   an individual who, either alone or with a spouse, beneficially owns, directly or indirectly, financial assets having an aggregate realizable value that before taxes, but net of any related liabilities, exceeds $1,000,000; or
_________   (l)   an individual whose net income before taxes exceeded $200,000 in each of the two most recent years or whose net income before taxes combined with that of a spouse exceeded $300,000 in each of the two most recent years and who, in either case, reasonably expects to exceed that net income level in the current year; or
    (Note: if individual accredited investors wish to purchase through wholly-owned holding companies or similar entities, such purchasing entities must qualify under section (t) below, which must be initialled.)
_________   (m)   a person or company, other than a mutual fund or non-redeemable investment fund, that, either alone or with a spouse, has net assets of at least $5,000,000 and unless the person or company is an individual, that amount is shown on its most recently prepared financial statements; or


_________   (n)   a mutual fund or non-redeemable investment fund that, in the local jurisdiction, distributes its securities only to persons or companies that are accredited investors (as defined in Multilateral Instrument 45-103); or

_________

  (o)   a mutual fund or non-redeemable investment fund that, in the local jurisdiction, is distributing or has distributed its securities under one or more prospectuses for which the regulator has issued receipts; or
_________   (p)   a trust company or trust corporation registered or authorized to carry on business under the Trust and Loan Companies Act (Canada) or under comparable legislation in a jurisdiction of Canada or a foreign jurisdiction, trading as a trustee or agent on behalf of a fully managed account; or
_________   (q)   a person or company trading as agent on behalf of a fully managed account if that person or company is registered or authorized to carry on business under the securities legislation of a jurisdiction of Canada or a foreign jurisdiction as a portfolio manager or under an equivalent category of adviser or is exempt from registration as a portfolio manager or the equivalent category of adviser; or
_________   (r)   a registered charity under the Income Tax Act (Canada) that, in regard to the trade, has obtained advice from an eligibility adviser or other adviser registered to provide advice on the securities being traded; or
_________   (s)   an entity organized in a foreign jurisdiction that is analogous to any of the entities referred to in paragraphs (a) through (e) and paragraph (j) in form and function; or
_________   (t)   a person or company in respect of which all of the owners of interests, direct or indirect, legal or beneficial, except the voting securities required by law to be owned by directors, are persons or companies that are accredited investors (as defined in Multilateral Instrument 45-103).

 

For the purposes hereof:

 

(a) control person ” has the meaning ascribed to that term in securities legislation;

 

(b) designated securities ” means:

 

  (i) voting securities,

 

  (ii) securities that are not debt securities and that carry a residual right to participate in the earnings of the issuer or, on the liquidation or winding-up of the issuer, in its assets, or

 

  (iii) securities convertible, directly or indirectly, into securities described in paragraph (i) or (ii);

 

(c) eligibility adviser ” means an investment dealer or equivalent category of registration, registered under the securities legislation of the jurisdiction of a purchaser and authorized to give advice with respect to the type of security being distributed;

 

(d) financial assets ” means cash and securities;

 

(e) foreign jurisdiction ” means a country other than Canada or a political subdivision of a country other than Canada;

 

(f) fully managed account ” means an account for which a person or company makes the investment decisions if that person or company has full discretion to trade in securities for the account without requiring the client’s express consent to a transaction;

 

(g) jurisdiction ” means a province or territory of Canada except when used in the term foreign jurisdiction;

 

(h) local jurisdiction ” means the jurisdiction in which the Canadian securities regulatory authority is situate;

 

(i) non-redeemable investment fund” means an issuer,

 

2


  (i) where contributions of securityholders are pooled for investment,

 

  (ii) where securityholders do not have day-to-day control over the management and investment decisions of the issuer, whether or not they have the right to be consulted or to give directions, and

 

  (iii) whose securities do not entitle the securityholder to receive on demand, or within a specified period after demand, an amount computed by reference to the value of a proportionate interest in the whole or in part of the net assets of the issuer;

 

(j) regulator ” means, for the local jurisdiction, the Executive Director as defined under securities legislation of the local jurisdiction; and

 

(k) related liabilities ” means

 

  (i) liabilities incurred or assumed for the purpose of financing the acquisition or ownership of financial assets, or

 

  (ii) liabilities that are secured by financial assets.

 

All monetary references are in Canadian Dollars.

 

3


EXHIBIT 2

 

REPRESENTATION LETTER

 

(FOR ONTARIO ACCREDITED INVESTORS)

 

TO:   Gastar Exploration Ltd. (the “Corporation”)
AND TO:   Westwind Partners Inc. (the “Agent”)

 

In connection with the purchase of common shares of the Corporation (the “ Common Shares ”) by the undersigned subscriber or, if applicable, the principal on whose behalf the undersigned is purchasing as agent (the “ Subscriber ” for the purposes of this Exhibit 2), the Subscriber hereby represents, warrants, covenants and certifies to the Corporation and the Agent that:

 

1. The Subscriber is resident in Ontario or is otherwise subject to applicable securities laws of the Province of Ontario;

 

2. The Subscriber is purchasing the Common Shares as principal for its own account;

 

3. The Subscriber is an “accredited investor” within the meaning of Ontario Securities Commission Rule 45-501 promulgated under the Securities Act (Ontario) by virtue of satisfying the indicated criterion as set out in Appendix “A” to this Representation Letter; and

 

4. Upon execution of this Exhibit 2 by the Subscriber, this Exhibit 2 shall be incorporated into and form a part of the Subscription Agreement.

 

Dated:                      , 2005

 

 


Print name of Subscriber

By:

 

 


   

Signature

 


Print name of Signatory (if different from Subscriber)

 


Title

 

IMPORTANT: PLEASE INITIAL THE APPLICABLE PROVISION IN

APPENDIX “A” ON THE NEXT PAGES


APPENDIX “A”

 

TO EXHIBIT 2

 

NOTE: THE INVESTOR MUST INITIAL BESIDE THE APPLICABLE PORTION OF THE DEFINITION BELOW.

 

Accredited Investor - (defined in Ontario Securities Commission Rule 45-501) means:

 

_________   (a)    a bank listed in Schedule I or II of the Bank Act (Canada), or an authorized foreign bank listed in Schedule III of the Bank Act (Canada);
_________   (b)    the Business Development Bank incorporated under the Business Development Bank Act (Canada);
_________   (c)    a loan corporation or trust corporation registered under the Loan and Trust Corporations Act (Ontario) or under the Trust and Loan Companies Act (Canada), or under comparable legislation in any other jurisdiction;
_________   (d)    a co-operative credit society, credit union central, federation of caisses populaires, credit union or league, or regional caisse populaire, or an association under the Cooperative Credit Associations Act (Canada), in each case, located in Canada;
_________   (e)    a company licensed to do business as an insurance company in any jurisdiction;
_________   (f)    a subsidiary entity of any person or company referred to in paragraph (a), (b), (c), (d) or (e), where the person or company owns all of the voting shares of the subsidiary entity;
_________   (g)    a person or company registered under the Securities Act (Ontario) or securities legislation in another jurisdiction as an adviser or dealer, other than a limited market dealer;
_________   (h)    the government of Canada or of any jurisdiction, or any crown corporation, instrumentality or agency of a Canadian federal, provincial or territorial government;
_________   (i)    any Canadian municipality or any Canadian provincial or territorial capital city;
_________   (j)    any national, federal, state, provincial, territorial or municipal government of or in any foreign jurisdiction, or any instrumentality or agency thereof;
_________   (k)    a pension fund that is regulated by either the Office of the Superintendent of Financial Institutions (Canada) or a provincial pension commission or similar regulatory authority;
_________   (l)    a registered charity under the Income Tax Act (Canada);
_________   (m)    an individual who beneficially owns, or who together with a spouse beneficially own, financial assets having an aggregate realizable value that, before taxes but net of any related liabilities, exceeds $1,000,000;
_________   (n)    an individual whose net income before taxes exceeded $200,000 in each of the two most recent years or whose net income before taxes combined with that of a spouse exceeded $300,000 in each of those years and who, in either case, has a reasonable expectation of exceeding the same net income level in the current year;
    (Note: if individual accredited investors wish to purchase through wholly-owned holding companies or similar entities, such purchasing entities must qualify under section (aa) below, which must be initialled.)


_________   (o)    an individual who has been granted registration under the Securities Act (Ontario) or securities legislation in another jurisdiction as a representative of a person or company referred to in paragraph (g), whether or not the individual’s registration is still in effect;
_________   (p)    a promoter of the issuer or an affiliated entity of a promoter of the issuer;
_________   (q)    a spouse, parent, brother, sister, grandparent or child of an officer, director or promoter of the issuer;
_________   (r)    a person or company that, in relation to the issuer, is an affiliated entity or a control person;
_________   (s)    an issuer that is acquiring securities of its own issue;
_________   (t)    a company, limited liability company, limited partnership, limited liability partnership, trust or estate, other than a mutual fund or non-redeemable investment fund, that had net assets of at least $5,000,000 as reflected in its most recently prepared financial statements;
_________   (u)    a person or company that is recognized by the Ontario Securities Commission as an accredited investor;
_________   (v)    a mutual fund or non-redeemable investment fund that, in Ontario, distributes its securities only to persons or companies that are accredited investors;
_________   (w)    a mutual fund or non-redeemable investment fund that, in Ontario, distributes its securities under a prospectus for which a receipt has been granted by the Director (as defined in the Securities Act (Ontario)), or, if it has ceased distribution of its securities, has previously distributed its securities in this manner;
_________   (x)    a fully managed account if it is acquiring a security that is not a security of a mutual fund or non-redeemable investment fund;
_________   (y)    an account that is fully managed by a trust corporation registered under the Loan and Trust Corporations Act (Ontario) or under the Trust and Loan Companies Act (Canada), or under comparable legislation in any other jurisdiction;
_________   (z)    an entity organized outside of Canada that is analogous to any of the entities referred to in paragraphs (a) through (g) and paragraph (k) in form and function; or
_________   (aa)    a person or company in respect of which all of the owners of interests, direct or indirect, legal or beneficial, are persons or companies that are accredited investors.

 

NOTE: The investor must initial beside the applicable portion of the above definition.

 

For the purposes hereof:

 

(a) company ” means any corporation, incorporated association, incorporated syndicate or other incorporated organization;

 

(b) control person ” means any person, company or combination of persons or companies holding a sufficient number of any securities of the issuer to affect materially the control of the issuer, but any holding of any person, company or combination of persons or companies holding more than 20% of the outstanding voting securities of the issuer, in the absence of evidence to the contrary, shall be deemed to affect materially the control of the issuer;

 

(c) director ” where used in relation to a person, includes a person acting in a capacity similar to that of a director of a company;


(d) entity ” means a company, syndicate, partnership, trust or unincorporated organization;

 

(e) financial assets ” means cash, securities, or any contract of insurance or deposit or evidence thereof that is not a security for the purposes of the Securities Act (Ontario);

 

(f) foreign jurisdiction ” means a country other than Canada or a political subdivision of a country other than Canada;

 

(g) fully managed account ” means an investment portfolio account of a client established in writing with a portfolio advisor who makes investment decisions for the account and has full discretion to trade in securities of the account without requiring the client’s express consent to a transaction;

 

(h) individual ” means a natural person, but does not include a partnership, unincorporated association, unincorporated syndicate, unincorporated organization, trust, or a natural person in his or her capacity as trustee, executor, administrator or other legal personal representative;

 

(i) jurisdiction ” means a province or territory of Canada except where used in the term “foreign jurisdiction”;

 

(j) mutual fund ” includes (i) an issuer, (x) whose primary purpose is to invest money provided by its security holders, and (y) whose securities entitle the holder to receive on demand, or within a specified period after demand, an amount computed by reference to the value of a proportionate interest in the whole or in a part of the net assets, including a separate fund or trust account, of the issuer, or (ii) an issuer or class of issuers that is designated as a mutual fund by an order of the Ontario Securities Commission in the case of a single issuer or otherwise in a regulation which is made for the purposes of the definition of “mutual fund” under the Securities Act (Ontario), but does not include an issuer or a class of issuer that is designated not to be a mutual fund by an order of the Ontario Securities Commission in the case of a single issuer or otherwise in a regulation which is made for the purposes of the definition of “mutual fund” under the Securities Act (Ontario);

 

(k) non-redeemable investment fund ” means an issuer:

 

  (i) whose primary purpose is to invest money provided by its securityholders;

 

  (ii) that does not invest for the purpose of exercising effective control, seeking to exercise effective control, or being actively involved in the management of the issuers in which it invests, other than other mutual funds or non-redeemable investment funds; and

 

  (iii) that is not a mutual fund;

 

(l) officer ” means the chair, any vice-chair of the board of directors, the president, any vice president, the secretary, the assistant secretary, the treasurer, the assistant treasurer, and the general manager of a company, and any other person designated an officer of a company by by-law or similar authority, or any individual acting in a similar capacity on behalf of an issuer or registrant;

 

(m) person ” means an individual, partnership, unincorporated association, unincorporated syndicate, unincorporated organization, trust, trustee, executor, administrator, or other legal representative;

 

(n) portfolio adviser ” means

 

  (i) a portfolio manager; or

 

  (ii) a broker or investment dealer exempted from registration as an adviser under subsection 148(1) of the Regulation made under the Securities Act (Ontario) if that broker or investment dealer is not exempt from the by-laws or regulations of the Toronto Stock Exchange or the Investment Dealers’ Association of Canada referred to in that subsection;


(o) portfolio manager ” means an adviser registered for the purpose of managing the investment portfolio of clients through discretionary authority granted by the clients;

 

(p) promoter ” means (i) a person or company who, acting alone or in conjunction with one or more other persons, companies or a combination thereof, directly or indirectly, has taken the initiative in founding, organizing or substantially reorganizing the business of the issuer, or (ii) a person or company who, in connection with the founding, organizing or substantial reorganizing of the business of the issuer, directly or indirectly, receives in consideration of services or property, or both services and property, 10% or more of any class of securities of the issuer or 10% or more of the proceeds from the sale of any class of securities of a particular issue, but a person or company who receives such securities or proceeds either solely as underwriting commissions or solely in consideration of property shall not be deemed a promoter within the meaning of the definition of “promoter” under the Securities Act (Ontario) if such person or company does not otherwise take part in founding, organizing or substantially reorganizing the business;

 

(q) related liabilities ” means liabilities incurred or assumed for the purpose of financing the acquisition or ownership of financial assets and liabilities that are secured by financial assets; and

 

(r) spouse ”, in relation to an individual, means another individual to whom that individual is married, or another individual of the opposite sex or the same sex with whom that individual is living in a conjugal relationship outside marriage.

 

Affiliated Entities

 

(s) A person or company is considered to be an affiliated entity of another person or company if one is a subsidiary entity of the other, or if both are subsidiary entities of the same person or company, or if each of them is controlled by the same person or company.

 

Control

 

(t) A person or company is considered to be controlled by a person or company if: (i) in the case of a person or company, (x) voting securities of the first mentioned person or company carrying more than 50% of the votes for the election of directors are held, otherwise than by way of security only, by or for the benefit of, the other person or company, and (y) the votes carried by the securities are entitled, if exercised, to elect a majority of the directors of the first-mentioned person or company, (ii) in the case of a partnership that does not have directors, other than a limited partnership, the second-mentioned person or company holds more than 50% of the interests in the partnership; or (iii) in the case of a limited partnership, the general partner is the second-mentioned person or company.

 

Subsidiary Entity

 

(u) A person or company is considered to be a subsidiary entity of another person or company if: (i) it is controlled by, (x) that other, or (y) that other and one or more persons or companies each of which is controlled by that other, or (z) two or more persons or companies, each of which is controlled by that other, or (ii) it is a subsidiary entity of a person or company that is the other’s subsidiary entity.

 

All monetary references are in Canadian Dollars.


EXHIBIT 3

 

Disclosure Documents

 

1. Management Proxy and Information Circular dated June 1, 2005

 

2. Interim Consolidated Financial Statements for Three Months Ended March 31, 2005 (Unaudited - Canadian GAAP)

 

3. Management’s Discussion and Analysis - Quarter Ended March 31, 2005 (dated May 13, 2005)

 

4. Annual Information Form - Year Ended December 31, 2004 (dated March 29, 2005)

 

5. Annual Consolidated Financial Statements for Years Ended December 31, 2004 and 2003 (Audited - Canadian GAAP)

 

6. Company Press Releases dated April 19 and May 2, 10, 17, 20, 25 of 2005

 

7. Term Sheet for Proposed Senior Secured Note with Common Share Issuance attached as Exhibit 4 to this Subscription Agreement (Confidential)

 

The documents described in 1 through 6 above can be found under Gastar Exploration Ltd. Company Profile on www.sedar.com.

The document described in 7 above is confidential and should not be distributed or disclosed.


EXHIBIT 4

 

GASTAR EXPLORATION LTD.

 

$90,000,000 SENIOR SECURED NOTES

With Common Share Issuance

 

TERM SHEET

(Confidential)

 

Issuer:    Gastar Exploration Ltd. (“the Company”).
Securities:    Senior Secured Notes (“the Notes”) issued at Par Value.
Issuance Amount:    Up to $90,000,000. The Company would receive $70,000,000 at the Closing, and have an option to draw an additional $20,000,000 over the Term (on terms and conditions described below).
Rank/Security:   

Investor would have a first perfected security interest on all tangible and intangible assets now owned, and hereafter created or acquired by the Company and its domestic (U.S.) subsidiaries, including but not limited to all accounts, notes, and contracts receivable, inventory, machinery and equipment, land and buildings, drilling and mineral rights, and general intangibles, and a first perfected pledge of 100% of the stock of all subsidiaries (existing & future, direct and indirect), except (i) with respect to the Powder River Basin assets (which would be subject to a springing lien if not sold within 120 days) (ii) existing Australian assets provided that pledge of 100% of stock of Subsidiary that owns such assets will remain in place at all times and (iii) California oil and gas assets (which would be subject to a springing lien if value or investment to develop exceed $250,000). Negative covenants prohibiting the issuance or incurrence of debt or liens at the foreign subsidiary level would also be included. Neither the Company nor any of its subsidiaries may incur any additional indebtedness unless such indebtedness (with certain exceptions) is subordinated to the Notes, in a form acceptable to Investor, is unsecured and matures after the maturity date of the Notes (“Permitted Subordinated Debt”). Existing indebtedness to be scheduled to include convertible debentures of $30,000,000, $25,000,000 unsecured subordinated note due to Geostar in January 2006 and $3,250,000 unsecured subordinated note due 2009.

 

Permitted Indebtedness per industry standard for secured oil and gas financings.


Use of Proceeds:    Approximately $70,000,000 of the proceeds are to be used for general corporate purposes including re-
financing existing debt, the acquisition of additional interests in the Company’s existing leasehold and
working interest properties and the exploration and development of the Company’s East Texas, Powder
River Basin and Australian oil, natural gas and CBM assets. Approximately $27,500,000 of the proceeds are
to be used to redeem the 15% outstanding senior unsecured notes owed to Ingalls & Snyder.
Interest:    3 month Libor + 600 bps per annum, adjusted and payable quarterly in cash.
Term/Maturity:    5 years and 1 day.

Company Cash/Equity

Redemption Right:

   The Company, at any time after year one from the Closing, would have the right to repay any or all outstanding Notes in cash, at a redemption price equal to 105% of par plus accrued Interest for years 1 and 2, reducing prepayment penalty each year by 1% until at par plus accrued but unpaid Interest at the Maturity date.
Asset Sales:    Asset Sales and farm-outs permitted so long as (i) no Event of Default exists, (ii) proceeds subject to Lien and reinvested in core business and (iii) officers certificate delivered verifying that after giving effect to disposition Company is in compliance with financial covenants.
Change of Control:    Any increase in common shares due to the terms of the look-back provision or due to the terms of the option to acquire coal rights in Victoria, Australia contained in the definitive documentation between Geostar and Gastar would be carved out of any change of control calculation for redemption purposes. Change of Control Redemption prepayment to match Company Redemption Right except for hostile takeover premium equal to 115% of par.
Company Draw Down Right:    During the period from the 3rd month through the 24th month following the initial Closing, provided the Notes remain outstanding and the Company remains in compliance with the Financial Covenants listed below, the Company would have the right on a quarterly basis to require the Investor to purchase up to an additional $20 million aggregate principal amount of additional Notes (the “Additional Notes”). The Additional Notes would be issued upon the same terms and conditions as the original Notes, including pro rata share issuance, except that these additional Notes would mature 5 years and 1 day from the date of their issuance.
Financial Covenants:   

The following financial covenants would apply

 

(i)      Hedging Requirement: The Company may not hedge more than 50% (on a forward rolling 12-month basis) of all oil and gas production;


    

 

(ii)     PV-10 Proved and Probable Oil and Gas reserves to Net Debt: The ratio of the Company’s PV-
10 for its total proved and probable oil and gas reserves to the Company’s net debt (debt
attributable to this facility only, i.e. the $30 million convertible debentures will not be considered
debt under these covenants) must be at least 2:1 (1.5 for maintenance purposes) during one year,
2.5:1 starting in year two, 3:1 starting in year three, 3.5:1 starting in year four and 3.5:1 starting in
year five and thereafter;

 

(iii)   PV-10 Proved reserves to Net Debt: The ratio of the Company’s PV-10 for its total proved oil
and gas reserves to the Company’s net debt (debt attributable to this facility only, i.e. the $30
million convertible debentures will not be considered debt under these covenants) must be at least
1:1 starting in year two, 1.5:1 starting in year three, 2:1 starting in year four and thereafter.

 

The Company would have the continual obligation to repay at 100% of par plus accrued but unpaid Interest
the amount of Notes necessary to maintain compliance with the above covenants, except for year one under
covenant (ii) above, which for maintenance purposes would be 1.5:1, but for additional draw down purposes,
2:1. Clause (ii) and (iii) above will be calculated based on a price for gas per mcf of the lower of (a) $6.00
Henry Hub and (b) the then current Henry Hub prompt month price and price for oil per barrel of the lower
of (a) $40 and (b) the then current NYMEX prompt month price.

Share Issuance:   

The Investor will receive at Closing and thereafter at each of the first three six-month anniversaries of the Closing, common shares equal to CND $5,000,000 divided by the arithmetic average of the Volume Weighted Average Price (over five trading days) of the Common Stock for the five consecutive trading days prior to Closing or applicable six month anniversary date as the case may be. Common shares to be issued at initial closing estimated to be approximately 1,300,000.

 

On the take down of Additional Notes and on each of the first three six-month anniversaries of such Additional Note Closing Date (each an “Additional Delivery Date”), the Company shall issue to Investors that number of common shares equal to the quotient of (A) one-fourteenth (1/14) of the Additional Note Issuance Amount Issuance


    

Amount relating to such Additional Closing Date, divided by (B) the arithmetic average of the weighted
average price of the common shares on each of the five (5) consecutive trading days immediately preceding
the Additional Delivery Date.

 

Share issuance will be subject to a (i) deferred issuance if Investors would hold at the time of issuance in
excess of 9.99% of the common shares outstanding after any issuance, and (ii) limitation of issuance a
maximum number of shares issued without breaching the rules or regulations of the TSX or such other
principal market) (the “Exchange Cap”) with certain subsequent make-up cash payments, if necessary.

Registration:    The Company would be required to file with the U.S. SEC within 90 days of Closing a U.S. registration statement on Form S-1 or other appropriate documentation necessary to effect within 180 calendar days from Closing a U.S. Registration Statement covering the resale of the Common Stock underlying the Warrants and any other securities deemed appropriate by the Company under U.S. securities laws. Certain penalties will apply for failure to register, or subject to applicable grace periods, failure to keep registration statement current.
Closing, Funding, Reimbursements:    Closing and funding would occur after the completion of due diligence to the satisfaction of all parties and simultaneously with the mutual execution of the investment agreements. The investment agreements would contain covenants and protections customary for an investment of this nature. The Company would pay to the Investor at each closing a non-accountable reimbursement amount (“Reimbursement”) equal to 1.0% of the Issuance Amount at such closing. The Investor would cover its own due diligence and legal costs.

 

Date: 5/27/05

EXHIBIT 4.12

 

UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS PURCHASE WARRANT CERTIFICATE MUST NOT TRADE THE PURCHASE WARRANTS OR THE COMMON SHARES ISSUABLE UPON EXERCISE BEFORE OCTOBER 24, 2004.

 

THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFECTIVE REGISTRATION UNDER SUCH ACT OR AN EXEMPTION FROM REGISTRATION, WHICH, IN THE OPINION OF COUNSEL REASONABLE SATISFACTORY TO COUNSEL FOR THIS CORPORATION, IS AVAILABLE.

 

THE PURCHASE WARRANT REPRESENTED BY THIS CERTIFICATE WILL BE VOID AND OF NO VALUE UNLESS EXERCISED NO LATER THAN 4:30 p.m. (TORONTO TIME) ON JUNE 24, 2009.

 

WARRANT CERTIFICATE

GASTAR EXPLORATION LTD.

(A Corporation subsisting under the laws of the Province of Alberta)

 

WARRANT    
CERTIFICATE NO. 2004-1   510,525 PURCHASE WARRANTS entitling the
    holder to acquire, subject to adjustment, one (1)
    Common Share for each Purchase Warrant
    represented hereby.

 

THIS IS TO CERTIFY THAT Ingalls & Snyder Value Partners L.P. (hereinafter referred to as the “holder”) is the registered holder of that number of Purchase Warrants to acquire Common Shares (as hereinafter defined) of Gastar Exploration Ltd. (the “Corporation”) as set forth in this Purchase Warrant certificate (“Warrant Certificate”). Each Purchase Warrant represented hereby entitles the holder thereof to acquire, in the manner and subject to the restrictions and adjustments set forth herein, at any time and from time to time until 4:30 p.m. (Toronto Time) (the “Time of Expiry”) on June 24, 2009 (the “Expiry Date”), one (1) fully paid and non-assessable common share without nominal or par value, (together with any other securities which may be issued or distributed by the Corporation with respect thereto or in substitution therefore, the “Common Shares”) of the Corporation, at a price of US$3.23 per share.

 

The right to acquire Common Shares hereunder may only be exercised by the holder within the time set forth above by:

 

a. duly completing and executing the Exercise Form attached hereto;

 

b. surrendering this Warrant Certificate to the head office of the Corporation; and

 

c. remitting cash, certified cheque, bank draft or money order in lawful money of the United States, payable to or to the order of the Corporation at par where this Warrant Certificate is so surrendered, for the aggregate purchase price of the Common Shares so subscribed for.

 

These Purchase Warrants may be surrendered only upon personal delivery hereof or, if sent by mail or other means of transmission, upon actual receipt thereof by the Corporation at the office referred to above.

 

Upon exercise of these Purchase Warrants as provided above, the person or persons in whose name or names the Common Shares issuable upon exercise of the Purchase Warrants are to be issued shall be deemed for all purposes to be the holder or holders of record of such Common Shares and the Corporation will cause a certificate or certificates representing such Common Shares to be delivered or mailed to the person or persons at the address or addresses specified in the Exercise Form within twenty (20) Business Days.

 

The registered holder of this Warrant Certificate may acquire any lesser number of Common Shares than the number of Common Shares which may be acquired for the Purchase Warrants represented by this Warrant Certificate. In such event, the holder shall be entitled to receive a new certificate for the balance of the Common Shares which may be acquired. To the extent that the holder is entitled to receive on the exercise or partial exercise thereof a fraction


of a Common Share, such right may only be exercised in respect of such fraction in combination with another Purchase Warrant or other Purchase Warrants, which in the aggregate entitles the holder to receive a whole number of Common Shares.

 

If the holder is not able to or elects not to, combine Purchase Warrants so as to be entitled to acquire a whole number of Common Shares, the Corporation shall make an appropriate cash settlement. However, in respect of any holder, the Corporation shall only be required to make such a cash adjustment once and for one Purchase Warrant and no more. The amount of the cash adjustment with respect to the Common Share shall be equal to the fraction of the Common Share to which the holder would be entitled multiplied by the current market price of the Common Shares as determined in good faith by the Corporation.

 

The Corporation agrees that, prior to the expiration of this Purchase Warrant, the Corporation will at all times:

 

a. have authorized and in reserve, and will keep available, solely for issuance or delivery upon the exercise of this Purchase Warrant, the maximum amount of shares of Common Shares and other securities and properties as from time to time shall be receivable upon the exercise of this Purchase Warrant, free and clear of all restrictions on sale or transfer, except for

 

  (i) the restrictions on sale or transfer set forth in the Securities Act of 1933, Business Corporations Act or any other statute of Canada or a province thereof, and of regulations under any such act or other statute, relating to warrant agreements or to the rights, duties and obligations of trustees, or warrant agents, and of corporations under warrant agreements; and

 

  (ii) (ii) restrictions created by or on behalf of the holder, and free and clear of all preemptive rights and rights of first refusal; and

 

b. cause the Common Shares to be listed on the Toronto Stock Exchange or other securities exchange on which the Common Shares are then listed.

 

The Corporation covenants that:

 

a. all of the Common Shares are validly authorized and, if and when this Purchase Warrant is exercised in whole or in part in accordance with the terms hereof, the Common Shares issued upon such exercise, upon receipt by the Corporation of the full per share warrant price therefor, shall be validly issued, fully paid, nonassessable, and will not be issued in violation of any preemptive rights or other rights of stockholders;

 

b. it will pay, when due and payable, any and all federal, provincial and state stamp, original issue or similar taxes which may be payable in respect of any Common Shares or any certificate thereof to the exercise of the Purchase Warrants; and

 

c. it will comply with all filings and reporting obligations required to maintain good standing with the Toronto Stock Exchange or such other stock exchange as the Common Shares may then be listed upon, and thereby maintain its Common shares so listed.

 

In the event of any alteration of the Common Shares, including any subdivision, consolidation or reclassification, and in the event of any form of reorganization of the Corporation including any amalgamation, merger or arrangement, or any dividend or distribution of Common Shares or other securities or property, or successive transactions thereof, the holders of Purchase Warrants shall, upon exercise of the Purchase Warrants following the occurrence of any of those events, be entitled to receive had they exercised their Purchase Warrants immediately prior to the occurrence of those events. The Corporation covenants to take such steps as may be necessary to ensure that the issuer of any shares of stock or other securities or property thereafter deliverable on the exercise of this Purchase Warrant, pursuant to any of the alterations described above, shall be responsible for all of the agreements and obligations of the Corporation hereunder, and the Corporation shall ensure that such issuer executes an agreement with the holder providing that the holder has the rights thereafter to receive upon exercise of this Purchase Warrant such shares, security or property. In case at any time the Corporation shall take any action requiring an adjustment as described above, the Corporation shall give written notice thereof, to the holder at the holder’s address as it shall appear on the books of the Corporation, at least fifteen (15) days prior to the date as of which the holders of record of the Common Shares are entitled to receive any shares, securities or property.


The holding of the Purchase Warrants evidenced by this Warrant Certificate shall not constitute the holder hereof a shareholder of the Corporation or entitle the holder to any right or interest in respect thereof except as expressly provided in this Warrant Certificate.

 

The Purchase Warrants evidenced by this Warrant Certificate may be transferred on the register kept at the principal offices of the Corporation at its principal offices in Mt. Pleasant, Michigan by the registered holder hereof or its legal representatives or its attorney duly appointed by an instrument in writing in form and execution satisfactory to the Corporation.

 

Exercise by a U.S. Person or within the United States of this Purchase Warrant will be subject to the recipient of the Common Shares to be issued upon such exercise being an “Accredited Investor” within the meaning of Rule 501 under the Securities Act of 1933, as amended, as determined in good faith by the Corporation.

 

This Warrant Certificate shall not be valid for any purpose whatever unless and until it has been signed by or on behalf of the Corporation.

 

Upon receipt of evidence satisfactory to the Corporation of the loss, theft, destruction or mutilation of this Purchase Warrant, and upon receipt of indemnity reasonably satisfactory to the Corporation, if lost, stolen or destroyed, and upon surrender and cancellation of this Purchase Warrant, if mutilated, the Corporation shall execute and deliver to the holder a new Purchase Warrant of like date, tenor and denomination.

 

The parties hereto irrevocably consent to the exclusive jurisdiction of the courts of the Province of Alberta in connection with any action or proceeding arising out of or relating to this Purchase Warrant, any document or instrument delivered pursuant to, in connection with or simultaneously with this Purchase Warrant, or a breach of this Purchase Warrant or any such document or instrument. In any such action or proceeding, each party hereto waives personal service of any summons, complaint or other process and agrees that service thereof may be made to the respective agents of the parties designated to receive service of process. Within thirty (30) days after such service, or such other time as may be mutually agreed upon in writing by the attorneys for the parties to such action or proceeding, the party so served shall appear or answer such summons, complaint or other process.

 

No course of dealing and no delay or omission on the part of the holder in exercising any right or remedy shall operate as a waiver thereof or otherwise prejudice the holder’s rights, powers or remedies. No right, power or remedy conferred by this Purchase Warrant upon the holder shall be exclusive of any other right, power or remedy referred to herein or now or hereafter available at law, in equity, by statute or otherwise, and all such remedies may be exercised singly or concurrently.

 

This Purchase Warrant may be amended only by a written instrument executed by the Corporation and the holder hereof. Any amendment shall be endorsed upon this Purchase Warrant, and all future holders shall be bound thereby.

 

Time shall be of the essence hereof. This Warrant Certificate shall be governed by and construed in accordance with the laws of the Province of Alberta and the federal law applicable therein and shall be treated in all respects as an Alberta contract.

 

IN WITNESS WHEREOF the Corporation has caused this Warrant Certificate to be signed by its duly authorized officers as of June 24, 2004.

 

GASTAR EXPLORATION LTD.
Per:  

  /s/ J. RUSSELL PORTER


    J. Russell Porter, Chief Executive Officer


TRANSFER OF PURCHASE WARRANTS

 

FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers to                                                       ,                          Purchase Warrants of Gastar Exploration Ltd. (the “Corporation”) registered in the name of the undersigned on the records of the Corporation represented by the Warrant Certificate attached and irrevocably appoints                          the attorney of the undersigned to transfer the said securities on the books or register with full power of substitution.

 

If less than all the Purchase Warrants represented by this Warrant Certificate are being transferred, the Warrant Certificate representing those Purchase Warrants not transferred will be registered in the name appearing on the face of this Warrant Certificate and such certificates (please check one):

 

(a) _________  should be sent by first class mail to the following address:

 

      
      

 

(b) _________  should be held for pick up at the principal office of the Corporation in Mt. Pleasant, Michigan, at which this Warrant Certificate is deposited.

 

DATED the      day of                      ,          .

 

         

Signature Guaranteed

     

(Signature of holder)

 

Instructions:

 

1. Signature of the holder must be the signature of the person appearing on the face of this Warrant Certificate.

 

2. If the Transfer Form is signed by a trustee, executor, administrator, curator, guardian, attorney, officer of a corporation or any person acting in a judiciary or representative capacity, the certificate must be accompanied by evidence of authority to sign satisfactory to the Corporation.

 

3. The signature on the Transfer Form must be guaranteed by an authorized officer of a chartered bank, trust company or an investment dealer who is a member of a recognized stock exchange.

 

4. Purchase Warrants shall only be transferable in accordance with applicable laws.

 

5. The Purchase Warrants and the Common Shares issuable upon exercise thereof have not been registered under the United States Securities Act of 1933 , as amended (the “U.S. Securities Act”), or the securities laws of any state of the United States, and may not be transferred in the United States or to a U.S. Person unless the Purchase Warrants and the Common Shares have been registered under the U.S. Securities Act and the securities laws of all applicable states of the United States or an exemption from such registration requirements is available. In connection with any transfer of Purchase Warrants, the holder will be required to provide to the Corporation an opinion of counsel, or other evidence, in form reasonably satisfactory to the Corporation, to the effect that such transfer of Purchase Warrants does not require registration under the U.S. Securities Act or any applicable state laws and regulations governing the offer and sale of securities.


EXERCISE FORM

 

  TO: GASTAR EXPLORATION LTD.

 

(a) The undersigned hereby exercises the right to acquire                              Common Shares of Gastar Exploration Ltd..

 

(b) The Common Shares (or other securities or property) are to be issued as follows:

 

Name:

   __________________________________________________________________________________________________________________
     (print clearly)

Address in full:

    
 

 

Social Insurance Number/Social Security Number/IRS Tax Identification Number:      

 

Number of Common Shares:

    

 

Note : If further nominees intended, please attach (and initial) schedule giving these particulars.

 

(c) Such securities (please check one):

 

  __________  should be sent by first class mail to the following address:

 

OR

 

  __________  should be held for pick up at the office of the Corporation at its principal office in Mt. Pleasant Michigan at which this Warrant Certificate is deposited.

 

If the number of Purchase Warrants exercised are less than the number of Purchase Warrants represented hereby, the undersigned requests that the new Warrant Certificate representing the balance of the Purchase Warrants be registered in the name of

 

 
 

 

whose address is

    
 

 

Such securities (please check one):

 

(a) _________  should be sent by first class mail to the following address:

 

 
 

 

OR

 

(b) _________  should be held for pick up at the office of the Purchase Warrant principal office of the Corporation at the Mt. Pleasant, Michigan at which this Warrant Certificate is deposited.


In the absence of instructions to the contrary, the securities or other property will be issued in the name of or to the holder hereof and will be sent by first class mail to the last address of the holder appearing on the register maintained for the Purchase Warrants.

 

DATED this              day of                  ,          .

 

         

Signature Guaranteed

     

(Signature of holder)

         
       

Print full name

         
         
         
       

Print full address

 

Instructions :

 

1. The registered holder may exercise its right to receive Common Shares by completing this form and surrendering this form and the Warrant Certificate representing the Purchase Warrants being exercised to the Corporation at its principal office in Mt. Pleasant, Michigan. Certificates for Common Shares will be delivered or mailed within twenty business days after the exercise of the Purchase Warrants.

 

2. If the Exercise Form indicates that Common Shares are to be issued to a person or persons other than the registered holder of the Certificate, the signature of such holder of the Exercise Form must be guaranteed by an authorized officer of a chartered bank, trust company or an investment dealer who is a member of a recognized stock exchange.

 

3. If the Exercise Form is signed by a trustee, executor, administrator, curator, guardian, attorney, officer of a corporation or any person acting in a fiduciary or representative capacity, the certificate must be accompanied by evidence of authority to sign satisfactory to the Corporation.

EXHIBIT 4.13

 

UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS PURCHASE WARRANT CERTIFICATE MUST NOT TRADE THE PURCHASE WARRANTS OR THE COMMON SHARES ISSUABLE UPON EXERCISE BEFORE FEBRUARY 8, 2005.

 

THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION UNDER SUCH ACT OR AN EXEMPTION FROM REGISTRATION, WHICH, IN THE OPINION OF COUNSEL REASONABLY SATISFACTORY TO COUNSEL FOR THIS CORPORATION, IS AVAILABLE. THIS WARRANT IS ALSO SUBJECT TO THE TERMS OF A NOTE PURCHASE AGREEMENT, DATED OCTOBER 13, 2004, A COPY OF WHICH IS AVAILABLE FROM THE ISSUER.

 

THE PURCHASE WARRANTS REPRESENTED BY THIS CERTIFICATE WILL BE VOID AND OF NO VALUE UNLESS EXERCISED NO LATER THAN 4:30 p.m. (TORONTO TIME) ON OCTOBER 13, 2007.

 

WARRANT CERTIFICATE

(REPLACEMENT FOR WARRANT CERTIFICATE NO. 2004-2)

 

GASTAR EXPLORATION LTD.

(A Corporation subsisting under the laws of the Province of Alberta)

 

WARRANT

CERTIFICATE NO. 2004-2A    1,989,475 PURCHASE WARRANTS entitling the
     holder to acquire, subject to adjustment, one (1)
     Common Share for each Purchase Warrant
     represented hereby.

 

THIS IS TO CERTIFY THAT Ingalls & Snyder LLC (hereinafter referred to as the “holder”) is the registered holder of that number of Purchase Warrants to acquire Common Shares (as hereinafter defined) of Gastar Exploration Ltd. (the “Corporation”) as set forth in this Purchase Warrant certificate (“Warrant Certificate”). Each Purchase Warrant represented hereby entitles the holder thereof to acquire, in the manner and subject to the restrictions and adjustments set forth herein, at any time and from time to time until 4:30 p.m. (Toronto Time) (the “Time of Expiry”) on October 13, 2007 (the “Expiry Date”), one (1) fully paid and non-assessable common share without nominal or par value, (together with any other securities which may be issued or distributed by the Corporation with respect thereto or in substitution therefor, the “Common Shares”) of the Corporation, at a price of US$3.63 per share.

 

This certificate is in replacement and substitution of Warrant Certificate No. 2004-2 which inadvertently referenced an exercise price of US$3.30 per share. The holder and the Corporation hereby confirm that Warrant Certificate No. 2004 – 2 is hereby cancelled and replaced with the rights and privileges of this Warrant Certificate No. 2004-2A which correctly references the exercise price of US$3.63. This Warrant Certificate No. 2004-2A shall be deemed to be an amendment to Warrant Certificate 2004-2.

 

The right to acquire Common Shares hereunder may only be exercised by the holder within the time set forth above by:

 

a. duly completing and executing the Exercise Form attached hereto;

 

b. surrendering this Warrant Certificate to the head office of the Corporation; and

 

c. remitting cash, certified cheque, bank draft or money order in lawful money of the United States, payable to or to the order of the Corporation where this Warrant Certificate is so surrendered, for the aggregate purchase price of the Common Shares so subscribed for.

 

These Purchase Warrants may be surrendered only upon personal delivery hereof or, if sent by mail or other means of transmission, upon actual receipt thereof by the Corporation at the office referred to above.


Upon exercise of these Purchase Warrants as provided above, the person or persons in whose name or names the Common Shares issuable upon exercise of the Purchase Warrants are to be issued shall be deemed for all purposes to be the holder or holders of record of such Common Shares. The Corporation covenants that it will cause a certificate or certificates representing such Common Shares to be delivered or mailed to the person or persons at the address or addresses specified in the Exercise Form within twenty (20) Business Days.

 

The registered holder of this Warrant Certificate may acquire any lesser number of Common Shares than the number of Common Shares which may be acquired for the Purchase Warrants represented by this Warrant Certificate. In such event, the holder shall be entitled to receive a new certificate for the balance of the Common Shares which may be acquired. To the extent that the holder is entitled to receive on the exercise or partial exercise thereof a fraction of a Common Share, such right may only be exercised in respect of such fraction in combination with another Purchase Warrant or other Purchase Warrants, which in the aggregate entitles the holder to receive a whole number of Common Shares.

 

If the holder is not able to or elects not to, combine Purchase Warrants so as to be entitled to acquire a whole number of Common Shares, the Corporation shall make an appropriate cash settlement. However, in respect of any holder, the Corporation shall only be required to make such a cash adjustment once and for one Purchase Warrant and no more. The amount of the cash adjustment with respect to the Common Share shall be equal to the fraction of the Common Share to which the holder would be entitled multiplied by the current market price of the Common Shares as determined in good faith by the Corporation.

 

The Corporation agrees that, prior to the expiration of this Purchase Warrant, the Corporation will at all times:

 

a. have authorized and in reserve, and will keep available, solely for issuance or delivery upon the exercise of this Purchase Warrant, the maximum amount of shares of Common Shares and other securities and properties as from time to time shall be receivable upon the exercise of this Purchase Warrant, free and clear of all restrictions on sale or transfer, except for:

 

  i. the restrictions on sale or transfer set forth in the Securities Act of 1933, the Business Corporations Act or any other statute of Canada or a province thereof, and of regulations under any such act or other statute, relating to warrant agreements or to the rights, duties and obligations of trustees, or warrant agents, and of corporations under warrant agreements; and

 

  ii. restrictions created by or on behalf of the holder, and free and clear of all preemptive rights and rights of first refusal; and

 

b. cause the Common Shares to be listed on the Toronto Stock Exchange or other securities exchange on which the Common Shares are then listed.

 

The Corporation covenants that:

 

a. all of the Common Shares are validly authorized and, if and when this Purchase Warrant is exercised in whole or in part in accordance with the terms hereof, the Common Shares issued upon such exercise, upon receipt by the Corporation of the full exercise price therefor, shall be validly issued, fully paid, nonassessable, and will not be issued in violation of any preemptive rights or other rights of stockholders;

 

b. it will pay, when due and payable, any and all federal, provincial and state stamp, original issue or similar taxes which may be payable in respect of the issue of any Common Shares or any certificate thereof pursuant to the exercise of the Purchase Warrants; and

 

c. it will comply with all filings and reporting obligations required to maintain good standing with the Toronto Stock Exchange or such other stock exchange as the Common Shares may then be listed upon, and thereby maintain its Common Shares so listed.

 

2


In the event of any alteration of the Common Shares, including any subdivision, consolidation or reclassification, and in the event of any form of reorganization of the Corporation including any amalgamation, merger or arrangement, or any dividend or distribution of Common Shares or other securities or property, or successive transactions thereof, the holders of Purchase Warrants shall, upon exercise of the Purchase Warrants following the occurrence of any of those events, be entitled to receive the same number and kind of shares, securities or property that they would have been entitled to receive had they exercised their Purchase Warrants immediately prior to the occurrence of those events. The Corporation covenants to take such steps as may be necessary to ensure that the issuer of any shares of stock or other securities or property thereafter deliverable on the exercise of this Purchase Warrant, pursuant to any of the alterations described above, shall be responsible for all of the agreements and obligations of the Corporation hereunder, and the Corporation shall ensure that such issuer executes an agreement with the holder providing that the holder has the rights thereafter to receive upon exercise of this Purchase Warrant such shares, securities or property. In case at any time the Corporation shall take any action requiring an adjustment as described above, the Corporation shall give written notice thereof, to the holder at the holder’s address as it shall appear on the books of the Corporation, at least fifteen (15) days prior to the date as of which the holders of record of the Common Shares are entitled to receive any shares, securities or property.

 

The holding of the Purchase Warrants evidenced by this Warrant Certificate shall not constitute the holder hereof a shareholder of the Corporation or entitle the holder to any right or interest in respect thereof except as expressly provided in this Warrant Certificate.

 

The Purchase Warrants evidenced by this Warrant Certificate may be transferred on the register kept at the principal offices of the Corporation in Mt. Pleasant, Michigan by the registered holder hereof or its legal representatives or its attorney duly appointed by an instrument in writing in form and execution satisfactory to the Corporation.

 

Exercise by a U.S. Person or within the United States of this Purchase Warrant will be subject to the recipient of the Common Shares to be issued upon such exercise being an “Accredited Investor” within the meaning of Rule 501 under the Securities Act of 1933, as amended, as determined in good faith by the Corporation.

 

This Warrant Certificate shall not be valid for any purpose whatever unless and until it has been signed by or on behalf of the Corporation.

 

Upon receipt of evidence satisfactory to the Corporation of the loss, theft, destruction or mutilation of this Purchase Warrant, and upon receipt of indemnity reasonably satisfactory to the Corporation, if lost, stolen or destroyed, and upon surrender and cancellation of this Purchase Warrant, if mutilated, the Corporation shall execute and deliver to the holder a new Purchase Warrant of like date, tenor and denomination.

 

The parties hereto irrevocably consent to the exclusive jurisdiction of the courts of the State of New York in connection with any action or proceeding arising out of or relating to this Purchase Warrant, any document or instrument delivered pursuant to, in connection with or simultaneously with this Purchase Warrant, or a breach of this Purchase Warrant or any such document or

instrument. In any such action or proceeding, each party hereto waives personal service of any summons, complaint or other process and agrees that service thereof may be made to the respective agents of the parties designated to receive service of process. Within thirty (30) days after such service, or such other time as may be mutually agreed upon in writing by the attorneys for the parties to such action or proceeding, the party so served shall appear or answer such summons, complaint or other process.

 

No course of dealing and no delay or omission on the part of the holder in exercising any right or remedy shall operate as a waiver thereof or otherwise prejudice the holder’s rights, powers or remedies. No right, power or remedy conferred by this Purchase Warrant upon the holder shall be exclusive of any other right, power or remedy referred to herein or now or hereafter available at law, in equity, by statute or otherwise, and all such remedies may be exercised singly or concurrently.

 

This Purchase Warrant may be amended only by a written instrument executed by the Corporation and the holder hereof. Any amendment shall be endorsed upon this Purchase Warrant, and all future holders shall be bound thereby.

 

3


Time shall be of the essence hereof. This Warrant Certificate shall be governed by and construed in accordance with the laws of the State of New York and the federal law applicable therein and shall be treated in all respects as a New York contract.

 

IN WITNESS WHEREOF the Corporation has caused this Warrant Certificate to be signed by its duly authorized officers as of June 8, 2005, and shall only be valid upon the holder acknowledging the cancellation of Warrant Certificate No. 2004-2.

 

GASTAR EXPLORATION LTD.

Per:  

/s/ J. RUSSELL PORTER


    J. Russell Porter, Chief Executive Officer

 

IN CONFIRMATION OF THE CANCELLATION AND REPLACEMENT OF WARRANT CERTIFICATE NO. 2004-2, INGALLS & SNYDER LLC. has caused this Warrant Certificate No. 2004-2A to be signed by its duly authorized officers as of June 8, 2005.

 

INGALLS & SNYDER LLC

Per:  

 


 

4


TRANSFER OF PURCHASE WARRANTS

 

FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers to                      ,                      Purchase Warrants of Gastar Exploration Ltd. (the “Corporation”) registered in the name of the undersigned on the records of the Corporation represented by the Warrant Certificate attached and irrevocably appoints                      the attorney of the undersigned to transfer the said securities on the books or register with full power of substitution.

 

If less than all the Purchase Warrants represented by this Warrant Certificate are being transferred, the Warrant Certificate representing those Purchase Warrants not transferred will be registered in the name appearing on the face of this Warrant Certificate and such certificates (please check one):

 

(a)   ________________    should be sent by first class mail to the following address:
         _______________________________________________________________________________________
         _______________________________________________________________________________________
(b)   ________________    should be held for pick up at the principal office of the Corporation in Mt. Pleasant, Michigan, at which this Warrant Certificate is deposited.

 

DATED the      day of                      ,          .

   
   

 


Signature Guaranteed   (Signature of holder)

 

Instructions:

 

1. Signature of the holder must be the signature of the person appearing on the face of this Warrant Certificate.

 

2. If the Transfer Form is signed by a trustee, executor, administrator, curator, guardian, attorney, officer of a corporation or any person acting in a judiciary or representative capacity, the certificate must be accompanied by evidence of authority to sign satisfactory to the Corporation.

 

3. The signature on the Transfer Form must be guaranteed by an authorized officer of a chartered bank, trust company or an investment dealer who is a member of a recognized stock exchange.

 

4. Purchase Warrants shall only be transferable in accordance with applicable laws.

 

5. The Purchase Warrants and the Common Shares issuable upon exercise thereof have not been registered under the United States Securities Act of 1933 , as amended (the “U.S. Securities Act”), or the securities laws of any state of the United States, and may not be transferred in the United States or to a U.S. Person unless the Purchase Warrants and the Common Shares have been registered under the U.S. Securities Act and the securities laws of all applicable states of the United States or an exemption from such registration requirements is available. In connection with any transfer of Purchase Warrants, the holder will be required to provide to the Corporation an opinion of counsel, or other evidence, in form reasonably satisfactory to the Corporation, to the effect that such transfer of Purchase Warrants does not require registration under the U.S. Securities Act or any applicable state laws and regulations governing the offer and sale of securities.


EXERCISE FORM

 

TO:     GASTAR EXPLORATION LTD.

 

(a) The undersigned hereby exercises the right to acquire                      Common Shares of Gastar Exploration Ltd.

 

(b) The Common Shares (or other securities or property) are to be issued as follows:

 

Name:                                                                                                                                                                                                         

          (print clearly)

 

Address in full:                                                                                                                                                                                          

 

_____________________________________________________________________________________________________

 

Social Insurance Number/Social Security Number/IRS Tax Identification Number:_____________________________________

 

Number of Common Shares:                                                                                                                                                                    

 

Note : If further nominees intended, please attach (and initial) schedule giving these particulars.

 

(c) Such securities (please check one):

 

                     should be sent by first class mail to the following address:

 

 

OR

 

                 should be held for pick up at the office of the Corporation at its principal office in Mt. Pleasant Michigan at which this Warrant Certificate is deposited.

 

If the number of Purchase Warrants exercised are less than the number of Purchase Warrants represented hereby, the undersigned requests that the new Warrant Certificate representing the balance of the Purchase Warrants be registered in the name of _______________________

 

____________________________________________________________________________________________________________

 

whose address is                                                                                                                                                                                                 

 

____________________________________________________________________________________________________________

 

Such securities (please check one):

 

(a)                              should be sent by first class mail to the following address:

 

____________________________________________________________________________________________________________

 

____________________________________________________________________________________________________________

 

OR


(b)                              should be held for pick up at the office of the principal office of the Corporation in Mt. Pleasant, Michigan at which this Warrant Certificate is deposited.

 

In the absence of instructions to the contrary, the securities or other property will be issued in the name of or to the holder hereof and will be sent by first class mail to the last address of the holder appearing on the register maintained for the Purchase Warrants.

 

DATED this      day of                      ,          .     

 


  

 


Signature Guaranteed   

(Signature of holder)

    

 


    

Print full name

    

 


    

 


    

Print full address

 

Instructions :

 

1. The registered holder may exercise its right to receive Common Shares by completing this form and surrendering this form and the Warrant Certificate representing the Purchase Warrants being exercised to the Corporation at its principal office in Mt. Pleasant, Michigan. Certificates for Common Shares will be delivered or mailed within twenty (20) business days after the exercise of the Purchase Warrants.

 

2. If the Exercise Form indicates that Common Shares are to be issued to a person or persons other than the registered holder of the Certificate, the signature of such holder of the Exercise Form must be guaranteed by an authorized officer of a chartered bank, trust company or an investment dealer who is a member of a recognized stock exchange.

 

3. If the Exercise Form is signed by a trustee, executor, administrator, curator, guardian, attorney, officer of a corporation or any person acting in a fiduciary or representative capacity, the certificate must be accompanied by evidence of authority to sign satisfactory to the Corporation.

 

7

Exhibit 4.14

 

GASTAR EXPLORATION LTD.

 

FORM OF 10% SUBORDINATED NOTES DUE 5 YEARS

AFTER ISSUANCE WITH WARRANTS ATTACHED

 

ALONG WITH

SUBSCRIPTION PACKETS FOR

BOTH INDIVIDUALS AND NON-INDIVIDUAL ENTITIES

 

July 19, 2004

 

1


 

No.     3001

 

GASTAR EXPLORATION LTD.

10% SUBORDINATED NOTE WITH WARRANTS

DUE 5 YEARS AFTER ISSUANCE

 

Principal Amount:

                            (please write out amount)

  

Dollars (US) ($ )

(minimum $100,000)

Issuance Date:         , 2004     
Maturity Date:         , 2009     
Final Warrant Strike Price Per Share:    USD$
Registered Holder(s):     

 

NEITHER THIS NOTE NOR ANY SECURITIES ISSUABLE UPON EXERCISE OF THE WARRANTS HAVE BEEN REGISTERED UNDER THE FEDERAL SECURITIES ACT OF 1933. THIS NOTE AND ANY SECURITIES ISSUABLE UPON EXERCISE OF THE WARRANTS MAY NOT BE SOLD, ASSIGNED, HYPOTHECATED OR OTHERWISE TRANSFERRED UNLESS (1) A REGISTRATION STATEMENT IS IN EFFECT UNDER THE FEDERAL SECURITIES ACT OF 1933 COVERING THE PROPOSED TRANSFER AND THE TRANSFER IS MADE IN ACCORDANCE WITH SUCH REGISTRATION STATEMENT OR (2) THIS NOTE IS, OR SUCH OTHER SECURITIES ARE, TRANSFERRED IN A TRANSACTION EXEMPT FROM THE SECURITIES ACT REGISTRATION REQUIREMENTS, AS WELL AS THE REGISTRATION OR QUALIFICATION REQUIREMENTS OF APPLICABLE STATE LAW, UNDER THE PROVISIONS OF RULE 144 PROMULGATED UNDER THE SECURITIES ACT OR OTHERWISE. IN CASE OF ANY TRANSFER UNDER CLAUSE (2), THE TRANSFEROR MUST NOTIFY THE COMPANY (AS DEFINED BELOW) IN REASONABLE DETAIL OF THE PROPOSED TRANSFER AND, AT THE COMPANY’S REQUEST, FURNISH THE COMPANY WITH AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT THE TRANSFER WILL NOT REQUIRE REGISTRATION UNDER THE FEDERAL SECURITIES ACT OR REGISTRATION OR QUALIFICATION UNDER APPLICABLE STATE LAWS.

 

General

 

GASTAR EXPLORATION LTD., an Alberta, Canada corporation (herein the “ Company ,” which term includes any successor corporation), for value received, hereby promises to pay to the registered holder of this note (the “ Note ”) set forth above or such holder’s registered assigns (in either case, the “ Holder ”), the principal sum set forth above (the “ Principal Amount ”) on the maturity date set forth above (the “ Maturity Date ”), and to pay interest thereon at the Interest Rate set forth below, on the interest payment dates (each, an “ Interest Payment Date ”), commencing on the first Interest Payment Date, until the maturity date or as otherwise provided under “Warrants to Acquire Common Stock,” below. The Interest Payment Dates shall be the tenth Business Day (defined below) following the end of each semi-annual period during which this Note is outstanding. The first Interest Payment Date shall be the tenth Business Day following the end of the semi-annual period in which this Note is first issued.

 

2


As used herein, the term “ Business Day ” means each Monday, Tuesday, Wednesday, Thursday and Friday that is a day on which banking institutions or trust companies in the United States are authorized or obligated to be open.

 

Interest Rate

 

The rate of interest on the Principal Amount shall be ten percent (10%) per annum (the “ Interest Rate ”). Interest on this Note shall commence accruing from the issuance date of this Note set forth above (the “ Issuance Date ”). Interest shall cease to accrue on this Note on the Maturity Date. Interest on this Note will be computed on the basis of a 360-day year of twelve 30-day months.

 

Interest Payments

 

The interest payable on this Note on any Interest Payment Date will be paid to the Holder in whose name this Note is registered on the Company’s books at the close of business on the Regular Record Date (each, a “ Regular Record Date ”), immediately preceding such Interest Payment Date. The Regular Record Dates shall be the last day of each semi-annual period while this Note is outstanding.

 

Interest payable on this Note on any Interest Payment Date or the Maturity Date will include interest accrued from and including the immediately preceding Interest Payment Date in respect of which interest has been paid or duly provided for (or from and including the Issuance Date), up to but excluding such Interest Payment Date or the Maturity Date, as the case may be. If any Interest Payment Date or the Maturity Date falls on a day that is not a Business Day, principal and/or interest payable with respect to such Interest Payment Date or the Maturity Date, as the case may be, will be paid on the next succeeding Business Day with the same force and effect as if it were paid on the date such payment was due, and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date or the Maturity Date, as the case may be, to such next succeeding Business Day.

 

All payments of principal and interest in respect of this Note will be made by the Company in immediately available funds in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. The Company may pay the Principal Amount and accrued interest on this Note from any source that it has available to it.

 

Call Provisions

 

The Notes shall be callable at 108% of the principal amount at any time beginning two years after the date of issuance. The call premium shall decrease to 105% after three years from the date of issuance and to 101 % after four years from the date of issuance.

 

Payment Upon Maturity

 

Promptly following the Maturity Date, the Holder will be entitled to be paid the full Principal Amount of this Note (and accrued but unpaid interest as provided above), provided that the Holder delivers this Note to the Company for cancellation. If this Note has been lost, stolen, mutilated or destroyed, the Company may, in its sole discretion, allow the Holder to complete an Affidavit of Lost Note, and/or obtain an indemnity bond in an amount acceptable to the Company, and/or provide any other paperwork the company Deems necessary before paying the Holder the Principal Amount and accrued but unpaid interest on this Note.

 

3


Warrants to Acquire Common Stock

 

Our Common Stock is currently listed for trading on the Toronto Stock Exchange (TSX) under the ticker symbol YGA. Each Note will have 20% of the Principal Amount in Warrants attached or $2,000,000 in total Warrant Value of the entire $10,000,000 principal amount in Notes is sold. The Warrants will give the holder of each Note the right to purchase Gastar common shares at the Warrant Strike Price. The Warrant Strike Price shall be the 5 day average closing price of Gastar common shares for the 5 trading days prior to closing. Warrants may be exercised any time beginning ninety (90) days after the closing date of investment and until the Warrants expire, five (5) years from the Issuance Date. The Warrants may, at the holder’s option, be exercised on a cashless basis whereby the Corporation retains the number of Common Shares which, when multiplied by the last closing trading price and applicable Warrant Strike Price Premium on the date the Exercise Form is delivered to the Corporation, equals the aggregate exercise price for all of the Common Shares then exercised.

 

Gastar common stock acquired through the exercise of the Warrants will have a one (1) year trading restriction from the Exercise Date, further subject to any and all applicable securities rules and regulations. If the Note is called or redeemed prior to maturity, Warrants may still be exercised during the exercise period and prior to expiry.

 

The Market Price of Gastar common shares is denominated in Canadian Dollars, and will be translated into U.S. Dollars based on the prevailing conversion rate as published in the Wall Street Journal on the day the Conversion Price is set.

 

Fractional shares of our Common Stock will not be issued upon conversion of a Note; instead, you will receive one whole share for the fractional share of Common Stock that would otherwise be issuable to you upon conversion of your Note into Common Stock.

 

The Warrant Srike Price will be subject to adjustment as follows:

 

    If the number of shares of Common Stock outstanding changes by reason of a stock dividend, stock split, subdivision, recapitalization or other general distribution of Common Stock or other securities to holders of Common Stock, the Warrant Strike Price and/or the number and kind of securities into which the Warrants are exerciseable will be adjusted appropriately. For example, if our Common Stock underwent a two-for-one stock split, the applicable Warrant Strike Price would be reduced by 50%.

 

   

In addition, if there occurs, other than as described in the preceding paragraph, any merger, business combination, recapitalization, reclassification, subdivision or combination approved by our Board of Directors that would result in holders of Common Stock immediately prior to the effective time of any such transaction owning or holding, in lieu of or in addition to shares of Common Stock, other securities, money and/or property (or the right to receive other securities, money and/or property) immediately after the effective time of such transaction, then the Warrant Strike Price and/or the number and kind of securities into which the Warrants are exerciseable will be adjusted in a manner and at a time this is equitable under the circumstances. It is intended that in the event of any such transaction, the holder of a Note shall be entitled to receive (upon exercise of the attached Warrants), in lieu of or in addition to shares of our Common Stock, any other securities, money and/or property receivable upon consummation of any such transaction by holders of our Common Stock with respect to each share of Common Stock outstanding immediately prior to the effective time of such transaction. Upon any such adjustment, the holder of a Note will have only the right to receive (upon exercise of

 

4


 

the attached Warrants) in lieu of or in addition to shares of Common Stock such other securities, money and/or other property as provided by the adjustment. If the agreement, resolution or other document approved by our Board of Directors to effect any such transaction provides for the adjustment of the Warrant Strike Price in connection with such transaction, then the adjustment provisions contained in such agreement, resolution or other document will be final and conclusive.

 

Notwithstanding the foregoing, no adjustment in the Warrant Strike Price will be required unless the adjustment would require a change of at least one percent (1%) in the Warrant Strike Price then in effect; provided that any adjustment that would otherwise be required to be made will be carried forward and taken into account in any subsequent adjustment.

 

Except as stated above, the Warrant Strike Price will not be adjusted for the issuance of Common Stock or any securities convertible into or exchangeable for Common Stock or carrying the right to purchase any of the foregoing.

 

Page F-5 (Exhibit A) to the Form of Warrant included in Annex F to this Private Placement Memorandum sets forth the form of notice that you must deliver to us to exercise your Warrants and purchase Common Stock.

 

Unsecured Obligation

 

This Note represents an unsecured, subordinated obligation of the Company and only the Company. No recourse shall be had for the payment of the principal of, or the interest on, this Note, or for any claim based hereon, or otherwise in respect hereof, against any subsidiary or incorporator, shareholder, officer or director, as such, past, present or future, of the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released. This Note does not have any payment or liquidation preference.

 

Ranking; Subordination

 

This Note ranks equally with all other Outstanding Notes of the Company.

 

This Note will be subordinated to all current and future Senior Indebtedness of the Company. In addition, upon any distribution of the Company’s assets upon any dissolution, winding up, liquidation or reorganization of the Company, the payment of principal and interest on this Note will be subordinated to the prior payment in full of all Senior Indebtedness and secured creditors.

 

The term “ Senior Indebtedness ” means the principal of and premium, if any, and interest on all of the Company’s indebtedness for borrowed money (including all indebtedness for borrowed and purchased money, all obligations arising from off-balance sheet guarantees and direct credit substitutes, and obligations associated with derivative products such as interest and foreign exchange rate contracts and commodity contracts) that is outstanding on the issuance date of this Note or is thereafter created, incurred or assumed, for the payment of which the Company is at the time of determination responsible or liable as obligor, guarantor or otherwise. It also includes all deferrals, renewals, extensions and refundings of any such indebtedness or obligations. Senior Indebtedness does not include any indebtedness whose instrument creating or evidencing the indebtedness, or pursuant to which the indebtedness is outstanding, provides that the indebtedness is subordinate in right of payment to any of the Outstanding Notes.

 

5


The Notes are obligations exclusively of Gastar Exploration Ltd. Substantially all of Gastar’s operations are conducted by subsidiaries.

 

The Company’s subsidiaries are separate and distinct legal entities. These subsidiaries have no obligation to pay any amounts due on the Notes or to provide funds for Gastar’s payment obligations, whether by dividends, distributions, loans or other payments.

 

Gastar’s rights to receive any assets of any of it’s subsidiaries upon their liquidation or reorganization, and therefore the right of the holders of the Notes to participate in those assets, will be effectively subordinated to the claims of that subsidiary’s creditors, including trade creditors.

 

Events of Default and Acceleration

 

The following are events of default (each, an “ Event of Default ”) with respect to this Note:

 

  (1) the Company’s failure to pay any installment of interest on this Note when such installment is due and continuance of such default for a period of thirty (30) days after notice by the Holder to the Company of such default;

 

  (2) the Company’s failure to pay the Principal Amount of this Note at its Maturity Date after notice by the Holder to the Company of such default;

 

  (3) the entry by a court having competent jurisdiction of: (a) a decree or order for relief in respect of the Company in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; (b) a decree or order adjudging the Company to be insolvent, or approving a petition seeking reorganization, arrangement, adjustment or composition of the Company and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or (c) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee or other similar official of the Company or of any substantial part of the property of the Company, as the case may be, or ordering the winding up or liquidation of the affairs of the Company; and

 

  (4) the commencement by the Company of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company of a petition or answer or consent seeking reorganization or relief under any applicable law, or the consent by the Company to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company or any substantial part of the property of the Company or the making by the Company of an assignment for the benefit of creditors, or the taking of corporate action by the Company in furtherance of any such action.

 

If an Event of Default occurs and continues with respect to this Note, the Principal Amount and accrued but unpaid interest on this Note shall become immediately due and payable. Notwithstanding the foregoing, an Event of Default specified in clause (1) above shall no longer be deemed to exist if the

 

6


Company, at any time prior to the time that the Holder has obtained a judgment or decree for the payment of Principal Amount and accrued but unpaid interest on this Note, pays to the Holder cash in an amount sufficient to satisfy all overdue installments of any interest on this Note.

 

No Sinking Fund

 

This Note is not subject to any set-aside or “sinking” fund.

 

Ownership; Transfer

 

The Company and any agent of the Company may treat the Holder in whose name this Note is registered on the books of the Company to be the owner of this Note. Neither the Company nor any such agent shall be affected by notice to the contrary.

 

This note cannot be transferred or assigned except as described in the Private Placement Memorandum.

 

Additional Terms

 

This Note shall be governed by, and construed in accordance with, the laws of Michigan applicable to agreements made and performed entirely within such state.

 

The Company shall be entitled to withhold from all payments of principal of, and interest on, this Note any amounts required to be withheld under applicable income tax or other tax laws at the time of such payments.

 

The Company has caused this Note to be duly executed.

 

GASTAR EXPLORATION LTD.

By:

   

Name:

   

Title:

   

 

7


 

GASTAR EXPLORATION LTD.

10% SUBORDINATED NOTES DUE 5 YEARS AFTER ISSUANCE WITH ATTACHED

WARRANTS

 

SUBSCRIPTION INSTRUCTIONS

FOR

INDIVIDUALS

 

Gastar Exploration Ltd., an Alberta, Canada corporation (the “ Company ”), urges potential investors to carefully read the Company’s Private Placement Memorandum (“ Private Placement Memorandum ”) before subscribing. A person wishing to subscribe for the Company’s 10% Subordinated Notes 5 Years After Issuance (the “ Notes ”) must complete and sign (1) the attached Purchaser Questionnaire (the “ Purchaser Questionnaire ”) on the signature page and (2) the attached Subscription Agreement (the “ Subscription Agreement ”) on the signature page and have his or her signature notarized on the acknowledgment page. Information supplied by the Subscriber on the Purchaser Questionnaire and Subscription Agreement must be typed or printed.

 

Persons wishing to subscribe for Notes must return their completed subscription documents to the Company representative listed below.

 

Once submitted, a Subscription Agreement will be binding on the subscriber. Subscribers may not withdraw their Subscription Agreement unless such withdrawal right is granted by an authorized officer of the Company or by applicable securities laws.

 

Questions regarding how to invest in the Notes should be directed to the Company representative who has provided the Private Placement Memorandum to you or to:

 

Gastar Exploration, Ltd.

2480 W. Campus Drive, Bldg. C

Mt. Pleasant, Ml 48858

Ph.: 989-773-7050

Fax: 989-773-0006

 

8


GASTAR EXPLORATION LTD.

 

PURCHASER QUESTIONNAIRE

FOR

INDIVIDUALS

 

INSTRUCTIONS

 

The primary purpose of this Purchaser Questionnaire is to elicit information sufficient to permit Gastar Exploration Ltd. (the “ Company ”) to reasonably conclude that you (the “ Subscriber ”), as a potential purchaser of the Company’s 10% Subordinated Notes Due 5 Years After Issuance with Attached Warrants (the “ Notes ”), meet certain qualification standards for investing in the Notes. The Notes are being offered pursuant to exemptions from registration under the Securities Act of 1933, as amended (the “ Act ”), and applicable state and foreign securities laws.

 

If, in completing this Purchaser Questionnaire, you are in doubt regarding the meaning, implication or significance of any particular term or question, please contact a Company representative who has provided the Private Placement Memorandum to you or Gastar. If the answer to any question is “none” or “not applicable,” please so state. It is important that all questions be answered fully.

 

YOUR ANSWERS WILL AT ALL TIMES BE KEPT STRICTLY CONFIDENTIAL, EXCEPT AS PROVIDED BY LAW. EACH PERSON SIGNING THIS PURCHASER QUESTIONNAIRE AGREES, HOWEVER, THAT THE COMPANY MAY PRESENT THIS PURCHASER QUESTIONNAIRE TO SUCH PARTIES AS IT DEEMS APPROPRIATE IF CALLED UPON TO ESTABLISH THE AVAILABILITY OF AN EXEMPTION OR PREEMPTION FROM REGISTRATION OF THE NOTES UNDER THE ACT OR REGISTRATION OR QUALIFICATION OF THE NOTES UNDER THE SECURITIES LAWS OF ANY STATE OR FOREIGN JURISDICTION.

 

Please complete, sign, date and return this Purchaser Questionnaire, together with your completed, dated and signed Subscription Agreement accompanying this Purchaser Questionnaire (“ Subscription Agreement ”), to a Company representative or Gastar. You should retain a copy of each document for your files. By fully completing this Purchaser Questionnaire, you will avoid delay in your investment.

 

A. Identifying Information

 

Full Name(s):

    

Home Address:

    
 

Home Telephone:

       

Home Facsimile:

    

Business Address:

    
 

 

9


Business Telephone:____________________________________

  Business Facsimile: ___________________________

Date of Birth: _____________________________

  Marital Status: __________ single _________ married

 

In what state or foreign country do you maintain your principal residence?                                                               

 

If you have resided in the state or country listed above less than one year or plan to change your state or country of residence, or if there is any reason you might be considered a resident of another state or country (e.g., you (1) live part of the year, (2) have an office or business, (3) are registered to vote, (4) pay taxes, or (5) hold a driver’s license in another state or country), please explain:

 

_________________________________________________________________________________________________________

 

_________________________________________________________________________________________________________

 

_________________________________________________________________________________________________________

 

B. Employment and Background

 

If you want to invest as an individual, please furnish all of the following information regarding yourself. If you are investing jointly with a person other than your spouse , please also furnish all of the following information in this Part B regarding the other person who will participate in the investment decision. Attach additional sheets if necessary for a complete answer.

 

Education   

Undergraduate Degree

   ¨ yes    ¨ no
    

Graduate Degree

   ¨ yes    ¨ no
    

Post-Graduate Degree

   ¨ yes    ¨ no
Employment               

 

Name and Address of Current Employer:

    

_________________________________________________________________

      

_________________________________________________________________

      

_________________________________________________________________

Title/Position:

    

_________________________________________________________________

 

10


C. Investor Experience

 

  1. Prior Investment Experience (check the appropriate category)

 

¨ extensive

 

¨ substantial

 

¨ moderate

 

¨ none

2.       Business Experience (check all applicable categories) :

¨ public company

 

¨ private company

 

¨ directorship(s)

 

¨ officer position(s)

3.       Employment in Financial Institutions (e.g., brokerage firms, banks, insurance companies, etc.) (check all applicable categories) :

¨ owner

 

¨ officer

 

¨ analyst

   ¨  registered representative    ¨ other

         If other, please explain:

   

___________________________________________________________________________________________

4.       Training or Experience (check all applicable categories) :

¨ economics

 

¨ accounting

 

¨ taxation

   ¨  finance

 

D. “Accredited Investor” Status Determination

 

Please indicate by check mark(s) in the appropriate space(s) below the category or categories that accurately describe your status as an “accredited investor,” as that term is defined in Regulation D under the Act, or indicate that you are not an “accredited investor.”

 

¨  (1)

   A natural person (not an entity) whose individual net worth, or joint net worth with his or her spouse, at the time of his or her purchase exceeds $1,000,000.

¨  (2)

   A natural person (not an entity) who:
     ¨  (a)    had an individual income in excess of $200,000 in each of the preceding two years; or
     ¨  (b)    had joint income with his or her spouse in excess of $300,000 in each of those years.

 

Do you have a reasonable expectation of reaching the same income level in the current year?

 

Yes   ¨     No   ¨

 

¨  (3)

   A director or executive officer of the Company.

¨

   I am not an accredited investor.

 

11


E. Additional Questions

 

Please provide the following income and balance sheet information.

 

My gross income from all sources was (please check appropriate blank(s)):

 

     2001

  

For Calendar

2002


   2003

Alone was greater than —

              

$  50,000

   _____________    _____________    _____________

$100,000

   _____________    _____________    _____________

$200,000

   _____________    _____________    _____________

$300,000

   _____________    _____________    _____________

$500,000

   _____________    _____________    _____________

Jointly with spouse was greater than —

              

$  50,000

   _____________    _____________    _____________

$100,000

   _____________    _____________    _____________

$200,000

   _____________    _____________    _____________

$300,000

   _____________    _____________    _____________

$500,000

   _____________    _____________    _____________

I anticipate that my income (or joint income if investing with my spouse) in 2004 will exceed (check one):

$  50,000

   _____________    _____________    _____________

$100,000

   _____________    _____________    _____________

$200,000

   _____________    _____________    _____________

$300,000

   _____________    _____________    _____________

$500,000

   _____________    _____________    _____________

 

Is the amount for which you are subscribing more than 10% of your net worth?

 

Yes   ¨     No   ¨

 

12


F. Investor Sophistication

 

Select one alternative below by initialing on the appropriate line.

 

¨ I have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Company’s Notes, and do not desire to utilize a Purchaser Representative in connection with evaluating such merits and risks.

 

¨ I intend to use the services of the following named person(s) as Purchaser Representative(s) in connection with evaluating the merits and risks of an investment in the Company’s Notes:

 

List name, address and telephone number of each Purchaser Representative. (Your registered representative is not and cannot be your Purchaser Representative.)

 

Name:     

 

Address:    
     
Telephone Number:    
Position or Title:    

 

If the second alternative from above is initialed, a completed and signed Purchaser Representative Questionnaire must accompany this Purchaser Questionnaire. A Purchaser Representative Questionnaire is available from your registered representative.

 

13


G. Affirmation and Agreement

 

To the best of my knowledge and belief, the above information is true and correct in all respects. I agree that I will notify the Company immediately of any material change in any of the foregoing information prior to any purchase of Notes. I understand that the information being furnished in this Purchaser Questionnaire is required to enable the Company to determine whether offers and sales to the undersigned of Notes may be made without registration under federal and state securities laws.

 

         

Date:                          , 20     

      Signature
             
        (Print Name)

 

NOTE: Individual joint purchasers should sign a single Subscription Agreement; however each individual purchaser must complete and sign a separate copy of this Individual Purchaser Questionnaire.

 

14


 

GASTAR EXPLORATION LTD.

 

SUBSCRIPTION AGREEMENT

FOR INDIVIDUALS

 

1. Subscription.

 

(a) The undersigned (the “ Subscriber ”) hereby subscribes for a 10% Subordinated Note Due Five Years After Issuance With Attached Warrants of Gastar Exploration Ltd., an Alberta, Canada corporation (the “ Company ”), in the principal amount indicated on the signature page hereof (the “ Note ”). The Subscriber acknowledges and agrees that the Company will determine whether the Subscriber is acceptable to purchase the Note and that the Company’s determination with respect thereto shall be final. The Subscriber understands and agrees that this Subscription Agreement is irrevocable, unless otherwise required by applicable securities laws.

 

(b) This subscription, when and if accepted by the Company, will constitute the binding obligation of the Subscriber to purchase a Note in the principal amount indicated on the signature page hereof. By signing this Agreement, the Subscriber acknowledges that the Subscriber has received and reviewed the Company’s Private Placement Memorandum, as it may be amended or supplemented (the “ Private Placement Memorandum ”), including the section entitled “TERMS OF THE OFFERING AND HOW TO SUBSCRIBE,” and is not aware of any reason the Subscriber cannot meet the qualifications of that section.

 

(c) This subscription is not binding on the Company unless accepted in writing by the Company in its sole discretion after the Company’s receipt of all required subscription payments and subscription documents, properly executed. The Company may accept in its sole discretion all or any portion of the subscription amount set forth on the signature page hereto. If so accepted, this Agreement (i) will be binding upon the Subscriber’s successors and assigns and (ii) may not be canceled, terminated or revoked by the Subscriber, except as provided by law.

 

2. Representations, Warranties, and Agreements by Subscriber.

 

The Subscriber hereby represents, warrants, and agrees as follows:

 

(a) The Note is being purchased by the Subscriber and not by any other person or entity, with the funds of the Subscriber and not with the funds of any other person or entity, and for the account of the Subscriber, not as a nominee or agent and not for the account of any other person or entity. Upon acceptance of this Agreement by the Company, no other person or entity will have any interest, beneficial or otherwise, in the Note. The Subscriber is not obligated to transfer the Note, or any portion of it, to any other person or entity, nor does the Subscriber have any intention, agreement or understanding to do so. The Subscriber is purchasing the Note for investment for an indefinite period and not with a view to the sale or distribution of any part or all thereof by public or private sale or other disposition. The Subscriber has no intention of selling, granting any participation in, or otherwise distributing or disposing of the Note or any portion of it. The Subscriber does not intend to subdivide the purchase of the Note by the Subscriber with any person or entity.

 

(b) The Subscriber has been advised that the Note has not been registered under the Securities Act of 1933, as amended (the “ Act ”), or registered or qualified under any state or foreign securities law (the “ Law ”), on the ground that exemptions from or preemption of such registration and qualification requirements are available. The Subscriber understands that the Company is relying in part on the representations of the Subscriber as set forth herein and in the purchaser questionnaire, a copy of which

 

15


was provided with this Agreement (the “ Purchaser Questionnaire ”), for purposes of claiming such exemptions or preemption and that the basis for such exemptions or preemption may not be present if, notwithstanding the representations of the Subscriber, the Subscriber intends to acquire the Note for resale on the occurrence or non-occurrence of some predetermined event.

 

(c) The Subscriber has completed and signed the Purchaser Questionnaire. The information in the Purchaser Questionnaire is true, correct, and complete in all respects as of the date hereof and will be true, correct and complete as of the date of the closing of this subscription. If there should be any material change in such information prior to the Company’s acceptance of this Agreement, the Subscriber will immediately provide the Company with such information.

 

(d) The Subscriber acknowledges receipt of the Private Placement Memorandum (including the form of Note attached as Annex E thereto) and acknowledges that the Subscriber has been furnished with such financial and other information concerning the Company and the business of the Company as the Subscriber has requested and considers necessary, in connection with the investment by the Subscriber in the Notes. The Subscriber has carefully reviewed the Private Placement Memorandum (including, without limitation, the “RISK FACTORS” section therein) and has discussed with the Company or a person or persons acting on its behalf any questions the Subscriber may have had with respect thereto. The Subscriber understands and/or agrees:

 

  (i) the risks involved in this offering, including the speculative nature of the investment;

 

  (ii) the financial risks involved in this offering, including the risk of losing the entire investment made by the Subscriber;

 

  (iii) the lack of liquidity and restrictions on transfers of the Note;

 

  (iv) the tax consequences of this investment; and

 

  (v) that the terms of the Note are as set forth in the form of the Note attached as Annex E to the Private Placement Memorandum, as may be modified by the actual Note delivered to the Subscriber by the Company upon the Company’s acceptance of this Agreement. Without limiting the generality of the foregoing, the Subscriber understands and agrees that the Warrant Strike Price Premium (as that term is defined in the Private Placement Memorandum and the Note) is subject to adjustment as set forth in the Note and as described in the Private Placement Memorandum.

 

The Subscriber has consulted with legal, accounting, tax, investment, and other advisers to the Subscriber with respect to the tax treatment of an investment by the Subscriber in the Note and the merits and risks of an investment in the Note to the extent that such advice is deemed appropriate by the Subscriber.

 

The Subscriber acknowledges that all documents, records, and books pertaining to an investment in the Note have been made available for inspection by the Subscriber and the Subscriber’s attorney, accountant and Purchaser Representative (as defined in Rule 501 of Regulation D promulgated under the Act), if any, and that the books and records of the Company and any nonproprietary documentary information referred to within the Private Placement Memorandum requested by the Subscriber have been made available for inspection. The Subscriber and the Subscriber’s adviser(s) have had a reasonable opportunity to ask questions of and receive answers from the Company, or a person or persons acting on its behalf, concerning the offering, and all such questions have been answered to the full satisfaction of the Subscriber. No oral representations have been made or oral information furnished to the Subscriber or

 

16


his or her adviser(s) in connection with the offering that are in any way inconsistent with the statements made in the Private Placement Memorandum.

 

(e) The Subscriber: (i) has adequate means of providing for the current needs and possible contingencies of the Subscriber, apart from any income that the Subscriber might earn from an investment in the Company; (ii) has no need for liquidity of the investments made by the Subscriber in the Company; and (iii) can bear the economic risk of losing the entire investment of the Subscriber therein. The Subscriber, together with the Subscriber’s Purchaser Representative (if any), has such knowledge and experience in financial, tax and business matters to enable the Subscriber to utilize the information made available in connection with the offering of the Note, to evaluate the merits and risks of the prospective investment, and to make an informed investment decision with respect thereto.

 

(f) The Subscriber is over twenty-one (21) years of age (or the age of majority in the jurisdiction of residence of the Subscriber), and the address set forth on the signature page below is the Subscriber’s true and correct principal residence. The Subscriber has no present intention of relocating his or her principal residence to any other state or jurisdiction.

 

(g) The execution and delivery of this Agreement, the consummation of the transactions contemplated hereby and the performance of the Subscriber’s obligations hereunder will not conflict with, or result in any violation of or default under, any agreement or other instrument to which the Subscriber is a party or by which the Subscriber or any of his or her properties are bound, or any foreign or domestic permit, franchise, judgment, decree, statue, rule or regulation applicable to the Subscriber or the Subscriber’s properties.

 

3. Agreement to Refrain from Resales. Without in any way limiting the representations and warranties herein, the Subscriber further agrees that the Subscriber shall in no event pledge, hypothecate, sell, transfer, assign, or otherwise dispose of the Note or any portion thereof, nor shall the Subscriber receive any consideration for the Note or any portion thereof from any person, unless and until prior to any proposed pledge, hypothecation, sale, transfer, assignment, or other disposition:

 

(a) A registration statement on Form S-1 under the Act (or any other form appropriate for that purpose under the Act or any form replacing any such form) with respect to the Note shall be then effective and such disposition shall have been appropriately qualified in accordance with the Act, the Law, and any other applicable federal, state or foreign law; or

 

(b) (i) The Subscriber shall have furnished the Company with a detailed explanation of the proposed disposition; and (ii) the Subscriber shall have furnished the Company with an opinion of counsel, in form and substance satisfactory to the Company, to the effect that such disposition will not require registration of the Note under the Act or registration or qualification of the Note under any other federal, state or foreign securities law.

 

Furthermore, the Subscriber agrees to indemnify and hold harmless the Company with respect to all transfer taxes relating to any transfer of the Note. Any attempted pledge, hypothecation, sale, transfer, assignment or other disposition of the Note or any portion thereof not in compliance with this Section 3 shall be void and of no force or effect.

 

This Section 3 shall be binding upon transferees of the Note and the Subscriber shall, prior to any permissible transfer, obtain the transferee’s written acknowledgment of this Section 3.

 

4. Note to be Legended . The Subscriber understands and agrees that the Note may bear such legends as the Company may consider necessary or advisable to facilitate compliance with the Act, the Law, and any other securities law, including without limitation legends stating that the Note has not been registered under the Act or registered or qualified under the Law and setting forth the limitations on dispositions imposed hereby.

 

17


5. Note will be a Restricted Security. The Subscriber understands that the Note will be a “restricted security” as that term is defined in Rule 144 under the Act and, accordingly, that the Note must be held indefinitely unless it is subsequently registered under the Act and registered or qualified under any applicable Law or any other laws, or exemptions from such registration and qualification are available. The Subscriber understands that the Company is under no obligation to register the Note under the Act, to register or qualify the Note under any applicable Law, or to in any way assist the Subscriber to comply with any exemption under the Act, the Law, or any other law.

 

6. Indemnification. The Subscriber agrees to indemnify and defend the Company and its officers, directors, employees, affiliates and agents (the “ Indemnified Parties ”) and hold them harmless from and against any and all liability, damage, cost, or expense incurred on account of or arising out of:

 

(a) Any breach of or inaccuracy in the representations, warranties, or agreements of the Subscriber herein or in any document provided by the Subscriber to the Company, including, without limitation, the defense of any claim based on any allegation of fact inconsistent with any of such representations, warranties, or agreements;

 

(b) Any failure of the Subscriber to fulfill any of the terms or conditions of this Agreement;

 

(c) Any disposition of the Note or any portion thereof contrary to any of such representations, warranties, or agreements; and

 

(d) Any action, suit, or proceeding based on (i) a claim that any of such representations, warranties, or agreements were inaccurate or misleading, (ii) any cause of action for damages or redress from the Indemnified Parties or any of them under the Act or the Law, or (iii) any disposition of the Note or any portion thereof.

 

7. Successors. The representations, warranties, and agreements contained in this Agreement shall be binding on the Subscriber and the successors and legal representatives of the Subscriber and shall inure to the benefit of the respective successors and assigns of the Company.

 

8. Entire Agreement; Amendments. This Agreement constitutes the entire agreement and understanding among the parties with respect to the subject matter hereof and supersedes all prior agreements, negotiations, arrangements, and understandings relating to the subject matter of this Agreement. This Agreement may be amended, modified, superseded, or canceled and any of the terms, covenants, representations, warranties, or conditions in this Agreement may be waived, only by a written instrument signed by each party to this Agreement or, in the case of a waiver, by or on behalf of the party waiving compliance. The failure of any party at any time to require performance of any provision in this Agreement shall not affect the right at a later time to enforce that or any other provision. No waiver by any party of any condition, or of any breach of any term, covenant, representation, or warranty contained in this Agreement, in any one or more instances, shall be deemed to be a further or continuing waiver of that or any other condition or breach.

 

9. Governing Law. This Agreement and the rights and obligation of the parties under this Agreement shall be governed by, and interpreted and enforced in accordance with, the laws of Michigan, without regard to conflicts of law principles.

 

The undersigned Subscriber executes, accepts, adopts, and agrees to be bound by this Agreement by executing the signature page attached hereto on the date indicated and having such signature notarized on the acknowledgment page.

 

18


GASTAR EXPLORATION LTD.

 

SUBSCRIPTION AGREEMENT SIGNATURE PAGE

 

Principal Amount of Note Subscribed:

   $                                                          

 

TYPE OF INDIVIDUAL OWNERSHIP (Check One)

 

¨

 

INDIVIDUAL OWNERSHIP

(One signature required)

 

¨

  

COMMUNITY PROPERTY

(One signature required)

¨

 

JOINT TENANTS WITH RIGHT

OF SURVIVORSHIP

(Both parties must sign)

 

¨

  

TENANTS-IN-COMMON

(Both parties must sign)

       

¨

  

CUSTODIAN FOR MINOR

(Social Security Number

of Minor must be provided below)

 

INDIVIDUAL(S):

 

Dated:                      , 2004

 

First Party:

     

Second Party (if any):

         

Signature

     

Signature

         

Print or Type Name

     

Print or Type Name

         

Address

     

Address

         
         

Social Security Number

     

Social Security Number

 

19


INDIVIDUAL ACKNOWLEDGMENT

 

STATE OF

      )     
        )    ss.

COUNTY OF 

      )     

 

On this          day of                  , 2004, before me, a Notary Public in and for said State, duly commissioned and sworn, personally appeared                                                           personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is (are) subscribed to this instrument, and acknowledged to me that                  executed it.

 

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal on the date in this certificate first above written.

 

             
   

Notary Public

   

(Notary Seal)

 

My Commission expires:

   

 

INDIVIDUAL ACKNOWLEDGMENT

 

STATE OF

      )     
        )    ss.

COUNTY OF 

      )     

 

On this          day of                  , 2004, before me, a Notary Public in and for said State, duly commissioned and sworn, personally appeared                                                   personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is (are) subscribed to this instrument, and acknowledged to me that                  executed it.

 

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal on the date in this certificate first above written.

 

             
   

Notary Public

   

(Notary Seal)

 

My Commission expires:

   

 

20


ACCEPTANCE

 

Gastar Exploration Ltd., an Alberta corporation and the Company named above, hereby accepts the foregoing Subscription Agreement as of                      , 2004.

 

GASTAR EXPLORATION LTD.

By    

Its

   

 

21


 

GASTAR EXPLORATION LTD.

10% SUBORDINATED NOTES DUE 5 YEARS AFTER ISSUANCE WITH ATTACHED

WARRANTS

 

SUBSCRIPTION INSTRUCTIONS

FOR

NON-INDIVIDUAL ENTITIES

 

Gastar Exploration Ltd., an Alberta, Canada corporation (the “ Company ”), urges potential investors to carefully read the Company’s Private Placement Memorandum (“ Private Placement Memorandum ”) before subscribing. An entity wishing to subscribe for the Company’s 10% Subordinated Notes 5 Years After Issuance With Attached Warrants (the “ Notes ”) must complete and sign (1) the attached Purchaser Questionnaire (the “ Purchaser Questionnaire ”) on the appropriate signature page and (2) the attached Subscription Agreement (the “ Subscription Agreement ”) on the appropriate signature page and have its signature notarized on the appropriate acknowledgment page. Information supplied by the Subscriber on the Purchaser Questionnaire and Subscription Agreement must be typed or printed.

 

Entities wishing to subscribe for Notes must return their completed subscription documents to the Company representative listed below.

 

Once submitted, a Subscription Agreement will be binding on the subscriber. Subscribers may not withdraw their Subscription Agreement unless such withdrawal right is granted by an authorized officer of the Company or by applicable securities laws.

 

Questions regarding how to invest in the Notes should be directed to the Company representative who has provided the Private Placement Memorandum to you or to:

 

Gastar Exploration Ltd.

2480 W. Campus Drive, Bldg. C

Mt. Pleasant, Michigan 48858

Ph.: 989-773-7050

Fax: 989-773-0006

 

22


GASTAR EXPLORATION LTD.

 

PURCHASER QUESTIONNAIRE

FOR

NON-INDIVIDUAL ENTITIES

 

INSTRUCTIONS

 

The primary purpose of this Purchaser Questionnaire is to elicit information sufficient to permit Gastar Exploration Ltd. (the “ Company ”) to reasonably conclude that the entity you represent (the “ Subscriber ”), as a potential purchaser of the Company’s 10% Subordinated Notes Due 5 Years After Issuance With Attached Warrants (the “ Notes ”), meets certain qualification standards for investing in the Notes. The Notes are being offered pursuant to exemptions from registration under the Securities Act of 1933, as amended (the “ Act ”), and applicable state and foreign securities laws.

 

If, in completing this Purchaser Questionnaire, you are in doubt regarding the meaning, implication or significance of any particular term or question, please contact a Company representative who has provided the Private Placement Memorandum to you or the Company. If the answer to any question is “none” or “not applicable,” please so state. It is important that all questions be answered fully.

 

YOUR ANSWERS WILL AT ALL TIMES BE KEPT STRICTLY CONFIDENTIAL, EXCEPT AS PROVIDED BY LAW. EACH PERSON SIGNING THIS PURCHASER QUESTIONNAIRE AGREES, HOWEVER, THAT THE COMPANY MAY PRESENT THIS PURCHASER QUESTIONNAIRE TO SUCH PARTIES AS IT DEEMS APPROPRIATE IF CALLED UPON TO ESTABLISH THE AVAILABILITY OF AN EXEMPTION OR PREEMPTION FROM REGISTRATION OF THE NOTES UNDER THE ACT OR REGISTRATION OR QUALIFICATION OF THE NOTES UNDER THE SECURITIES LAWS OF ANY STATE OR FOREIGN JURISDICTION.

 

Please complete, sign, date and return this Purchaser Questionnaire, together with your completed, dated and signed Subscription Agreement accompanying this Purchaser Questionnaire (“ Subscription Agreement ”), to a Company representative or to the Company. You should retain a copy of each document for your files. By fully completing this Purchaser Questionnaire, you will avoid delay in your investment.

 

23


A. Identifying Information

 

General Information

 

Name of Entity     

 

Principal Place of Business Address     
 

 

Business Telephone No.           Business Facsimile No.    

 

Principal Contact(s) 

   
Employer Id. No.    

Business Activities

   
     

 

Jurisdiction and Year of Organization     

 

Has the corporation, limited liability company, partnership, trust, custodian, or other entity been formed for the specific purpose of making the investment contemplated herein?

 

¨ Yes              ¨ No

 

Has the corporation, limited liability company, partnership, trust, custodian, or other entity been in existence for less than 90 days prior to the date hereof?

 

¨ Yes              ¨ No

 

List the name and address of each equity holder or beneficiary in the corporation, limited liability company, partnership, trust, custodian, or other entity if it is not a public company (attach additional sheets as required):

 

Name         Address
           
           
           
           
           

 

24


Is the investor an “employee benefit plan” within the meaning of the Employment Retirement Income Security Act of 1974, as amended?

 

             ¨   Yes     ¨   No

 

If the investor is an entity other than such an “employee benefit plan,” what is the aggregate percentage of the value of each class of equity interests in the investor held by “employee benefit plans,” not counting interests held by any individual or entity with discretionary control over the assets of the investor?

 

                         percent.

 

Information Regarding Principals . Please provide the names, addresses and positions or titles of all managers, executive officers, trustees, general partners, members or persons holding similar positions with respect to the Subscriber who are authorized to make decisions and to act with respect to investments by the Subscriber generally. Use additional sheets if necessary.

 

Name/Position or Title


          

Address


              
              
              
              

 

Please provide the following information concerning the Subscriber’s specific authority to make an investment in the Company:

 

The name of each manager, officer, trustee, plan fiduciary, member, partner, or person holding a similar position with respect to the Subscriber who is authorized to make an investment in the Company on behalf of the Subscriber and who will be making the investment. Indicate whether each may act alone.

 

 
 

 

Please identify any other person whose permission or authorization is necessary to purchase Notes or to take action as a Subscriber.

 

 
 

 

25


B. Investor Experience . With respect to each person identified as a principal above who is making the decision to invest in the Company, please provide the following information. Please use additional sheets as necessary.

 

Education    Undergraduate Degree    ¨ yes    ¨ no
     Graduate Degree    ¨ yes    ¨ no
     Post-Graduate Degree    ¨ yes    ¨ no

Employment

              
Name and Address of Current Employer:          
           
           
           

                Title/Position:        

         

Prior Investment Experience (check the appropriate category) :

    

¨ extensive

  

¨ substantial

  

¨ moderate

  

¨ none

Business Experience (check all applicable categories) :

    

¨ public company

  

¨  private company

  

¨ directorship(s)

  

¨ officer position(s)

 

Employment in Financial Institutions (e.g., brokerage firms, banks, insurance companies, etc.) (check all applicable categories) :

 

¨ owner

 

¨ officer

 

¨ analyst

   ¨  registered representative    ¨ other

If other, please explain:

       

____________________________________________________________________________________________________________

____________________________________________________________________________________________________________

 

Training or Experience (check all applicable categories) :

 

economics

 

¨ accounting

 

¨ taxation

   ¨ finance

 

26


C. “ Accredited Investor Status Determination

 

Please indicate by check mark(s) in the appropriate space(s) below the category or categories that accurately describe the Subscriber’s status as an “accredited investor,” as that term is defined in Regulation D under the Act, or indicate that the Subscriber is not an “accredited investor.”

 

¨   (1)    A corporation, limited liability company, Massachusetts or similar business trust, or partnership, not
formed for the specific purpose of acquiring the Company’s Notes, with total assets in excess of
$5,000,000.
¨   (2)    An employee benefit plan within the meaning of the Employee Retirement Income Security Act of 1974,
wherein
         (a)    the investment decision is made by a plan fiduciary, as defined in Section 3(21) of such Act, which is (i) ¨ a bank, (ii) ¨ a savings and loan association, (iii) ¨ an insurance company, or (iv) ¨ a registered investment adviser;
         (b)    ¨ the employee benefit plan has total assets in excess of $5,000,000; or
         (c)    ¨ the employee benefit plan is a self-directed plan, with investment decisions made solely by persons that are accredited investors.
¨   (3)    A trust, with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the
Notes of the Company being offered, whose purchase is directed by a person who has such knowledge
and experience in financial and business matters that he or she is capable of evaluating the merits and
risks of the prospective investment in the Company.
¨   (4)    (a)    A bank as defined in Section 3(a)(2) of the Act, whether acting in its individual or fiduciary capacity.

 

(b) A savings and loan association or other institution as defined in Section 3(a)(5)(A) of the Act, whether acting in its individual or fiduciary capacity.

 

¨   (5)    A broker or dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934.
¨   (6)    An insurance company as defined in Section 2(13) of the Act.
¨   (7)    An investment company registered under the Investment Company Act of 1940 or a business
development company as defined in Section 2(a)(48) of the Investment Company Act of 1940.
¨   (8)    A Small Business Investment Company licensed by the U.S. Small Business Administration under
Section 301(c) or (d) of the Small Business Investment Act of 1958.
¨   (9)    A private business development company as defined in Section 202(a)(22) of the Investment Advisers
Act of 1940.

 

27


¨

 

(10)  An organization described in section 501(c)(3) of the Internal Revenue Code, as amended, not formed for the specific purpose of acquiring the securities of the Company being offered, with total assets in excess of $5,000,000.

¨

 

(11)  An entity in which all the equity owners are accredited investors.

¨

 

         The Subscriber is not an accredited investor.

 

If you have indicated category (2)(c) or category (11) above, please list below the names and categories of accreditation of the accredited investors making the investment decisions or the names of the equity owners (category (11)).

 

If you have indicated category (11) above, all equity owners must provide a completed and signed Purchaser Questionnaire for a non-individual entity or individual as appropriate. Attach additional pages if necessary.

 

Person Making Decision/Equity Owner


       

Accredited Investor Category


           
           
           
           

 

If you indicated category 3 above, please provide indicate whether the Trustee is independent of or is related to the trustor, the grantor, or the sponsor: ________________________________________________________________________________________

 
 
 

 

Special Note for Trusts : The application of the “accredited investor” categories to trusts is subject to complex regulatory interpretations. Accordingly, a trust attempting to qualify should deliver a copy of its trust agreement and may be required to deliver its other documents or a satisfactory opinion of its counsel, or both.

 

28


D. Additional Questions

 

Please provide the following income and balance sheet information.

 

The net income for the Subscriber under generally accepted accounting principles was (please check appropriate blank(s)):

 

     2001

   For Calendar
2002


   2003

Was greater than —

              

$   100,000

   __________    __________    __________

$   500,000

   __________    __________    __________

$1,000,000

   __________    __________    __________

The Subscriber anticipates that its net income in 2004 will exceed (check one):

$   100,000

   __________          

$   500,000

   __________          

$1,000,000

   __________          

 

29


D. Additional Questions (continued)

 

The Subscriber’s balance sheet information is as follows:

 

ASSETS


  

LIABILITIES


Cash on Hand ________________________________    Notes Payable _____________________________
     Accounts Payable __________________________
     Other Liabilities
Listed Securities    _________________________________________
(Market Value) ________________________________    _________________________________________
     _________________________________________

Unlisted Securities

(Market Value) ________________________________

   Encumbrances on Real Estate
Accounts Receivable ___________________________   

a.      ____________________________________

    

b.      ____________________________________

Notes Receivable ______________________________   

c.      ____________________________________

Real Estate    Encumbrances on
(Market Value)   

(a)    Equipment

a.      ____________________________________

  

(b)    Inventory

b.      ____________________________________

  

(c)    Accounts Receivable

c.      ____________________________________

  

a.      ____________________________________

    

b.      ____________________________________

    

c.      ____________________________________

 

Equipment ___________________________________              
Inventory ____________________________________       Total Liabilities          
Other Assets              

________________________________________

             

________________________________________

             

________________________________________

             

 

Total Assets

         

    Net Worth

         

 

Is the amount for which the Subscriber is subscribing less than 10% of the Subscriber’s net worth?

 

¨ Yes    ¨ No

 

30


E. Affirmation and Agreement

 

To the best of my knowledge and belief, the above information is true and correct in all respects. I agree that I will notify the Company immediately of any material change in any of the foregoing information prior to purchase of Notes. I understand that the information being furnished in this Purchaser Questionnaire is required to enable the Company to determine whether offers and sales to the undersigned of Notes may be made without registration under federal and state securities laws.

 

CORPORATION or LLC :        

Date:                          , 2004

       
           

Name of Corporation or LLC

            By:    
               

(Authorized Signature)

                 
           

(Print Name and Title of Signatory)

PARTNERSHIP :        

Date:                          , 2004

       
           

Name of Partnership

            By:    
               

(Authorized Signature)

             
           

(Print Name and Title of Signatory)

 

31


TRUST :        

Date:                          , 2004

           
           

Name of Trust

         
            By:    
               

(Signature of Trustee or other Authorized Person)

         
                 
               

(Print Name and Title of Signatory)

CUSTODIAN FOR MINOR :        

Date:                          , 2004

           
           

Print Name of Custodian

         
                 
           

(Signature of Custodian)

            Custodian for     
               

(Print Name of Minor)

               

under the                              Uniform Transfers

to Minors Act (State)

OTHER :            

Date:                          , 2004

           
           

Name of Entity

                 
            By:    
               

(Signature of Authorized Person)

                 
                 
           

(Print Name and Title of Signatory)

 

32


 

GASTAR EXPLORATION LTD.

 

SUBSCRIPTION AGREEMENT

FOR NON-INDIVIDUAL ENTITIES

 

1. Subscription .

 

(a) The undersigned (the “ Subscriber ”) hereby subscribes for a 10% Subordinated Note Due 5 Years After Issuance With Attached Warrants of Gastar Exploration Ltd., an Alberta, Canada corporation (the “ Company ”), in the principal amount indicated on the signature page hereof (the “ Note ”). The Subscriber acknowledges and agrees that the Company will determine whether the Subscriber is acceptable to purchase the Note and that the Company’s determination with respect thereto shall be final. The Subscriber understands and agrees that this Subscription Agreement is irrevocable, unless otherwise required by applicable securities laws.

 

(b) This subscription, when and if accepted by the Company, will constitute the binding obligation of the Subscriber to purchase a Note in the principal amount indicated on the signature page hereof. By signing this Agreement, the Subscriber acknowledges that the Subscriber has received and reviewed the Company’s April 2004 Private Placement Memorandum, as it may be amended or supplemented (the “ Private Placement Memorandum ”), including the section entitled “TERMS OF THE OFFERING AND HOW TO SUBSCRIBE,” and is not aware of any reason the Subscriber cannot meet the qualifications of that section.

 

(c) This subscription is not binding on the Company unless accepted in writing by the Company in its sole discretion after the Company’s receipt of all required subscription payments and subscription documents, properly executed. The Company may accept in its sole discretion all or any portion of the subscription amount set forth on the signature page hereto. If so accepted, this Agreement (i) will be binding upon the Subscriber’s successors and assigns and (ii) may not be canceled, terminated or revoked by the Subscriber, except as provided by law.

 

2. Representations, Warranties, and Agreements by Subscriber .

 

The Subscriber hereby represents, warrants, and agrees as follows:

 

(a) The Note is being purchased by the Subscriber and not by any other person or entity, with the funds of the Subscriber and not with the funds of any other person or entity, and for the account of the Subscriber, not as a nominee or agent and not for the account of any other person or entity. Upon acceptance of this Agreement by the Company, no other person or entity will have any interest, beneficial or otherwise, in the Note. The Subscriber is not obligated to transfer the Note, or any portion of it, to any other person or entity, nor does the Subscriber have any intention, agreement or understanding to do so. The Subscriber is purchasing the Note for investment for an indefinite period and not with a view to the sale or distribution of any part or all thereof by public or private sale or other disposition. The Subscriber has no intention of selling, granting any participation in, or otherwise distributing or disposing of the Note or any portion of it. The Subscriber does not intend to subdivide the purchase of the Note by the Subscriber with any person or entity.

 

(b) The Subscriber has been advised that the Note has not been registered under the Securities Act of 1933, as amended (the “ Act ”), or registered or qualified under any state or foreign securities law (the “ Law ”), on the ground that exemptions from or preemption of such registration and qualification requirements are available. The Subscriber understands that the Company is relying in part

 

33


on the representations of the Subscriber as set forth herein and in the purchaser questionnaire, a copy of which was provided with this Agreement (the “ Purchaser Questionnaire ”), for purposes of claiming such exemptions or preemption and that the basis for such exemptions or preemption may not be present if, notwithstanding the representations of the Subscriber, the Subscriber intends to acquire the Note for resale on the occurrence or non-occurrence of some predetermined event.

 

(c) The Subscriber has completed and signed the Purchaser Questionnaire. The information in the Purchaser Questionnaire is true, correct, and complete in all respects as of the date hereof and will be true, correct and complete as of the date of the closing of this subscription. If there should be any material change in such information prior to the Company’s acceptance of this Agreement, the Subscriber will immediately provide the Company with such information.

 

(d) The Subscriber acknowledges receipt of the Private Placement Memorandum (including the form of Note attached as Annex E thereto) and acknowledges that the Subscriber has been furnished with such financial and other information concerning the Company and the business of the Company as the Subscriber has requested and considers necessary, in connection with the investment by the Subscriber in the Notes. The Subscriber has carefully reviewed the Private Placement Memorandum (including, without limitation, the “RISK FACTORS” section therein) and has discussed with the Company or a person or persons acting on its behalf any questions the Subscriber may have had with respect thereto. The Subscriber understands and/or agrees:

 

  (i) the risks involved in this offering, including the speculative nature of the investment;

 

  (ii) the financial risks involved in this offering, including the risk of losing the entire investment made by the Subscriber;

 

  (iii) the lack of liquidity and restrictions on transfers of the Note;

 

  (iv) the tax consequences of this investment; and

 

  (v) that the terms of the Note are as set forth in the form of the Note attached as Annex E to the Private Placement Memorandum, as may be modified by the actual Note delivered to the Subscriber by the Company upon the Company’s acceptance of this Agreement. Without limiting the generality of the foregoing, the Subscriber understands and agrees that the Conversion Price (as that term is defined in the Private Placement Memorandum and the Note) is subject to adjustment as set forth in the Note and as described in the Private Placement Memorandum.

 

The Subscriber has consulted with legal, accounting, tax, investment, and other advisers to the Subscriber with respect to the tax treatment of an investment by the Subscriber in the Note and the merits and risks of an investment in the Note to the extent that such advice is deemed appropriate by the Subscriber.

 

The Subscriber acknowledges that all documents, records, and books pertaining to an investment in the Note have been made available for inspection by the Subscriber and the Subscriber’s attorney, accountant and Purchaser Representative (as defined in Rule 501 of Regulation D promulgated under the Act), if any, and that the books and records of the Company and any nonproprietary documentary information referred to within the Private Placement Memorandum requested by the Subscriber have been made available for inspection. The Subscriber and the Subscriber’s adviser(s) have had a reasonable opportunity to ask questions of and receive answers from the Company, or a person or

 

34


persons acting on its behalf, concerning the offering, and all such questions have been answered to the full satisfaction of the Subscriber. No oral representations have been made or oral information furnished to the Subscriber or its adviser(s) in connection with the offering that are in any way inconsistent with the statements made in the Private Placement Memorandum.

 

(e) The Subscriber: (i) has adequate means of providing for the current needs and possible contingencies of the Subscriber, apart from any income that the Subscriber might earn from an investment in the Company; (ii) has no need for liquidity of the investments made by the Subscriber in the Company; and (iii) can bear the economic risk of losing the entire investment of the Subscriber therein. The Subscriber, together with the Subscriber’s Purchaser Representative (if any), has such knowledge and experience in financial, tax and business matters to enable the Subscriber to utilize the information made available in connection with the offering of the Note, to evaluate the merits and risks of the prospective investment, and to make an informed investment decision with respect thereto.

 

(f) The address set forth on the signature page below is the Subscriber’s true and correct principal place of business, and the Subscriber has no present intention of maintaining its principal place of business in, any other state or jurisdiction.

 

(g) If the Subscriber is an unincorporated association, all of its members are citizens of the state or other jurisdiction in which the Subscriber’s principal place of business is located and are over twenty-one (21) years (or the age of majority in the jurisdiction of the principal place of business of the Subscriber). The requirements of the previous sentence will be deemed met if the Subscriber is an individual of such age who is acting as a custodian, trustee, or legally appointed personal representative for the beneficial investor (who may be under age). If the Subscriber is a corporation, limited liability company, partnership, trust, or other entity, the Subscriber was not formed for the purpose of investing in the Note and has or will have other substantial business or investments.

 

(h) The Subscriber is empowered and duly authorized to enter into this Agreement, and this Agreement is the legal, valid and binding agreement of the Subscriber, enforceable against the Subscriber in accordance with its terms. The person signing this Agreement on behalf of the Subscriber is empowered and duly authorized to do so. The execution and delivery of this Agreement, the consummation of the transactions contemplated hereby and the performance of the Subscriber’s obligations hereunder will not conflict with, or result in any violation of or default under, any provision of any governing instrument applicable to the Subscriber, or any agreement or other instrument to which the Subscriber is a party or by which the Subscriber or any of its properties are bound, or any foreign or domestic permit, franchise, judgment, decree, statue, rule or regulation applicable to the Subscriber or the Subscriber’s business or properties.

 

(i) The Subscriber represents and warrants that if the Note is being acquired by any “employee benefit plan” within the meaning of section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”), or other “benefit plan investor” (as defined in U.S. Department of Labor Reg. Sec. 2510.3-101 et. seq., as amended) or assets are being allocated to any insurance company separate account in which any such employee benefit plan or benefit plan investor (or related trust) has any interest (any such purchaser being referred to herein as a “ Benefit Plan Partner ”), such acquisition has been duly authorized in accordance with the governing documents of such Benefit Plan Partner.

 

35


3. Agreement to Refrain from Resales . Without in any way limiting the representations and warranties herein, the Subscriber further agrees that the Subscriber shall in no event pledge, hypothecate, sell, transfer, assign, or otherwise dispose of the Note or any portion thereof, nor shall the Subscriber receive any consideration for the Note or any portion thereof from any person, unless and until prior to any proposed pledge, hypothecation, sale, transfer, assignment, or other disposition:

 

(a) A registration statement on Form S-1 under the Act (or any other form appropriate for that purpose under the Act or any form replacing any such form) with respect to the Note shall be then effective and such disposition shall have been appropriately qualified in accordance with the Act, the Law, and any other applicable federal, state or foreign law; or

 

(b) (i) The Subscriber shall have furnished the Company with a detailed explanation of the proposed disposition; and (ii) the Subscriber shall have furnished the Company with an opinion of counsel, in form and substance satisfactory to the Company, to the effect that such disposition will not require registration of the Note under the Act or registration or qualification of the Note under any other federal, state or foreign securities law.

 

Furthermore, the Subscriber agrees to indemnify and hold harmless the Company with respect to all transfer taxes relating to any transfer of the Note. Any attempted pledge, hypothecation, sale, transfer, assignment or other disposition of the Note or any portion thereof not in compliance with this Section 3 shall be void and of no force or effect.

 

This Section 3 shall be binding upon transferees of the Note and the Subscriber shall, prior to any permissible transfer, obtain the transferee’s written acknowledgment of this Section 3.

 

4. Note to be Legended . The Subscriber understands and agrees that the Note may bear such legends as the Company may consider necessary or advisable to facilitate compliance with the Act, the Law, and any other securities law, including without limitation legends stating that the Note has not been registered under the Act or registered or qualified under the Law and setting forth the limitations on dispositions imposed hereby.

 

5. Note will be a Restricted Security . The Subscriber understands that the Note will be a “restricted security” as that term is defined in Rule 144 under the Act and, accordingly, that the Note must be held indefinitely unless it is subsequently registered under the Act and registered or qualified under any applicable Law or any other laws, or exemptions from such registration and qualification are available. The Subscriber understands that the Company is under no obligation to register the Note under the Act, to register or qualify the Note under any applicable Law, or to in any way assist the Subscriber to comply with any exemption under the Act, the Law, or any other law.

 

6. Indemnification . The Subscriber agrees to indemnify and defend the Company and its officers, directors, employees, affiliates and agents (the “ Indemnified Parties ”) and hold them harmless from and against any and all liability, damage, cost, or expense incurred on account of or arising out of:

 

(a) Any breach of or inaccuracy in the representations, warranties, or agreements of the Subscriber herein or in any document provided by the Subscriber to the Company, including, without limitation, the defense of any claim based on any allegation of fact inconsistent with any of such representations, warranties, or agreements;

 

(b) Any failure of the Subscriber to fulfill any of the terms or conditions of this Agreement;

 

36


(c) Any disposition of the Note or any portion thereof contrary to any of such representations, warranties, or agreements; and

 

(d) Any action, suit, or proceeding based on (i) a claim that any of such representations, warranties, or agreements were inaccurate or misleading, (ii) any cause of action for damages or redress from the Indemnified Parties or any of them under the Act or the Law, or (iii) any disposition of the Note or any portion thereof.

 

7. Successors . The representations, warranties, and agreements contained in this Agreement shall be binding on the Subscriber and the successors and legal representatives of the Subscriber and shall inure to the benefit of the respective successors and assigns of the Company.

 

8. Entire Agreement ; Amendments . This Agreement constitutes the entire agreement and understanding among the parties with respect to the subject matter hereof and supersedes all prior agreements, negotiations, arrangements, and understandings relating to the subject matter of this Agreement. This Agreement may be amended, modified, superseded, or canceled and any of the terms, covenants, representations, warranties, or conditions in this Agreement may be waived, only by a written instrument signed by each party to this Agreement or, in the case of a waiver, by or on behalf of the party waiving compliance. The failure of any party at any time to require performance of any provision in this Agreement shall not affect the right at a later time to enforce that or any other provision. No waiver by any party of any condition, or of any breach of any term, covenant, representation, or warranty contained in this Agreement, in any one or more instances, shall be deemed to be a further or continuing waiver of that or any other condition or breach.

 

9. Governing Law . This Agreement and the rights and obligation of the parties under this Agreement shall be governed by, and interpreted and enforced in accordance with, the laws of Michigan, without regard to conflicts of law principles.

 

The undersigned Subscriber executes, accepts, adopts, and agrees to be bound by this Agreement by executing the signature page attached hereto on the date indicated and having such signature notarized on the appropriate acknowledgment page.

 

37


GASTAR EXPLORATION LTD.

 

SUBSCRIPTION AGREEMENT SIGNATURE PAGE

 

Principal Amount of Note Subscribed:    $ ___________________

 

TYPE OF OWNERSHIP (Check One)

 

¨  

CORPORATION

  ¨    TRUST
¨   PARTNERSHIP   ¨    CUSTODIAN FOR MINOR
¨   LIMITED LIABILITY COMPANY   ¨    OTHER (Please specify type and include appropriate documentation)
¨   LIMITED LIABILITY PARTNERSHIP         

 

CORPORATION:

 

Please include articles of incorporation and corporate resolutions certified by the secretary of the corporation authorizing execution of Subscription Agreement by the person signing below.

 

Date:                      , 2004

 

 

Name of Corporation

Principal Place of Business Address:

 
 
 

State or Jurisdiction of Incorporation

 

 

By:

   
   

        (Authorized Signature)

 

(Print Name and Title of Signatory)

 

38


PARTNERSHIP:

 

Please include a certified copy of the Statement of Partnership or Partnership Agreement or any other documentation necessary to establish the authority of the person signing this Subscription Agreement.

 

Date:                      , 2004

 

 

Name of Partnership

Principal Place of Business Address:

 
 
 

State or Other Jurisdiction of Formation

 

By:

   
   

        (Authorized Signature)

 

(Print Name and Title of Signatory)

 

39


TRUST:

 

Please include a certified copy of the Trust Agreement and any other documentation necessary to establish the authority of the person signing this Subscription Agreement.

 

Date:              , 2004

 

Name of Trust

Principal Place of Business Address:

 
 
 

State or Other Jurisdiction of Settlement

 

 

By:

   
   

        (Authorized Signature)

     

(Print Name and Title of Signatory)

 

40


OTHER:

 

Please specify the nature of the entity and provide all documentation necessary to establish the power of such entity to subscribe for Shares and the authority of the person signing the Subscription Agreement.

 

Date:              , 2004

 

Name of Entity

Principal Place of Business Address:

 
 
 

State or Other Jurisdiction of Formation

 

 

By:

   
   

        (Signature of Authorized Person)

     

(Print Name and Title of Signatory)

 

41


CORPORATE ACKNOWLEDGMENT

 

STATE OF       )
        : ss.
COUNTY OF       )

 

On this              day of                  , 20          , before me, a Notary Public in and for said State, duly commissioned and sworn, personally appeared                      , personally known to me (or proved to me on the basis of satisfactory evidence) to be the                                          of                                          , a                      corporation, and executed the within instrument, on behalf of such corporation, and acknowledged to me that such corporation executed the same.

 

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal on the date in this certificate first above written.

 

       

Notary Public

   

(Notary Seal)

               
       

My Commission expires:

   

 

PARTNERSHIP ACKNOWLEDGMENT

 

STATE OF       )
        : ss.
COUNTY OF       )

 

On this              day of                      , 20          , before me, a Notary Public in and for said State, duly commissioned and sworn, personally appeared                              , personally known to me (or proved to me on the basis of satisfactory evidence) to be the                              of                              , a                                  partnership, and executed the within instrument, on behalf of such corporation, and acknowledged to me that such corporation executed the same.

 

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal on the date in this certificate first above written.

 

       

Notary Public

   

(Notary Seal)

               
       

My Commission expires:

   

 

42


 

TRUST ACKNOWLEDGMENT

 

STATE OF       )
        : ss.
COUNTY OF       )

 

On this          day of                          , 20        , before me, a Notary Public in and for said State, duly commissioned and sworn, personally appeared                                          , personally known to me (or proved to me on the basis of satisfactory evidence) to be a Trustee of the                                                                                   Trust, and executed the within instrument on behalf of said Trust.

 

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal on the date in this certificate first above written.

 

     
Notary Public    

(Notary Seal)

My Commission expires:    

 

OTHER ACKNOWLEDGMENT

 

STATE OF       )
        : ss.
COUNTY OF       )

 

On this          day of                          , 20        , before me, a Notary Public in and for said State, duly commissioned and sworn, personally appeared                                                                                   , personally known to me (or proved to me on the basis of satisfactory evidence) to be the                                                                                    of                                                   , a                                                                                   , and executed the within instrument, on behalf of such corporation, and acknowledged to me that such corporation executed the same.

 

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal on the date in this certificate first above written.

 

     
Notary Public    

(Notary Seal)

My Commission expires:    

 

43


 

ACCEPTANCE

 

Gastar Exploration Ltd., an Alberta corporation and the Company named above, hereby accepts the foregoing Subscription Agreement as of                  , 2004.

 

GASTAR EXPLORATION LTD.

By    

Its

   

 

44

Exhibit 4.15

 

Form of Warrant

 

Attached to 10% Subordinated Note


THE PURCHASE WARRANTS REPRESENTED BY THIS CERTIFICATE WILL BE VOID AND OF NO VALUE UNLESS EXERCISED NO SOONER THAN NINETY (90) DAYS AFTER THE CLOSING DATE OF YOUR INVESTMENT AND NO LATER THAN 4:30 p.m. (TORONTO TIME) SIXTY (60) MONTHS FROM THE DATE OF YOUR INVESTMENT.

 

EXCEPT AS OTHERWISE PROVIDED HEREIN, NO SALE, TRANSFER, PLEDGE OR OTHER DISPOSITION OF THIS WARRANT OR THE SHARES PURCHASABLE HEREUNDER SHALL BE MADE EXCEPT PURSUANT TO REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AN EXEMPTION THEREFROM, OR PURSUANT TO AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER THAT REGISTRATION IS NOT REQUIRED. TRANSFER OF THIS WARRANT IS ALSO SUBJECT TO AN AGREEMENT DATED APRIL 2004, A COPY OF WHICH IS AVAILABLE FROM THE ISSUER.

 

WARRANT CERTIFICATE

GASTAR EXPLORATION LTD.

 

(A Corporation subsisting under the laws of the Province of Alberta)

 

WARRANT

CERTIFICATE NO.             

  

                 PURCHASE WARRANTS entitling

the holder to acquire, subject to adjustment,

                             Common Shares for each

Purchase Warrant represented hereby.

  

 

THIS IS TO CERTIFY THAT                              (hereinafter referred to as the “holder”) is the registered holder of that number of Purchase Warrants to acquire Common Shares (as hereinafter defined) of Gastar Exploration Ltd. (the “Corporation”) as set forth in this Warrant certificate (“Warrant Certificate”). Each Purchase Warrant represented hereby entitles the holder thereof to acquire, in the manner and subject to the restrictions and adjustments set forth herein, beginning ninety (90) days after the closing date of the investment and at any time from time to time until 4:30 p.m. (Toronto Time) (the “Time of Expiry”) on                      , 2009 (the “Expiry Date”),                          fully paid and non-assessable common shares (“Common Shares”) of the Corporation, without nominal or par value, as such shares were constituted on                  , 2004 at a price of US$              per share, as further determined in the private placement memorandum.

 

The Purchase Warrants may, at the holder’s option, be exercised on a cashless basis (“Cashless Basis”) whereby the Corporation retains the number of Common Shares which, when multiplied by the last closing trading price and applicable Warrant Strike Price Premium (as defined in the private placement memorandum) on the date the Exercise Form is delivered to the Corporation, equals the aggregate exercise price for all of the Common Shares then exercised. The Corporation shall have the final determination of the closing price of the market upon which the Common Shares trade, the applicable Warrant Strike Price Premium and the number of Common Shares retained by the Corporation.

 

The right to acquire Common Shares hereunder may only be exercised by the holder within the time set forth above by:

 

a. duly completing and executing the Exercise Form attached hereto;

 

1


b. surrendering this Warrant Certificate to the head office of the Corporation; and

 

c. unless exercising the Purchase Warrants on a Cashless Basis, remitting cash, certified cheque, bank draft or money order in lawful money of the United States, payable to or to the order of the Corporation at par where this Warrant Certificate is so surrendered, for the aggregate purchase price of the Common Shares so subscribed for.

 

These Purchase Warrants may be surrendered only upon personal delivery hereof or, if sent by mail or other means of transmission, upon actual receipt thereof by the Corporation at the office referred to above.

 

Upon surrender of these Purchase Warrants, the person or persons in whose name or names the Common Shares issuable upon exercise of the Purchase Warrants are to be issued shall be deemed for all purposes (except as provided in the PPM hereinafter referred to) to be the holder or holders of record of such Common Shares and the Corporation has covenanted that it will (subject to the provisions of the PPM) cause a certificate or certificates representing such Common Shares to be delivered or mailed to the person or persons at the address or addresses specified in the Exercise Form within 30 Business Days.

 

The registered holder of this Warrant Certificate may acquire any lesser number of Common Shares than the number of Common Shares which may be acquired for the Purchase Warrants represented by this Warrant Certificate. In such event, the holder shall be entitled to receive a new certificate for the balance of the Common Shares which may be acquired. To the extent that the Warrant holder is entitled to receive on the exercise or partial exercise thereof a fraction of a Common Share, such right may only be exercised in respect of such fraction in combination with another Purchase Warrant or other Purchase Warrants which in the aggregate entitles the Warrant holder to receive a whole number of Common Shares.

 

If the Warrant holder is not able to or elects not to, combine Purchase Warrants so as to be entitled to acquire a whole number of Common Shares, the Corporation shall make an appropriate cash settlement. However, in respect of any Warrant holder, the Corporation shall only be required to make such a cash adjustment once and for one Purchase Warrant and no more. The amount of the cash adjustment with respect to the Common Share shall be equal to the fraction of the Common Share to which the Warrant holder would be entitled multiplied by the Current Market Price (as defined in the PPM).

 

In the event of any alteration of the Common Shares, including any subdivision, consolidation or reclassification, and in the event of any form of reorganization of the Corporation including any amalgamation, merger or arrangement, the holders of Purchase Warrants shall, upon exercise of the Purchase Warrants following the occurrence of any of those events, be entitled to receive the same number and kind of securities that they would have been entitled to receive had they exercised their Purchase Warrants immediately prior to the occurrence of those events.

 

The registered holder of this Warrant Certificate may, at any time prior to the Expiry Date, upon surrender hereof to the Corporation at its principal offices in the city of Mt. Pleasant, exchange this Warrant Certificate for other certificates entitling the holder to acquire, in the aggregate, the same number of Common Shares as may be acquired under this Warrant Certificate.

 

The holding of the Purchase Warrants evidenced by this Warrant Certificate shall not constitute the holder hereof a shareholder of the Corporation or entitle the holder to any right or interest in respect thereof except as expressly provided in the PPM or in this Warrant Certificate.

 

2


The PPM and other documents provide that all holders of Purchase Warrants shall be bound by any resolution passed at a meeting of the shareholders or by resolution of the board of directors in accordance with the provisions of the agreements and resolutions signed by the holders of Purchase Warrants entitled to acquire a specified majority of the Common Shares which may be acquired pursuant to all then outstanding Purchase Warrants.

 

The Purchase Warrants evidenced by this Warrant Certificate may be transferred on the register kept at the principal offices of the Corporation at its principal offices in Mt.Pleasant, Michigan by the registered holder hereof or its legal representatives or its attorney duly appointed by an instrument in writing in form and execution satisfactory to the Corporation.

 

This Warrant Certificate shall not be valid for any purpose whatever unless and until it has been certified by or on behalf of the Corporation.

 

Time shall be of the essence hereof. This Warrant Certificate shall be governed by and construed in accordance with the laws of the State of Michigan and the federal law applicable therein and shall be treated in all respects as a Michigan contract.

 

IN WITNESS WHEREOF the Corporation has caused this Warrant Certificate to be signed by its duly authorized officers.

 

GASTAR EXPLORATION LTD.

By:

   

Name:

   

Title:

   

Dated:

   

 

3


TRANSFER OF PURCHASE WARRANTS

 

FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers to                                          ,                      Purchase Warrants of Gastar Exploration Ltd. (the “Corporation”) registered in the name of the undersigned on the records of the Corporation represented by the Warrant Certificate attached and irrevocably appoints                      the attorney of the undersigned to transfer the said securities on the books or register with full power of substitution.

 

If less than all the Purchase Warrants represented by this Warrant Certificate are being transferred, the Warrant Certificate representing those Purchase Warrants not transferred will be registered in the name appearing on the face of this Warrant Certificate and such certificates (please check one):

 

(a) ¨  should be sent by first class mail to the following address:

_______________________________________________________________________________________

_______________________________________________________________________________________

(b) ¨  should be held for pick up at the principal office of the Corporation in Mt. Pleasant, Michigan, at which this Warrant Certificate is deposited.

 

DATED the      day of                      ,                 
           
Signature Guaranteed      

(Signature of Warrant holder)

 

4


Exhibit A

NOTICE OF EXERCISE OF WARRANTS AND PURCHASE OF COMMON STOCK

 

To: Gastar Exploration Ltd.

Attention: Chief Executive Officer

2480 W. Campus Drive, Bldg. C

Mt. Pleasant, Michigan 48858

 

Dear Sir or Madam:

 

The undersigned (the “ Holder ”) is the owner of the following note (the “ Note ”) of Gastar Exploration Ltd. (the “ Company ”):

 

Note No.:

 

Principal Amount:

 

Name of Registered Holder:

 

Signature of Registered Holder:                                                                                  

 

Maturity Date:

 

Warrant Strike Price:

 

(a) The Holder hereby elects to exercise the attached Warrants to acquire                                  shares of the Company’s common stock (“ Common Stock ”), in accordance with the terms and conditions set forth in the Note and in the Company’s Private Placement Memorandum dated April 14, 2004, as such Private Placement Memorandum may be supplemented or amended from time to time.

 

(b) (Mark Yes or No)              This number of Common Shares assumes that this Purchase Warrant has been exercised on a cashless basis whereby the Corporation will retain the number of Common Shares which, when multiplied by the closing trading price and the applicable Warrant Strike price Premium (as defined in the private placement memorandum) on the day this Exercise Form is delivered to the Corporation, equals the aggregate exercise price for all of the Common Shares exercised hereby (those Common Shares retained by the Corporation as well as the number of Common Shares delivered to the Holder).

 

Please deliver a stock certificate for the number of whole shares of Common Stock issuable upon this exercise of the Warrants to the registered holder set forth above at the following address:

 

Address:

   ___________________________________________________________________________
     ___________________________________________________________________________
     ___________________________________________________________________________

 

Social Security or other Taxpayer Identification No.: _______________________________________________

 

5


Instructions:

 

1. The registered holder may exercise its right to receive Common Shares by completing this form and surrendering this form and the original Warrant Certificate representing the Purchase Warrants being exercised to the Corporation at its principal office in Mt. Pleasant, Michigan. Certificates for Common Shares will be delivered or mailed within 30 business days after the exercise of the Purchase Warrants.

 

2. Signature of the Warrant holder must be the signature of the person appearing on the face of this Warrant Certificate.

 

3. If the Transfer Form is signed by a trustee, executor, administrator, curator, guardian, attorney, officer of a corporation or any person acting in a judiciary or representative capacity, the certificate must be accompanied by evidence of authority to sign satisfactory to the Corporation.

 

4. The signature on the Transfer Form must be guaranteed by an authorized officer of a chartered bank, trust company or an investment dealer who is a member of a recognized stock exchange.

 

5. The Purchase Warrants and the Common Shares issuable upon exercise thereof have not been registered under the United States Securities Act of 1933 , as amended (the “U.S. Securities Act”), or the securities laws of any state of the United States, and may not be transferred in the United States or to a U.S. Person unless the Purchase Warrants and the Common Shares have been registered under the U.S. Securities Act and the securities laws of all applicable states of the United States or an exemption from such registration requirements is available. In connection with any transfer of Purchase Warrants, the holder will be required to provide to the Corporation an opinion of counsel, or other evidence, in form reasonably satisfactory to the Corporation, to the effect that such transfer of Purchase Warrants does not require registration under the U.S. Securities Act or any applicable state laws and regulations governing the offer and sale of securities.

 

6

EXHIBIT 4.16

 

THE PURCHASE WARRANTS REPRESENTED BY THIS CERTIFICATE WILL BE VOID AND OF NO VALUE UNLESS EXERCISED NO SOONER THAN TWENTY-FOUR (24) MONTHS FROM THE DATE OF YOUR INVESTMENT AND NO LATER THAN 4:30 p.m. (TORONTO TIME), THIRTY SIX (36) MONTHS FROM THE DATE OF YOUR INVESTMENT.

 

EXCEPT AS OTHERWISE PROVIDED HEREIN, NO SALE, TRANSFER, PLEDGE OR OTHER DISPOSITION OF THIS WARRANT OR THE SHARES PURCHASABLE HEREUNDER SHALL BE MADE EXCEPT PURSUANT TO REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AN EXEMPTION THEREFROM, OR PURSUANT TO AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER THAT REGISTRATION IS NOT REQUIRED. TRANSFER OF THIS WARRANT IS ALSO SUBJECT TO AN AGREEMENT DATED APRIL 2002, A COPY OF WHICH IS AVAILABLE FROM THE ISSUER.

 

WARRANT CERTIFICATE

GASTAR EXPLORATION LTD.

(A Corporation subsisting under the laws of the Province of Alberta)

 

WARRANT    
CERTIFICATE NO.                                                     PURCHASE WARRANTS entitling the holder to acquire, subject to adjustment, one (1) Common Share for each Purchase Warrant represented hereby.

 

THIS IS TO CERTIFY THAT                              (hereinafter referred to as the “holder”) is the registered holder of that number of Purchase Warrants to acquire Common Shares (as hereinafter defined) of Gastar Exploration Ltd. (the “Corporation”) as set forth in this Warrant certificate (“Warrant Certificate”). Each Purchase Warrant represented hereby entitles the holder thereof to acquire, in the manner and subject to the restrictions and adjustments set forth herein, at any time and from time to time until 4:30 p.m. (Toronto Time) (the “Time of Expiry”) on September 23, 2005 (the “Expiry Date”),                      fully paid and non-assessable common shares (“Common Shares”) of the Corporation, without nominal or par value, as such shares were constituted on September 23, 2002 at a price of CDN$ 2.35 per share. The Purchase Warrants may, at the holder’s option, be exercised on a cashless basis (“Cashless Basis”) whereby the Corporation retains the number of Common Shares which, when multiplied by the last closing trading price on the date the Exercise Form is delivered to the Corporation, equals the aggregate exercise price for all of the Common Shares then exercised. The Corporation shall have the final determination of the closing price of the market upon which the Common Shares trade and the number of Common Shares retained by the Corporation.

 

The right to acquire Common Shares hereunder may only be exercised by the holder within the time set forth above by:

 

a. duly completing and executing the Exercise Form attached hereto;

 

b. surrendering this Warrant Certificate to the head office of the Corporation; and

 

c. unless exercising the Purchase Warrant on a Cashless Basis, remitting cash, certified cheque, bank draft or money order in lawful money of the United States, payable to or to the order of the Corporation at par where this Warrant Certificate is so surrendered, for the aggregate purchase price of the Common Shares so subscribed for.

 

These Purchase Warrants may be surrendered only upon personal delivery hereof or, if sent by mail or other means of transmission, upon actual receipt thereof by the Corporation at the office referred to above.

 

Upon surrender of these Purchase Warrants, the person or persons in whose name or names the Common Shares issuable upon exercise of the Purchase Warrants are to be issued shall be deemed for all purposes (except as provided in the PPM hereinafter referred to) to be the holder or holders of record of such Common Shares and the Corporation has covenanted that it will (subject to the provisions of the PPM) cause a certificate or certificates representing such Common Shares to be delivered or mailed to the person or persons at the address or addresses specified in the Exercise Form within three Business Days.


The registered holder of this Warrant Certificate may acquire any lesser number of Common Shares than the number of Common Shares which may be acquired for the Purchase Warrants represented by this Warrant Certificate. In such event, the holder shall be entitled to receive a new certificate for the balance of the Common Shares which may be acquired. To the extent that the Warrantholder is entitled to receive on the exercise or partial exercise thereof a fraction of a Common Share, such right may only be exercised in respect of such fraction in combination with another Purchase Warrant or other Purchase Warrants which in the aggregate entitles the Warrantholder to receive a whole number of Common Shares.

 

If the Warrantholder is not able to or elects not to, combine Purchase Warrants so as to be entitled to acquire a whole number of Common Shares, the Corporation shall make an appropriate cash settlement. However, in respect of any Warrantholder, the Corporation shall only be required to make such a cash adjustment once and for one Purchase Warrant and no more. The amount of the cash adjustment with respect to the Common Share shall be equal to the fraction of the Common Share to which the Warrantholder would be entitled multiplied by the Current Market Price (as defined in the PPM).

 

In the event of any alteration of the Common Shares, including any subdivision, consolidation or reclassification, and in the event of any form of reorganization of the Corporation including any amalgamation, merger or arrangement, the holders of Purchase Warrants shall, upon exercise of the Purchase Warrants following the occurrence of any of those events, be entitled to receive the same number and kind of securities that they would have been entitled to receive had they exercised their Purchase Warrants immediately prior to the occurrence of those events.

 

The registered holder of this Warrant Certificate may, at any time prior to the Expiry Date, upon surrender hereof to the Corporation at its principal offices in the city of Mt. Pleasant, exchange this Warrant Certificate for other certificates entitling the holder to acquire, in the aggregate, the same number of Common Shares as may be acquired under this Warrant Certificate.

 

The holding of the Purchase Warrants evidenced by this Warrant Certificate shall not constitute the holder hereof a shareholder of the Corporation or entitle the holder to any right or interest in respect thereof except as expressly provided in the PPM or in this Warrant Certificate.

 

The PPM and other documents provide that all holders of Purchase Warrants shall be bound by any resolution passed at a meeting of the shareholders or by resolution of the board of directors in accordance with the provisions of the agreements and resolutions signed by the holders of Purchase Warrants entitled to acquire a specified majority of the Common Shares which may be acquired pursuant to all then outstanding Purchase Warrants.

 

The Purchase Warrants evidenced by this Warrant Certificate may be transferred on the register kept at the principal offices of the Corporation at its principal offices in Mt.Pleasant, Michigan by the registered holder hereof or its legal representatives or its attorney duly appointed by an instrument in writing in form and execution satisfactory to the Corporation.

 

This Warrant Certificate shall not be valid for any purpose whatever unless and until it has been certified by or on behalf of the Corporation.


Time shall be of the essence hereof. This Warrant Certificate shall be governed by and construed in accordance with the laws of the State of Michigan and the federal law applicable therein and shall be treated in all respects as a Michigan contract.

 

IN WITNESS WHEREOF the Corporation has caused this Warrant Certificate to be signed by its duly authorized officers as of June                      , 2005.

 

GASTAR EXPLORATION LTD.
Per:  

 


    John W. Parrott, General Counsel


TRANSFER OF PURCHASE WARRANTS

 

FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers to                                          ,                          Purchase Warrants of Gastar Exploration Ltd. (the “Corporation”) registered in the name of the undersigned on the records of the Corporation represented by the Warrant Certificate attached and irrevocably appoints                      the attorney of the undersigned to transfer the said securities on the books or register with full power of substitution.

 

If less than all the Purchase Warrants represented by this Warrant Certificate are being transferred, the Warrant Certificate representing those Purchase Warrants not transferred will be registered in the name appearing on the face of this Warrant Certificate and such certificates (please check one):

 

(a)                   should be sent by first class mail to the following address:

 

                                                                                                                                                                                                             

 

                                                                                                                                                                                                             

 

(b)                   should be held for pick up at the principal office of the Corporation in Mt. Pleasant, Michigan, at which this Warrant Certificate is deposited.

 

DATED the      day of                      ,              .

 

   

 


Signature Guaranteed   (Signature of Warrantholder)

 

Instructions:

 

1. Signature of the Warrantholder must be the signature of the person appearing on the face of this Warrant Certificate.

 

2. If the Transfer Form is signed by a trustee, executor, administrator, curator, guardian, attorney, officer of a corporation or any person acting in a judiciary or representative capacity, the certificate must be accompanied by evidence of authority to sign satisfactory to the Corporation.

 

3. The signature on the Transfer Form must be guaranteed by an authorized officer of a chartered bank, trust company or an investment dealer who is a member of a recognized stock exchange.

 

4. Purchase Warrants shall only be transferable in accordance with applicable laws.

 

5. The Purchase Warrants and the Common Shares issuable upon exercise thereof have not been registered under the United States Securities Act of 1933 , as amended (the “U.S. Securities Act”), or the securities laws of any state of the United States, and may not be transferred in the United States or to a U.S. Person unless the Purchase Warrants and the Common Shares have been registered under the U.S. Securities Act and the securities laws of all applicable states of the United States or an exemption from such registration requirements is available. In connection with any transfer of Purchase Warrants, the holder will be required to provide to the Corporation an opinion of counsel, or other evidence, in form reasonably satisfactory to the Corporation, to the effect that such transfer of Purchase Warrants does not require registration under the U.S. Securities Act or any applicable state laws and regulations governing the offer and sale of securities.


EXERCISE FORM

 

      TO:         GASTAR EXPLORATION LTD.

 

(a) The undersigned hereby exercises the right to acquire                          Common Shares of Gastar Exploration Ltd. as constituted on April, 2002 (or such number of other securities or property to which such Purchase Warrants entitle the undersigned in lieu thereof or in addition thereto under the provisions of the PPM referred to in the accompanying Warrant Certificate).

 

(b) (Mark Yes or No)                      This number of Common Shares assumes that this Purchase Warrant has been exercised on a cashless basis whereby                              Common Shares will be retained by the Corporation and                      Common Shares will be delivered to the holder as directed below. In this cashless exercise the Corporation retains the number of Common Shares which, when multiplied by the closing trading price on the date of this Exercise Form, equals the aggregate exercise price for all of the Common Shares exercised hereby (those Common Shares retained by the Corporation as well as the number of Common Shares delivered to the Holder).

 

(b) The Common Shares (or other securities or property) are to be issued as follows:

 

Name:                                                                                                                                                                                                      

                      (print clearly)

 

Address in full:                                                                                                                                                                                         

 

                                                                                                                                                                                                                 

 

Social Insurance Number:                                                                                                                                                                       

 

Number of Common Shares:                                                                                                                                                                 

 

Note : If further nominees intended, please attach (and initial) schedule giving these particulars.

 

(c) Such securities (please check one):

 

                 should be sent by first class mail to the following address:

 

OR

 

                 should be held for pick up at the office of the Corporation at its principal office in Mt. Pleasant Michigan at which this Warrant Certificate is deposited.

 

If the number of Purchase Warrants exercised are less than the number of Purchase Warrants represented hereby, the undersigned requests that the new Warrant Certificate representing the balance of the Purchase Warrants be registered in the name of                                                                                                                                                                                                                        

 

                                                                                                                                                                                                                         

 

whose address is                                                                                                                                                                                               

 

                                                                                                                                                                                                                         


Such securities (please check one):

 

(a)                              should be sent by first class mail to the following address:

                                                                                                                                                                                                                         

 

                                                                                                                                                                                                                         

 

OR

 

(b)                   should be held for pick up at the office of the Warrant principal office of the Corporation at the Mt. Pleasant, Michigan at which this Warrant Certificate is deposited.

 

In the absence of instructions to the contrary, the securities or other property will be issued in the name of or to the holder hereof and will be sent by first class mail to the last address of the holder appearing on the register maintained for the Purchase Warrants.

 

DATED this      day of                      ,              .

 

 


 

 


Signature Guaranteed   (Signature of Warrantholder)
   

 


    Print full name
   

 


   

 


    Print full address


Instructions :

 

1. For the purposes of paragraphs (c) above, the following words and phrases have the following meanings:

 

“United States” and “U.S. Person” have the meaning given to such terms under Regulation S of the U.S. Securities Act. For purposes of Regulation S. “United States” means the United States of America, its territories and possessions, any statue of the United States and the District of Columbia. “U.S. Person” includes, with certain expectations, (i) any natural person resident in the United States; (ii) any partnership or corporation organized or incorporated under the laws of the United States; (iii) any estate of which any executor or administrator is a U.S. Person; (iv) any trust of which any trustee is a U.S. Person; (v) any agency or branch of a foreign entity located in the United States; (vi) any non-discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary for the benefit or account of a U.S. Person; (vii) any discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary organized, incorporated or (if any individual) resident in the United States; and (viii) any partnership or corporation if (a) organized or incorporated under the laws of any jurisdiction other than the United States and (b) formed by a U.S. Person principally for the purposes of investing in securities not registered under the U.S. Securities Act; and

 

“U.S. Securities Act” means the United States Securities Act of 1933, as amended.

 

2. The registered holder may exercise its right to receive Common Shares by completing this form and surrendering this form and the Warrant Certificate representing the Purchase Warrants being exercised to the Corporation at its principal office in Mt. Pleasant, Michigan. Certificates for Common Shares will be delivered or mailed within ten business days after the exercise of the Purchase Warrants.

 

3. If the Exercise Form indicates that Common Shares are to be issued to a person or persons other than the registered holder of the Certificate, the signature of such holder of the Exercise Form must be guaranteed by an authorized officer of a chartered bank, trust company or an investment dealer who is a member of a recognized stock exchange.

 

4. If the Exercise Form is signed by a trustee, executor, administrator, curator, guardian, attorney, officer of a corporation or any person acting in a fiduciary or representative capacity, the certificate must be accompanied by evidence of authority to sign satisfactory to the Corporation.

EXHIBIT 10.1

 

STOCK OPTION PLAN

APPROVED AT SHAREHOLDERS MEETING ON JULY 5, 2002.

 

1. Purpose

 

The purpose of the Stock Option Plan (the “Plan”) of Gastar Exploration Ltd. (the “Corporation”), a corporation governed by the Business Corporations Act (Alberta), is to advance the interests of the Corporation by encouraging the directors, officers, employees and consultants of the Corporation, and of its subsidiaries and affiliates, to acquire shares in the Corporation, thereby increasing their proprietary interest in the Corporation, encouraging them to remain associated with the Corporation and furnishing them with additional incentive in their efforts on behalf of the Corporation in the conduct of its affairs.

 

2. Administration

 

The Plan shall be administered by the Board of Directors of the Corporation or by a special committee of the directors appointed from time to time by the Board of Directors of the Corporation pursuant to rules of procedure fixed by the Board of Directors (such committee or, if no such committee is appointed, the Board of Directors of the Corporation is hereinafter referred to as the “Board”). A majority of the Board shall constitute a quorum, and the acts of a majority of the directors present at any meeting at which a quorum is present, or acts unanimously approved in writing, shall be the acts of the directors.

 

Subject to the provisions of the Plan, the Board shall have authority to construe and interpret the Plan and all option agreements entered into thereunder, to define the terms used in the Plan and in all option agreements entered into thereunder, to prescribe, amend and rescind rules and regulations relating to the Plan and to make all other determinations necessary or advisable for the administration of the Plan. All determinations and interpretations made by the Board shall be binding and conclusive on all participants in the Plan and on their legal personal representatives and beneficiaries.

 

Each option granted hereunder may be evidenced by an agreement in writing, signed on behalf of the Corporation and by the optionee, in such form as the Board shall approve. Each such agreement shall recite that it is subject to the provisions of this Plan.

 

3. Stock Exchange Rules

 

All options granted pursuant to this Plan shall be subject to rules and policies of any stock exchange or exchanges on which the Common Shares of the Corporation are then listed and any other regulatory body having jurisdiction hereinafter (collectively referred to as, the “Exchange”).

 

4. Shares Subject to Plan

 

Subject to adjustment as provided in Section 15 hereof, the shares to be offered under the Plan shall consist of shares of the Corporation’s authorized but unissued Common Shares. The aggregate number of shares issuable upon the exercise of all options granted under the Plan shall not exceed 25,000,000 Common Shares (which amount is exclusive of stock options granted prior to the implementation of the Plan). If any option granted hereunder shall expire or terminate for any reason in accordance with the terms of the Plan without being exercised, the unpurchased shares subject thereto shall again be available for the purpose of this Plan.

 

5. Maintenance of Sufficient Capital

 

The Corporation shall at all times during the term of the Plan reserve and keep available such numbers of shares as will be sufficient to satisfy the requirements of the Plan.


6. Eligibility and Participation

 

Directors, officers, consultants, and employees of the Corporation or its subsidiaries, and employees of a person or company which provides management services (excluding investor relations services) to the Corporation or its subsidiaries (“Management Company Employees”) shall be eligible for selection to participate in the Plan (such persons hereinafter collectively referred to as “Participants”). Subject to compliance with applicable requirements of the Exchange, Participants may elect to hold options granted to them in an incorporated entity wholly owned by them and such entity shall be bound by the Plan in the same manner as if the options were held by the Participant.

 

Subject to the terms hereof, the Board shall determine to whom options shall be granted, the terms and provisions of the respective option agreements, the time or times at which such options shall be granted and vested, and the number of shares to be subject to each option. In the case of employees or consultants of the Corporation or Management Company Employees, the option agreements to which they are party must contain a representation of the Corporation that such employee, consultant or Management Company Employee, as the case may be, is a bona fide employee, consultant or Management Company Employee of the Corporation or its subsidiaries.

 

An individual who has been granted an option may, if he is otherwise eligible, and if permitted under the policies of the Exchange, be granted an additional option or options if the Board shall so determine.

 

7. Exercise Price

 

  (a) The exercise price of the shares subject to each option shall be determined by the Board, subject to applicable Exchange approval, at the time any option is granted. In no event shall such price be lower than the price permitted by the Exchange.

 

  (b) Once the exercise price has been determined by the Board, accepted by the Exchange and the option has been granted, the exercise price of an option may only be reduced, in the case of options held by insiders of the Corporation (as defined by the Exchange), if disinterested shareholder approval is obtained at a meeting of the shareholders of the Corporation.

 

8. Number of Optioned Shares

 

The number of shares subject to an option granted to any one Participant shall be determined by the Board, but no one Participant shall be granted an option which exceeds the maximum number permitted by the Exchange.

 

9. Duration of Option

 

Each option and all rights thereunder shall be expressed to expire on the date set out in the option agreement and shall be subject to earlier termination as provided in Sections 11 and 12.

 

10. Option Period, Consideration and Payment

 

  (a) The option period shall be a period of time fixed by the Board not to exceed the maximum period of time permitted by the Exchange, provided that the option period shall be reduced with respect to any option as provided in Sections 11 and 12 covering cessation as a director, officer, consultant, employee or Management Company Employee of the Corporation or its subsidiaries, or death of the Participant.

 

  (b) Subject to the policies of the Exchange, an option shall vest and may be exercised (in each case to the nearest full share) during the option period:

 

  (i) in the circumstance where the number of shares reserved for issuance by the Board pursuant to the exercise of options granted is less than or equal to 10% of the number of issued and outstanding shares of the Corporation, in such manner as the Board may determine;

 

- 2 -


  (ii) in the circumstance where the Corporation is a Tier 2 Issuer, as defined in the policies of the Canadian Venture Exchange Inc., and the number of shares reserved for issuance by the Board pursuant to the exercise of options granted is greater than 10% of the issued and outstanding shares of the Corporation, in accordance with a vesting schedule which shall be established by the Board and which shall be acceptable to the Exchange.

 

  (c) Options which have vested, may be exercised in whole or in part at any time and from time to time during the option period. To the extent required by the Exchange, no options may be exercised under this Plan until this Plan has been approved by a resolution duly passed by the shareholders of the Corporation.

 

  (d) Except as set forth in Sections 11 and 12, no option may be exercised unless the Participant is at the time of such exercise a director, officer, consultant, or employee of the Corporation or any of its subsidiaries, or a Management Company Employee of the Corporation or any of its subsidiaries.

 

  (e) The exercise of any option will be contingent upon receipt by the Corporation at its head office of a written notice of exercise, specifying the number of Common Shares with respect to which the option is being exercised, accompanied by cash payment, certified cheque or bank draft for the full purchase price of such Common Shares with respect to which the option is exercised. No Participant or his legal representatives, legatees or distributees will be, or will be deemed to be, a holder of any shares subject to an option under this Plan, unless and until the certificates for such shares are issued to him or them under the terms of the Plan.

 

11. Ceasing To Be a Director, Officer, Consultant or Employee

 

If a Participant shall cease to be a director, officer, consultant, employee of the Corporation or its subsidiaries, or a Management Company Employee for any reason (other than death), he may exercise his option to the extent that he was entitled to exercise it at the date of such cessation, but only within 90 days after his ceasing to be a director, officer, consultant, employee or a Management Company Employee, unless such Participant was engaged in investor relations activities in which case, only within 30 days after the cessation of his services to the Corporation.

 

Nothing contained in the Plan, nor in any option granted pursuant to the Plan, shall as such confer upon any Participant any right with respect to continuance as a director, officer, consultant, employee or Management Company Employee of the Corporation or of any of its subsidiaries or affiliates.

 

12. Death of Participant

 

In the event of the death of a Participant, the option previously granted to him shall be exercisable only within the one (1) year after such death and then only:

 

  (a) by the person or persons to whom the Participant’s rights under the option shall pass by the Participant’s will or the laws of descent and distribution; and

 

  (b) if and to the extent that he was entitled to exercise the Option at the date of his death.

 

13. Rights of Optionee

 

No person entitled to exercise any option granted under the Plan shall have any of the rights or privileges of a shareholder of the Corporation in respect of any shares issuable upon exercise of such option until certificates representing such shares shall have been issued and delivered.

 

14. Proceeds from Sale of Shares

 

The proceeds from sale of shares issued upon the exercise of options shall be added to the general funds of the Corporation and shall thereafter be used from time to time for such corporate purposes as the Board may determine.

 

- 3 -


15. Adjustments

 

If the outstanding shares of the Corporation are increased, decreased, changed into or exchanged for a different number or kind of shares of securities of the Corporation through re-organization, merger, re-capitalization, re-classification, stock dividend, subdivision or consolidation, an appropriate and proportionate adjustment shall be made by the Board in its discretion in the number or kind of shares optioned and the exercise price per share, as regards previously granted and unexercised options or portions thereof, and as regards options which may be granted subsequent to any such change in the Corporation’s capital.

 

Upon the liquidation or dissolution of the Corporation or upon a re-organization, merger or consolidation of the Corporation with one or more corporations as a result of which the Corporation is not the surviving corporation, or upon the sale of substantially all of the property or more than eighty (80%) percent of the then outstanding shares of the Corporation to another corporation, the Plan shall terminate, and any options theretofore granted hereunder shall terminate unless provision is made in writing in connection with such transaction for the continuance of the Plan and for the assumption of options theretofore granted, or the substitution for such options of new options covering the shares of a successor employer corporation, or a parent or subsidiary thereof, with appropriate adjustments as to number and kind of shares and exercise prices, in which event the Plan and options theretofore granted shall continue in the manner and upon the terms so provided. If the Plan and unexercised options shall terminate pursuant to the foregoing sentence, the shares subject to all options granted shall immediately vest and all Participants then entitled to exercise an unexercised portion of options then outstanding shall have the right at such time immediately prior to consummation of the event which results in the termination of the Plan as the Corporation shall designate, to exercise their options to the full extent not theretofore exercised.

 

Adjustments under this Section shall be made by the Board whose determination as to what adjustments shall be made, and the extent thereof, shall be final, binding and conclusive. No fractional share shall be required to be issued under the Plan on any such adjustment.

 

16. Transferability

 

All benefits, rights and options accruing to any Participant in accordance with the terms and conditions of the Plan shall not be transferrable or assignable unless specifically provided herein or the extent, if any, permitted by the Exchange. During the lifetime of a Participant any benefits, rights and options may only be exercised by the Participant.

 

17. Amendment and Termination of Plan

 

Subject to applicable approval of the Exchange, the Board may, at any time, suspend or terminate the Plan. Subject to applicable approval of the Exchange, the Board may also at any time amend or revise the terms of the Plan, Provided that no such amendment or revision shall alter the terms of any options theretofore granted under the Plan.

 

18. Necessary Approvals

 

The ability of a Participant to exercise options and the obligation of the Corporation to issue and deliver shares in accordance with the Plan is subject to any approvals which may be required from shareholders of the Corporation and any regulatory authority or stock exchange having jurisdiction over the securities of the Corporation. If any shares cannot be issued to any Participant for whatever reason, the obligation of the Corporation to issue such shares shall terminate and any option exercise price paid to the Corporation will be returned to the Participant.

 

19. Effective Date of Plan

 

The Plan has been adopted by the Board of the Corporation subject to the approval of the Exchange and, if so approved, the Plan shall become effective upon such approvals being obtained.

 

20. Interpretation

 

The Plan will be governed by and construed in accordance with the laws of the Province of Alberta.

 

MADE by the Board of Directors of the Corporation as evidenced by the signature of the following director duly authorized in that behalf effective July 5, 2002.

 

    GASTAR EXPLORATION LTD.
Per:    
     

 

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EXHIBIT 10.2

 

EMPLOYMENT AGREEMENT

 

AGREEMENT , dated the 23 day of March, 2005, by and between FIRST SOURCENERGY WYOMING, INC. (“FSW”), GASTAR EXPLORATION, LTD., a Canadian corporation (“Gastar”), (FSW and Gastar are collectively “Company”), and J. RUSSELL PORTER (“Porter”).

 

WITNESSETH:

 

WHEREAS , Gastar has employed Porter as President and Chief Executive Officer (collectively “CEO”) of Gastar since February 24, 2004, and previously as Chief Operating Officer and Vice President since September 6, 2000, and desires to continue to do so; and

 

WHEREAS , the Board of Directors of Gastar (“Board”) recognizes that Porter has and will contribute significantly to the growth and success of the Company; and

 

WHEREAS , the Board desires to provide for the continued employment of Porter which the Board has determined will reinforce and encourage the continued attention and dedication of Porter as a member of the Company’s senior management, in the best interest of the Company; and

 

WHEREAS , Porter is willing to commit himself to continue serving the Company on the terms and conditions herein provided; and

 

NOW , THEREFORE , in consideration of the premises and the mutual covenants and obligations hereinafter set forth, the parties hereby agree as follows:

 

1. Employment . Effective February 24, 2004, Gastar agrees to employ Porter as its President and CEO, and Porter accepts such employment and agrees to serve the Company subject to the general supervision, advice and direction of the Board and upon the terms and conditions set forth in this Agreement.

 

2. Duties . Porter shall be the President and Chief Executive Officer of Gastar with such authority and duties as are customary in that position or as directed by the Board.

 

3. Term of Employment . Porter’s employment under this Agreement shall be effective as of February 24, 2005, and shall continue thereafter unless terminated in accordance with the provisions of this Agreement.

 

4. Termination of Employment . Notwithstanding any other provision of this Agreement, Porter’s employment shall terminate at any time as set forth below:

 

  (a) Porter’s employment shall terminate without notice upon Porter’s death;

 

  (b) Porter’s employment shall terminate without notice upon Porter’s Disability. The term “Disability” means the inability, due to physical or mental illness of Porter, to perform the essential functions of his position with or without accommodation, for a continuous period of twelve (12) months. The date of disability shall be deemed to be the last day of said twelve (12) month period. Successive periods of illness or injury due to the same or related causes shall be considered as one period of disability unless such period is separated by Porter’s return to full-time employment for three (3) successive months.

 

  (c) Porter may terminate Porter’s employment for any or no reason, with or without cause, upon six month’s written notice to Company.

 

  (d) Company may terminate Porter’s employment for any or no reason, with or without cause, upon one year’s written notice to Porter.


  (e) Company may also terminate Porter’s employment at any time without prior notice upon a showing of “Reasonable Cause.” “Reasonable Cause” shall be defined for purposes of this Agreement as being:

 

  (i) Any act or omission which constitutes dishonesty, disloyalty, fraud, deceit, gross negligence, willful misconduct or recklessness, including the willful violation of Company’s established policies and procedures;

 

  (ii) Any felony conviction under the laws of any state or the United States, which is affirmed on all appeals or not timely appealed;

 

  (iii) Breach of any material provision of this Agreement;

 

  (iv) Refusal to perform services that Porter is required to perform under this Agreement after explicit instructions from the board of the Company ordering Porter to perform such services;

 

  (v) Any other act that is determined by the affirmative vote of two-thirds of the shareholders, in their sole and absolute discretion, to constitute “Reasonable Cause” or to be detrimental to the best interests of the Company;

 

  (vi) Porter’s employment may not be terminated for Reasonable Cause unless Porter first has the opportunity to make a presentation at a meeting of the Board of Directors, and is given, at least ten (10) days before such meeting, a written description of the basis for the possible termination of Porter’s employment for Reasonable Cause.

 

Within 48 hours upon termination of his employment, Porter shall return to Company all confidential information and all originals and copies of any other property or information owned by Company or relating to its business, that Porter has in his possession or under his control, including all credit cards, papers, books, equipment, files, and automobiles.

 

5. Compensation . For all services rendered by Porter under this Agreement, Company shall pay Porter an annual salary of Four Hundred Fifty Thousand Dollars ($450,000) per year. Such salary may be adjusted upward, in the discretion of the Board and its Compensation Committee, at each year’s anniversary date of his employment as CEO, February 24. As such, his salary may be adjusted upward effective February 24 of each successive year. Porter’s salary may be adjusted downward at each anniversary date by the Board and its Compensation Committee, providing that Porter is given the basis for the Compensation Committees’ intended action and the opportunity to discuss it with them.

 

In addition, the Compensation Committee shall, on a yearly basis, or at such more frequent times as it may elect, determine and award Porter a bonus or bonuses. Such bonus or bonuses may take the form of cash compensation, the award of stock or stock options, royalty rights in property of the Company, or otherwise. Such annual cash bonuses shall in the aggregate equal at least 20% of Porter’s annual salary. The bonuses shall reflect not only the results of the Company’s operations and business, but of Porter’s contribution as President and CEO to the Company’s operations and business. It is agreed that Porter shall be paid a cash bonus of $150,000 for the calendar year 2004, such bonus to be paid prior to April 1, 2005.

 

6. Fringe Benefits .

 

  (a) Porter shall participate in, subject to eligibility requirements, Company’s employee pension plans and profit sharing plans, if any, and any other medical, dental, hospitalization, disability, life or other insurance or benefit programs on the same terms as apply to other executive staff employees of Company.

 

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  (b) Company shall pay or reimburse Porter up to Twenty Five Thousand Dollars ($25,000) for his membership dues in such clubs and/or organizations as are reasonable and customary for the President and CEO.

 

  (c) Company shall reimburse Porter for all necessary and reasonable business expenses incurred by him.

 

  (d) Company shall reimburse Porter for the cost of a yearly executive physical examination and all required or recommended medical testing in connection with that yearly examination.

 

7. Liability Insurance and Indemnification .

 

The Company represents and warrants that Gastar has in place Directors and Officers liability Insurance Policies, naming Porter as an insured against any and all claims, actions, causes of action, lawsuits or investigations which could be brought against Porter in his capacity as President and Chief Executive Officer of Gastar, subject only to the specific exclusions set forth in said Policies. For the duration of the period of time for which Porter shall be an employee of the Company, including as the President and Chief Executive Officer of Gastar, the Company shall maintain these policies and timely pay all premiums due under those policies. The Company shall acquire such “tail” or other policies of insurance to continue the coverage of Porter, should he no longer be employed by the Company to cover any subsequent claims, actions, lawsuits, causes of action or investigations brought against Porter while in the capacity of President and CEO of the Company.

 

The Company shall indemnify and hold Porter harmless from any action, claim, lawsuit, cause of action or investigation brought against Porter, as the President and Chief Executive Officer of the Company, regardless of whether the Directors and Officers Liability Insurance Policies are in place, and regardless of whether Porter has left the employ of the Company as President, CEO, or otherwise. This agreement by the Company to indemnify and hold Porter harmless shall include the Company’s obligation to pay all damages, injuries and penalties incurred by Porter or against Porter, and Porter’s costs and reasonable attorneys’ fees. This agreement to indemnify and hold harmless shall not apply if and only if Porter is convicted of a felony which is affirmed on appeals or is not appealed, or is found guilty, by final verdict, of fraud.

 

8. Severance .

 

  (a) When Severance is Paid . Company shall pay a severance benefit to Porter if Porter’s employment is terminated pursuant to Section 4(a), 4(b), 4(c) and 4(d). No severance shall be paid if Porter’s employment is terminated pursuant to Section 4(e).

 

  (b) Amount of Severance Payment . Porter shall receive severance pay of two (2) years total compensation if his severance occurs after February 24, 2004. The severance payment will consist of the payment of Porter’s W-2 compensation earned in the calendar year coincident with or immediately preceding Porter’s termination of employment, payable over the appropriate number of weeks after termination of employment (the “Severance Pay Period”) and continuation of health insurance for Porter and his family at Company’s expense during the Severance Pay Period. Such health insurance shall be provided only if Porter timely elects COBRA continuation coverage. The duration of the provision of health inspection shall be subject to the limitations imposed by law and the Company’s insurance plan, notwithstanding the prior sentence. If Porter dies during the Severance Pay Period, Severance Pay and health benefits will continue for the benefit of Porter’s eligible beneficiary during the remainder of the Severance Pay Period.

 

9. Vesting of Stock Options . Effective on the date of Porter’s termination of employment pursuant to Paragraph 4 above, the unvested portion of any and all stock options held by Porter on such date, shall immediately become fully vested. All other terms and conditions of such stock options shall remain unchanged.

 

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10. Time Off . Porter shall be entitled each year to sick and holiday time off with full pay and benefits under arrangements equivalent to those that apply generally to all employees of Company. Porter shall also be entitled to twenty (20) working days (Monday through Friday) of vacation time off per full calendar year. Up to ten (10) days of vacation which are not used in each calendar year shall be paid to Porter in a lump sum within thirty (30) days of termination of employment for any reason. Such payment shall be based on Porter’s W-2 compensation for the calendar year ending coincident with or immediately preceding Porter’s termination of employment multiplied by the number of days of accumulated vacation divided by 365 (e.g., if Porter accumulates 10 days in each year for ten (10) years he shall be paid for 100 days upon termination of employment).

 

11. Moving and Relocation Expenses . Porter’s reasonable moving and relocation expenses shall be completely paid for by the Company if the Board determines that it is the best interests of the Company for him to reside at a location other than Miami, Florida.

 

12. Restrictive Covenant .

 

  (a) Porter will not, at any time, either during or after employment with Company, use or disclose to others any trade secrets (such as information, strategy, procedures, policies or practices relating to financial, marketing and/or operational data) or other confidential information about Company’s business or any of its proprietary rights, except as required in the ordinary course of performing employment duties for Company.

 

  (b) On termination of employment, Porter will deliver to Company all documents or papers (including diskettes or any other medium for electronic storage of information) relating to Company’s business or such trade secrets (such as information, strategy, procedures, policies or practices relating to financial, marketing and/or operational data) or confidential information that is in Porter’s possession or under Porter’s control without making copies or summaries of any such material.

 

  (c) Porter agrees that Company is entitled to be protected from the possibility that Porter may seek to become associated with a business competes with Company. Porter agrees therefore as follows:

 

  (i) For a period of two (2) year(s) from Porter’s termination of employment with Company pursuant to Paragraphs 4(a), 4(b), 4(c) or 4(d) above, Porter shall not directly or indirectly, whether as an equity owner, employee, consultant, officer, or director, or in any other capacity, engage in or have an interest in any business involved in direct competition with the Company in the exploration for and production of oil, gas or other hydrocarbons.

 

  (ii) For a period of six (6) months from Porter’s termination of employment with Company pursuant to Paragraph 4(e) above, Porter shall not directly or indirectly, whether as an equity owner, employee, consultant, officer or director, or in any other capacity, engage in or have an interest in any business involved in direct competition with the Company in the exploration for and production of oil, gas or other hydrocarbons.

 

  (iii) Porter acknowledges that if this Agreement is violated, it will cause severe and irreparable injury to Company and its good will, an injury that is not adequately compensable by money damages. Accordingly, in the event of a breach (or attempted breach) of this Agreement, Company shall, in addition to any other rights or remedies, be entitled to immediate appropriate injunctive relief, such as an injunction, preliminary injunction or temporary restraining order, prohibiting any breach or threatened breach of this Agreement, or a decree of specific performance of this Agreement, without the necessity of showing any irreparable injury or special damages.

 

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13. Company Facilities and Staff Support . Company shall provide and maintain (or cause to be provided and maintained) such facilities, equipment, supplies, and staff support as are deemed appropriate by the Board of Directors in its sole discretion, after consultation with Porter to be necessary for Porter’s performance of his professional duties under this Agreement.

 

14. Accounting . All determinations under this Agreement including, but not limited to, compensation and bonuses shall be made using accounting principles consistently applied in preparation of Company’s income tax returns by the independent certified public accounting then serving the Company, whose determination shall be binding on all parties. The determination of the accountant is not subject to arbitration or any other review by any tribunal or court and both Porter and Company specifically waive any right to challenge the determination of the accountant.

 

15. Miscellaneous Provisions .

 

  (a) Notices . Unless otherwise agreed in writing, all notices required by this Agreement shall be in writing and shall be deemed given when physically delivered to a party or its duly authorized attorney or legal representative, or when deposited paid, registered or certified mail, addressed to the party at its principle business or residence, as set forth in Company’s records, or as known to or reasonably ascertainable by the party required to give notice.

 

  (b) General Rule of Construction . The parties have participated jointly in the negotiating and drafting of this Agreement. If a question concerning intent or interpretation arises, no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of authorship.

 

  (c) Waivers . No assent, express or implied, by any party to any breach o default under this Agreement shall constitute a waiver of or assent to any breach or default of any other provision of this Agreement or any breach or default of the same provision on any other occasion.

 

  (d) Entire Agreement and Modification . This Agreement constitutes the entire agreement of the parties concerning its subject matter and supersedes all other oral or written understandings, discussions, and agreements, and may be modified only in a writing signed by all parties.

 

  (e) Binding Effect; No Third Party Beneficiaries . This Agreement shall bind and benefit the parties and their respective heirs, devisees, beneficiaries, grantees, donees, legal representatives, successors and assigns. Nothing in this Agreement shall be construed to confer any rights or benefits on third party beneficiaries.

 

  (f) Assignment . Neither party may assign its interest in this Agreement without the other’s prior written consent; provided, however, that Company may assign its interest to another entity that it controls, is controlled by, or is under common control with.

 

  (g) Captions . Titles or captions contained in this Agreement are for convenience and are not intended to affect the substantive meaning of any provision.

 

  (h)

Severability . Porter and Company hereby expressly agree and contract that it is not the intention of either party to violate any public policy, statutory or common law, and that if any sentence, paragraph, clause or combination of the same of this Agreement is in violation of the law of any state where applicable, such sentence, paragraph, clause or combination of the same shall be void in the jurisdiction where it is unlawful, and the remainder of the Agreement shall remain binding on the parties hereto. It is the intention of Porter and Company to make the covenants of this Agreement binding only to the extent that it may be lawfully done under the existing applicable laws. In the event that any part of any covenant of this Agreement is determined by a court of law to be overly broad thereby making the covenant unenforceable, the Company and Porter hereto agree, and it is their desire, that such court shall substitute a reasonable and enforceable limitation

 

5


 

in place of the offensive part of the covenant, and that as so modified the covenant shall be as fully enforced as set forth herein by the parties themselves in the modified form, such modification to apply only in the jurisdiction of the court that has made the adjudication.

 

  (i) Counterparts . This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

 

  (j) Effect of Termination . This Agreement shall continue in effect upon and after the termination of Porter’s employment for any reason to the extent necessary for the enforcement of any of its provisions that apply subsequent to any such termination.

 

  (k) Dispute Resolution . Any and all disputes between the parties, including any claims arising out this Agreement or its termination, or any claim of employment discrimination, shall be settled by in the United States District Court for the Eastern District of Michigan, Northern Division.

 

  (l) Governing Law . This Agreement shall be governed by and construed under the laws of the State of Michigan; and secondarily the laws of the United States.

 

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IN WITNESS WHEREOF , the parties have executed this Agreement to be effective as specified above.

 

First Sourcenergy Wyoming, Inc.        
        J. RUSSELL PORTER
By:           Date:    

Its:

               

Date: 

               

 

Gastar Exploration, Ltd.        
By:                

Its:

               

Date: 

               

 

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EXHIBIT 10.3

 

EMPLOYMENT AGREEMENT

 

AGREEMENT , dated the 26 day of April, 2005, by and between FIRST SOURCENERGY WYOMING, INC. (“FSW’), GASTAR EXPLORATION, LTD., a Canadian corporation (“Gastar”), (FSW and Gastar are collectively “Gastar” or “Company”), and Michael A. Gerlich (“Gerlich”).

 

WITNESSETH:

 

WHEREAS , Gastar seeks to employ Gerlich as Vice President and Chief Financial Officer (collectively “CFO”) of Gastar effective May 17, 2005 (“Effective Date”); and

 

WHEREAS , the Board of Directors of Gastar (“Board”) believes that Gerlich may contribute significantly to the growth and success of the Company; and

 

WHEREAS , Gerlich is willing to become employed by the Company on the terms and conditions set forth herein.

 

NOW , THEREFORE , in consideration of the premises and the mutual covenants and obligations set forth herein, the parties hereto agree as follows:

 

1. Employment . Effective May 17, 2005, subject to the terms and conditions herein, Gastar shall employ Gerlich as CFO. Gerlich accepts such employment, subject to the terms and conditions herein Gerlich shall serve the Company and be subject to the general supervision, advice and direction of the Chief Executive Officer (“CEO”) and Board.

 

2. Duties . Gerlich shall be the Vice President and Chief Financial Officer of Gastar with such authority and duties as are customary for that position, or as directed by the CEO and Board.

 

3. Term of Employment . Gerlich’s employment shall be effective as of May 17, 2005, and shall continue thereafter unless sooner terminated in accordance with the provisions of this Agreement.

 

4. Termination of Employment . Notwithstanding any other provision of this Agreement to the contrary, Gerlich’s employment shall terminate at any time as set forth below:

 

  (a) Gerlich’s employment shall terminate without notice upon Gerlich’s death;

 

  (b) Gerlich’s employment shall terminate without notice upon Gerlich’s Disability. As used herein only, the term “Disability” means the inability, due to physical or mental illness of Gerlich, to perform, in the sole opinion of the CEO, the functions essential to his position with or without accommodation, for more than fifty (50%) of the time during a continuous period of twelve (12) months. The date of disability shall be deemed to be the last day of said twelve (12) month period, or the last day on which Gerlich’s disability, taken with the prior days during that 12 month period, exceeds said fifty percent (50%) of the time whichever date occurs earlier. Successive periods of illness or injury due to the same or related causes shall be considered as one period of disability unless such period is separated by Gerlich’s return to full-time employment for three (3) successive months.

 

  (c)

After the first full, complete year of Gerlich’s employment, Gerlich may terminate his employment for any or no reason, with or without cause, upon two (2) month’s written notice to Company. During the first year of Gerlich’s employment, this written notice period shall be one (1) month. Notwithstanding the other provisions of this Section 4(c), if there is a “change of control” in the Company, whether as a result of a sale of all or substantially all of its assets, purchase of over 50% of the stock of the Company, or through merger, consolidation, corporate restructuring or otherwise, and that “change in control” results in a material change in the scope of


 

Gerlich’s duties and responsibilities such that Gerlich terminates his employment, Severance shall be payable to Gerlich by the Company as provided in Section 8 herein.

 

  (d) After the first year of Gerlich’s full, complete employment, Company may terminate Gerlich’s employment for any or no reason, with or without cause, upon two (2) months written notice to Gerlich. During the first year of Gerlich’s employment, this written notice period shall be one (1) month.

 

  (e) Company may terminate Gerlich’s employment at any time, without prior notice, upon a showing of “Reasonable Cause.” “Reasonable Cause” shall be defined for purposes of this Agreement as being:

 

  (i) Any act or omission which constitutes dishonesty, disloyalty, fraud, deceit, intentional misconduct, or recklessness with respect to a material part of his duties, including the willful violation of Company’s established written policies and procedures. Any act or omission by Gerlich done at the direction of, or under the guidance of senior management of the Company, its Board, its outside counsel, or its independent auditors, which direction and guidance Gerlich reasonably follows, shall not be considered intentional misconduct or recklessness. Further, Gerlich’s refusal to relocate to an office of the Company more than 50 miles from its current location in Houston, Texas shall not be considered intentional misconduct.

 

  (ii) Any felony conviction under the laws of any state or the United States, which is affirmed on all appeals or not timely appealed;

 

  (iii) Breach of any material provision of this Agreement, which breach is not cured within thirty (30) days of written notice to Gerlich of said breach;

 

  (iv) Refusal to perform legal and reasonable services that Gerlich is required to perform under this Agreement after explicit instructions from the CEO and/or Board of the Company ordering Gerlich to perform such services.

 

Within 48 hours upon termination of his employment, excluding weekends or holidays, Gerlich shall return to Company all confidential information and all originals and copies of any other property or information owned by Company or relating to its business, in Gerlich’s possession or under his control, including any and all information electronically stored and retrievable, and including all credit cards, papers, books, equipment, files, computers, disks and automobiles. Company shall have the immediate right to all such information if Gerlich is terminated under Paragraphs 4(e). Within 30 days of termination for Reasonable Cause or Disability, Gerlich and his counsel shall have the right to meet with the CEO regarding Gerlich dismissal.

 

5. Compensation . Company shall pay Gerlich a gross salary, before all taxes and deductions of Two Hundred Seventy Five Thousand Dollars ($275,000) for the first full year of his employment. Such salary may be adjusted upward, in the discretion of the CEO, Board and its Compensation Committee, at each year’s anniversary date of his employment as CEO. As such, his salary may be adjusted upward effective May 9th of each successive year. Subject to the provisions of the next Paragraph, Gerlich’s salary may also be adjusted downward at each anniversary date by the CEO, the Board or its Compensation Committee, provided that Gerlich is given the basis for the intended downward adjustment and the opportunity to discuss it, with no assurances that any change will be made as a result of that discussion.

 

Notwithstanding the foregoing, Gerlich’s salary may be adjusted downward no more than ten percent (10%) per year, and no more than twenty percent (20%) in total from his original salary of $275,000, unless the base salary of the CEO is similarly decreased by twenty percent (20%) or more from the CEO’s base salary during Gerlich’s first year of employment, in which case the percentage reduction in Gerlich’s salary shall be no greater than the percentage reduction in the CEO’s salary and provided further that the CEO’s

 

2


bonus and other compensation shall not have been increased in any amounts to offset all or any portion of such decrease in base salary. Further, should Gerlich’s salary be decreased by an amount greater than 20% of his original salary, Gerlich may, at his option, consider his employment terminated under Section 4(d), entitling Gerlich to Severance in accordance with Section 8 of this Agreement.

 

Gerlich shall be granted an option to acquire 250,000 common shares of Gastar stock at market price, as reflected at Closing of the Toronto Stock Exchange on the earlier of the first trading day following the Effective Date of this Agreement or the first date that such grant may be made per the terms of the Gastar Stock Option Plan and the Company’s established policies and procedures. Provided that Gerlich has not received notice of termination before said anniversary date, Gerlich shall be granted an additional option, on the one-year anniversary of the Effective Date of this Agreement to acquire an additional 125,000 common shares of Gastar stock at market price, as reflected at Closing of the Toronto Stock Exchange on the earlier of the first trading day after the one-year anniversary date, or first date that such grant may be made per the terms of the Gastar Stock Option Plan and the Company’s established policies and procedures following the one year anniversary date. All option grants will be made subject to the terms and conditions of the Gastar Stock Option Plan, including all vesting and pricing provisions, of which terms and conditions Gerlich, by execution of this Agreement, represents that he fully understands. Gerlich shall be considered for further option grants made to other senior officers of the Company in future years.

 

In addition, the Compensation Committee may (but is not obligated), on a yearly basis, or at such more frequent times as it may elect, award Gerlich a discretionary bonus or bonuses. Such bonus may take the form of cash compensation, the award of stock or stock options, royalty rights or otherwise. The bonus, if provided, shall reflect not only the results of the Company’s operations and business, but of Gerlich’s contribution to the Company’s operations and business. Gerlich is not eligible for any such discretionary bonus until after he has begun his second year of employment without provision of or receipt of written notice of termination.

 

Notwithstanding the foregoing, a first year bonus equal to 20% of Gerlich’s gross salary for his first year of employment shall be made within thirty (30) days of the anniversary date of Gerlich’s employment following the end of the first year of employment.

 

6. Fringe Benefits .

 

  (a) Gerlich shall participate in, subject to eligibility requirements, Company’s employee pension plans and profit sharing plans, if any, and any other medical, dental, hospitalization, disability, life or other insurance or benefit programs on the same terms as apply to other executive staff employees of Company.

 

  (b) Company shall reimburse Gerlich for all necessary and reasonable business expenses incurred by him. For purposes of this Agreement, the determination of “necessary and reasonable business expense” is vested with the CEO.

 

7. Liability Insurance and Indemnification . The Company represents and warrants that Gastar has in place Directors and Officers liability Insurance Policies, naming Gerlich as an insured against any and all claims, actions, causes of action, lawsuits or investigations which could be brought against Gerlich in his capacity as Vice President and Chief Financial Officer of Gastar, subject only to the specific exclusions set forth in said Policies, including without limitation, any exclusion for fraud, willful misconduct, or misrepresentation. For the period of time for which Gerlich is an employee of the Company, Company shall maintain these policies and timely pay all premiums due under those policies. The Company shall acquire such “tail” or other policies of insurance to continue the coverage of Gerlich, should he no longer be employed by the Company to cover any subsequent claims, actions, lawsuits, causes of action or investigations brought against Gerlich while in the capacity of CFO of the Company.

 

The Company shall indemnify and hold Gerlich harmless from any action, claim, lawsuit, cause of action or investigation brought against Gerlich, as the Vice President and Chief Financial Officer of the Company, regardless of whether the Directors and Officers Liability Insurance Policies are in place, and regardless of

 

3


whether Gerlich has left the employ of the Company as Vice President, CFO, or otherwise. This agreement by the Company to indemnify and hold Gerlich harmless shall include the Company’s obligation to pay all damages, injuries and penalties incurred by Gerlich or against Gerlich, and Gerlich’s costs and reasonable attorneys’ fees. This agreement to indemnify and hold harmless shall not apply if and only if Gerlich is convicted of a felony which is affirmed on appeals or is not appealed, or is found guilty, by final verdict, of fraud or willful misconduct.

 

8. Severance .

 

  (a) When Severance is Paid . Company shall pay a severance benefit to Gerlich if Gerlich’s employment is terminated for any reason other than those set forth in Section 4(e).

 

  (b) Amount of Severance Payment . Gerlich shall receive severance pay of two (2) years annual gross salary, (exclusive of bonuses received, stock options granted or exercised, or other non cash compensation), if required notice of his severance is received after May 17, 2006. Gerlich shall receive severance pay of one (1) year annual gross salary (exclusive of bonuses received, stock options granted or exercised, or other non cash compensation), if required notice of his severance is received on or before May 17, 2006. The severance payment will be calculated on the basis of Gerlich’s then current annual salary, to be earned in Gerlich’s then current employment year coincident with or immediately preceding the notice of termination of employment, payable in equal amounts over 100 weeks (the “Severance Pay Period”). The first such payment shall be made by the Company with such notice, and the remaining ninety nine (99) remaining payments shall be made weekly thereafter for the entirety of the severance Pay Period. There will be continuation of health insurance for Gerlich and his family, at Company’s expense, during the Severance Pay Period. Such health insurance shall be provided only if Gerlich timely elects COBRA continuation coverage. The duration of the provision of health inspection shall be subject to the limitations imposed by law and the Company’s insurance plan, notwithstanding the prior sentence. If Gerlich dies during the Severance Pay Period, Severance Pay and health benefits will continue for the benefit of Gerlich’s eligible beneficiary during the remainder of the Severance Pay Period. For purposes of determining Severance Pay under Paragraph 8(b), termination is deemed to have occurred on the date that written notice of termination and such first Severance Payment is received by Gerlich. The gross salary shall be that annualized salary for Gerlich’s employment year preceding the employment year during which said notice of termination is received, or, in the case of paragraph 4(a) and 4(b), when they become operative.

 

9. Time Off . Gerlich shall be entitled each year to sick and holiday time off with full pay and benefits under arrangements equivalent to those that apply generally to all employees of Company. Gerlich be entitled to thirteen (13) working days (Monday through Friday) of vacation time off during 2005. Commencing January 1, 2006, Gerlich shall also be entitled to twenty (20) days (Monday through Friday) of vacation per full calendar year. Up to ten (10) days of vacation which are not used in each calendar year may be accumulated, up to a maximum of fifteen (15) days and shall be paid to Gerlich in a lump sum within thirty (30) days of termination of employment for any reason, except termination for Cause under Paragraph 4(c). Such payment shall be based on Gerlich’s W-2 compensation for the calendar year ending coincident with or immediately preceding Gerlich’s termination of employment multiplied by the number of days of accumulated vacation divided by 365.

 

10. Moving and Relocation Expenses . Subject to his rights under Section 4(e), Gerlich’s reasonable moving and relocation expenses shall be completely paid for by the Company if the Board determines that it is the best interests of the Company for him to reside at a location more than fifty (50) miles from the Company’s current office location in Houston, Texas.

 

11. Restrictive Covenant .

 

  (a)

Gerlich will not, at any time, either during or after employment with Company, use or disclose to others any trade secrets (such as information, strategy, procedures, policies or practices relating to financial, marketing and/or operational data) or other confidential information about Company’s

 

4


 

business or any of its proprietary rights, except as required in the ordinary course of performing employment duties for Company.

 

  (b) On termination of employment, and consistent with paragraph 4, Gerlich will deliver to Company all documents or papers (including diskettes or any other medium for electronic storage of information) relating to Company’s business or such trade secrets (such as information, strategy, procedures, policies or practices relating to financial, marketing and/or operational data) or confidential information that is in Gerlich’s possession or under Gerlich’s control without making copies or summaries of any such material.

 

  (c) Gerlich agrees that Company is entitled to be protected from the possibility that Gerlich may seek to become associated with a business that competes with Company. Gerlich agrees therefore as follows:

 

  (i) Unless specifically pre-approved by the CEO of the Company, in writing, which approval may not be unreasonably withheld, for a period of two (2) year(s) from Gerlich’s termination of employment with Company, if Gerlich’s termination occurs after the first full year of his employment, or for a period of one (1) year from Gerlich’s termination of employment with Company, if Gerlich’s termination occurs during his first full year of employment, Gerlich shall not directly or indirectly, whether as an equity owner, employee, consultant, officer, or director, or in any other capacity, engage in or have an interest in any business involved in “direct competition” with the Company in the exploration for and production of oil, gas or other hydrocarbons. As used in this Section 11(c)(ii), “direct competition” shall mean involvement on any property within two (2) miles of a then active current operation of the Company, or within two (2) miles of a then current active prospect of the Company. Gerlich specifically recognizes the reasonableness of the provisions of this Section 11(c)(i).

 

  (ii) Gerlich acknowledges that if this Agreement is violated, it will cause severe and irreparable injury to Company and its good will, an injury that is not adequately compensable by money damages. Accordingly, in the event of a breach (or attempted breach) of this Agreement, Company shall, in addition to any other rights or remedies, be entitled to immediate appropriate injunctive relief, such as an injunction, preliminary injunction or temporary restraining order, prohibiting any breach or threatened breach of this Agreement, or a decree of specific performance of this Agreement, without the necessity of showing any irreparable injury or special damages.

 

  (iii) Notwithstanding the foregoing, Gerlich’s current and future activities involving Working Interests or Overriding Royalty Interests that he and his wife, Diane Gerlich, own in certain producing properties in Texas, Colorado and Louisiana shall not be considered as either direct or indirect competition with the Company.

 

12. Company Facilities and Staff Support . Company shall provide and maintain (or cause to be provided and maintained) such facilities, equipment, supplies, and staff support as are deemed appropriate by CEO and/or the Board of Directors in its sole discretion, after consultation with Gerlich to be necessary for Gerlich’s performance of his professional duties under this Agreement.

 

13. Accounting . All determinations under this Agreement including, but not limited to, compensation and bonuses shall be made using accounting principles consistently applied in preparation of Company’s income tax returns by the independent certified public accounting then serving the Company, whose determination shall be binding on all parties. The determination of the accountant is not subject to arbitration or any other review by any tribunal or court and both Gerlich and Company specifically waive any right to challenge the determination of the accountant.

 

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14. Miscellaneous Provisions .

 

  (a) Notices . Unless otherwise agreed in writing, all notices required by this Agreement shall be in writing and shall be deemed given when physically delivered to a party or its duly authorized attorney or legal representative, or when deposited paid, registered or certified mail, addressed to the party at its principle business or residence, as set forth in Company’s records, or as known to or reasonably ascertainable by the party required to give notice.

 

  (b) General Rule of Construction . The parties have participated jointly in the negotiating and drafting of this Agreement. If a question concerning intent or interpretation arises, no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of authorship.

 

  (c) Waivers . No assent, express or implied, by any party to any breach or default under this Agreement shall constitute a waiver of or assent to any breach or default of any other provision of this Agreement or any breach or default of the same provision on any other occasion.

 

  (d) Entire Agreement and Modification . This Agreement constitutes the entire agreement of the parties concerning its subject matter and supersedes all other oral or written understandings, discussions, and agreements, and may be modified only in a writing signed by all parties.

 

  (e) Binding Effect; No Third Party Beneficiaries . This Agreement shall bind and benefit the parties and their respective heirs, devisees, beneficiaries, grantees, donees, legal representatives, successors and assigns. Nothing in this Agreement shall be construed to confer any rights or benefits on third party beneficiaries.

 

  (f) Assignment . Neither party may assign its interest in this Agreement without the other’s prior written consent; provided, however, that Company may assign its interest to another entity that it controls, is controlled by, or is under common control of the Company, so long as the entity to which the Agreement is to be assigned has sufficient assets and liquidity to pay any Severance owing Gerlich under the Agreement.

 

  (g) Captions . Titles or captions contained in this Agreement are for convenience and are not intended to affect the substantive meaning of any provision.

 

  (h) Severability . Gerlich and Company hereby expressly agree and contract that it is not the intention of either party to violate any public policy, statutory or common law, and that if any sentence, paragraph, clause or combination of the same of this Agreement is in violation of the law of any state where applicable, such sentence, paragraph, clause or combination of the same shall be void in the jurisdiction where it is unlawful, and the remainder of the Agreement shall remain binding on the parties hereto. It is the intention of Gerlich and Company to make the covenants of this Agreement binding only to the extent that it may be lawfully done under the existing applicable laws. In the event that any part of any covenant of this Agreement is determined by a court of law to be overly broad thereby making the covenant unenforceable, the Company and Gerlich hereto agree, and it is their desire, that such court shall substitute a reasonable and enforceable limitation in place of the offensive part of the covenant, and that as so modified the covenant shall be as fully enforced as set forth herein by the parties themselves in the modified form, such modification to apply only in the jurisdiction of the court that has made the adjudication.

 

  (i) Counterparts . This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

 

  (j) Effect of Termination . This Agreement shall continue in effect upon and after the termination of Gerlich’s employment for any reason to the extent necessary for the enforcement of any of its provisions that apply subsequent to any such termination.

 

6


  (k) Dispute Resolution . The federal and state courts of the State of Michigan and the State of Texas shall have concurrent jurisdiction over any and all disputes between the parties, including any claims arising out this Agreement or its termination, or any claim of employment discrimination. All parties hereto agree that jurisdiction and venue are proper in either Michigan or Texas.

 

  (l) Governing Law . This Agreement shall be governed by and construed under the laws of the State in which a legal action is commenced; and secondarily by the laws of the United States.

 

  (m) Mitigation Duty . Gerlich shall not have any duty to mitigate damages regarding severance payments and such shall not impact the Company’s obligation to pay such severance.

 

7


IN WITNESS WHEREOF, the parties have executed this Agreement to be effective as specified above.

 

FIRST SOURCENERGY WYOMING, INC.       MICHAEL A. GERLICH
By:                

Its:

  President      

Date:

  April 26, 2005

Date: 

  April 26, 2005            

 

GASTAR EXPLORATION, LTD.        
By:                

Its:

  President and CEO            

Date: 

  April 26, 2005            

 

8

EXHIBIT 21.1

 

Gastar Exploration Ltd.

 

Subsidiary List - June 30, 2005

 

Subsidiaries 100% owned by Gastar Exploration Ltd.

 

New Energy West Corporation, Canada (Alberta)

1075191 Ontario Ltd., Canada (Ontario)

 

Subsidiaries 100% owned by New Energy West Corporation

 

616694 Alberta Ltd., Canada (Alberta)

Monterey Resources, Inc., Canada (Alberta)

New Energy West (U.S.A.) Corporation, US (California)

 

Subsidiaries 100% owned by 1075191 Ontario Ltd.:

 

First Sourcenergy Wyoming, Inc., US (Michigan)

 

Subsidiaries 100% owned by First Sourcenergy Wyoming, Inc.

 

First Sourcenergy Group, Inc., US (Michigan)

Squaw Creek Inc., US (Delaware)

First Source Development, Inc., US (Michigan)

First Sourcenergy Victoria Inc., US (Michigan)

Oil and Gas Services, Inc., US (Delaware)

First Sourcenergy Kansas, Inc., US (Delaware)

First Appalachian Development Inc., US (Michigan)

First Texas Development, Inc., US (Michigan)

 

Subsidiaries 100% owned by First Texas Development, Inc.

 

First Source Gas, LP, US (Delaware)

Bossier Basin, LLC, US (Delaware)

EXHIBIT 23.1

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We consent to the use in this Registration Statement on Form S-1 of our report dated March 18, 2005 (August 11, 2005 as to Note 21) relating to the consolidated financial statements of Gastar Exploration Ltd. appearing in the Prospectus, which is part of this Registration Statement.

 

We also consent to the reference to us under the heading “Experts” in such Prospectus.

 

/s/ BDO Dunwoody LLP

 

Calgary, Alberta

August 12, 2005

EXHIBIT 23.2

 

NETHERLAND, SEWELL & ASSOCIATES, INC.

 

August 4, 2005

 

Gastar Exploration Ltd.

1331 Lamar Street, Suite 1080

Houston, Texas 77010

 

Re: Gastar Exploration Ltd., Registration Statement on Form S-1

dated on or about August 5, 2005

 

Gentlemen:

 

The firm of Netherland, Sewell & Associates, Inc. consents to the use of its name and to the use of its reports regarding Gastar Exploration Ltd.’s Proved Reserves and Future Net Revenue as of December 31, 2004 and as of January 1, 2003 and 2002 in Gastar’s Registration Statement on Form S-1 to be filed on or about August 5, 2005 and all subsequent amendments thereto.

 

Netherland, Sewell & Associates, Inc. has no interests in Gastar Exploration Ltd. or in any affiliated companies or subsidiaries and is not to receive any such interest as payment for such reports and has no director, officer, or employee otherwise connected with Gastar Exploration Ltd. Gastar Exploration Ltd. does not employ us on a contingent basis.

 

Yours very truly,

NETHERLAND, SEWELL & ASSOCIATES, INC.

/s/ C.H. REES III


C.H. (Scott) Rees III, P.E.
President and Chief Operating Officer