NEVADA
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0-24012
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13-3087510
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(State or other jurisdiction of
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(Commission File Number)
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(IRS Employer
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incorporation)
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Identification No.)
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Suite 700, 10150 – 100 Street, Edmonton, Alberta, Canada
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T5J 0P6
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(Address of principal executive offices)
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(Zip Code)
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o
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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o
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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o
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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o
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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1.) Effective date of the Amending Agreement will be June 20, 2013;
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2.) Term of Agreement will be until December 31, 2014;
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3.) The Consultant shall continue to provide services as President and CEO of the Company until the termination of the Agreement;
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4.) The fees payable to the Consultant in the Prior Agreement will be terminated and the Company will grant the Consultant 5-year options on 1,000,000 of its common shares exercisable at US$0.05 per share. One half of these shares are vested immediately and the remaining one half will be vested on June 20, 2014;
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5.)
As consideration for the execution of the Amending Agreement and the Termination of parts of the Prior Agreement, the Consultant will receive:
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a. $70,000 CDN, and
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b. 850,000 units of the Company’s shares and warrants at a price of US$0.05 per unit. Each unit shall be comprised of one restricted Company common share and one 3 year full warrant entitling Portwest to be able to purchase another share for US$0.075. The warrants expire on June 20, 2016.
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Exhibit No.
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Description
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4.1
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Form of Subscription Agreement for private placement dated July 10, 2013, filed herewith.
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4.2
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Form of Warrant dated July 10, 2013, filed herewith.
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10.1
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Form of Stock Option Agreement dated effective June 20, 2013, filed herewith.
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10.2
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Consulting agreement by and between Northern Alberta Oil Ltd. and Portwest Investments Ltd., dated July 1, 2005, (incorporated by reference to exhibit 10.16 to the Company’s Form 10-KSB filed on February 23, 2007).
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10.3
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Amending Agreement by and between Northern Alberta Oil Ltd. and Portwest Investments Ltd., dated July 10, 2012, filed herewith.
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DEEP WELL OIL & GAS, INC.
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Date: July 16, 2013
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By:
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/s/ Curtis Sparrow
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Mr. Curtis Sparrow
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Chief Financial Officer
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(Section 2.3 Accredited Investor Exemption Pursuant to “National Instrument 45-106 – Prospectus and Registration Exemptions” –
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Alberta and British Columbia Jurisdictions Only)
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TO:
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Deep Well Oil & Gas, Inc. (the "Corporation")
Suite 700, 10150 – 100 Street
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Edmonton, Alberta T5J 0P6
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_______________________________________________________
Name of Subscriber – please print
By: _________________________________________________
Authorized Signature
_______________________________________________________
Official Capacity or Title – please print
Date:__________________________________________________
_______________________________________________________
(Please print name of individual whose signature appears above if
different than the name of the Subscriber printed above.)
_______________________________________________________
Subscriber's Address
_______________________________________________________
_______________________________________________________
Facsimile Number
_______________________________________________________
Telephone Number E-Mail Address
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Number of Units:
l
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Aggregate Subscription Price (No. of Units X US$
l
per Unit):
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No. of Common Shares Currently Held (
excluding
Common Shares comprising the
Units subscribed for herein, not including warrants or vested stock options): |
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Register the Units as set forth below
:
__________________________________________________________________
Name
__________________________________________________________________
Address
__________________________________________________________________
Address
__________________________________________________________________
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DEEP WELL OIL & GAS, INC.
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By:
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(a)
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“Closing
” or “
Closing Date
” means the closing of the Offering initially expected to occur on or about
l
, 2013 or such other date or dates as may be determined by the Corporation in its sole discretion and such other subsequent closings as may be required to complete the Offering;
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(b)
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“
Common Share
”
means a common share in the capital stock of the Corporation;
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(c)
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“
Corporation
” means Deep Well Oil & Gas, Inc.;
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(d)
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“
MI 51-105
” means Multilateral Instrument 51-105 – Issuers Quoted in the U.S. Over-The-Counter Markets;
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(e)
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“
NI 45-102”
means National Instrument 45-102 -
Resale of Securities;
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(f)
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“
NI 45-106”
means National Instrument 45-106 -
Prospectus and Registration Exemptions;
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(g)
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“
Offering
” means the offering of Units by the Corporation at US$
l
per Unit;
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(h)
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“
Prior Share Issuance Reservations
” means all previously reserved share issuances including the ten percent (10%) of the issued and outstanding share capital which may be granted as options pursuant to the Corporation’s stock option plan.
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(i)
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“
Securities
” means the Units, the Common Shares and the Whole Warrants comprising the Units, and the Warrant Shares;
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(j)
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“
Subscriber
” means the person or company identified as the Subscriber on the face page of this Subscription Agreement;
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(k)
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“
Subscription Agreement
” means this agreement, together with the exhibits attached hereto, as amended or supplemented from time to time;
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(l)
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“
Subscription Price
” means the aggregate subscription price paid by the Subscriber, being the number of Units subscribed for multiplied by US$
l
per Unit;
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(m)
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“
Unit
” means a unit consisting of one (1) Common Share and one (1) Whole Warrant;
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(n)
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“
United States
” means the United States of America, its territories and possessions, any state of the United States, and the District of Columbia;
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(o)
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“
U.S. Person
” means “U.S. person” as that term is defined in Regulation S under the U.S. Securities Act;
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(p)
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“
U.S. Securities Act
” means the United States Securities Act of 1933, as amended;
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(q)
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“
Warrant Share
” means a Common Share issuable upon exercise of a Whole Warrant;
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(r)
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“Warrant Term”
means the period commencing at Closing and continuing until 4:30 p.m. (Edmonton time) on the date which is three (3) years following the Closing Date (or, if such date is not a business day, on the first business day which is at least three (3) years following the Closing Date), subject to amendments to the expiry provisions in accordance with
paragraphs
5
and
13
; and
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(s)
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“
Whole
Warrant
” means one (1) Common Share purchase warrant of the Corporation entitling the holder to purchase one (1) Common Share of the Corporation at a price of US$
l
for a period of three (3) years from the Closing Date.
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(a)
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the Subscriber has been independently advised as to restrictions with respect to trading in the Units imposed by applicable securities legislation, confirms that no representation has been made to it by or on behalf of the Corporation with respect thereto, acknowledges that it is aware of the characteristics of the Units, the risks relating to an investment therein and of the fact that it may not be able to resell the Securities except in accordance with limited exemptions under applicable securities legislation and regulatory policy, including MI 51-105, NI 45-102 and the U.S. Securities Act until expiry of the applicable restricted period and compliance with the other requirements of applicable law; and the Subscriber agrees that any certificates representing the Securities, and all certificates issued in exchange therefor or in substitution thereof, will bear a legend indicating that the resale of such Securities is restricted; and
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(b)
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the Subscriber has not received or been provided with, nor has it requested, nor does it have any need to receive, any offering memorandum, or any other document (other than an annual report, annual information form, interim report, information circular or any other continuous disclosure document, the content of which is prescribed by statute or regulation) describing 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 Units; and
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(c)
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the Subscriber 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 Units and (ii) to obtain such additional information which the Corporation possesses or can acquire without unreasonable effort or expense that the Subscriber considered necessary in connection with its decision to invest in the Units; and
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(d)
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this Agreement is made unconditionally as a result of the Subscriber’s desire to participate in the future development of the Corporation; and
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(e)
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the Subscriber is purchasing as principal and it knows that it is purchasing the Units pursuant to an exemption under NI 45-106 and, as a consequence, is restricted from using most of the civil remedies available under applicable securities legislation, may not receive information that would otherwise be required to be provided to it under applicable securities legislation, and the Corporation is relieved from certain obligations that would otherwise apply under applicable securities legislation; and
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(i)
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if a resident of Alberta
, the Subscriber is a resident in or otherwise subject to the applicable securities laws of Alberta and it is an "accredited investor" as such term is defined in NI 45-106 promulgated 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; or
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(ii)
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if a resident of British Columbia
, the Subscriber is a resident in or otherwise subject to the applicable securities laws of British Columbia and it is an "accredited investor" as such term is defined in NI 45-106 promulgated under the
Securities Act
(British Columbia) and has concurrently executed and delivered a Representation Letter in the form attached as
Exhibit 1
to this Subscription Agreement; and
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(f)
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if the Subscriber is resident in any jurisdiction not referred to in Subsection 8(e) above:
(a) the purchase of the Units does not contravene any of the applicable laws in the Subscriber’s jurisdiction of residence and does not trigger (i) any obligation to prepare and file a prospectus, an offering memorandum or similar document, or any other ongoing reporting requirements with respect to such purchase or otherwise, or (ii) any registration or other obligation on the part of the Corporation; (b) the sale of the Units as contemplated in the Subscription Agreement complies with or is exempt from applicable securities legislation of the Subscriber’s jurisdiction of residence and the Subscriber will provide such evidence of compliance with all such matters as the Corporation may request; (c) the Subscriber will comply with the provisions of Section 6 and Subsection 8(a) as if they were a resident of Alberta or British Columbia; and (d) and notwithstanding that the Subscriber is not a resident of Alberta or British Columbia, it is an "accredited investor" as such term is defined in NI 45-106 promulgated under the
Securities Act
(Alberta) and/or the
Securities Act
(British Columbia)
and has concurrently executed and delivered a Representation Letter in the form attached as
Exhibit 1
to this Subscription Agreement; and
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(g)
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the Subscriber has concurrently properly completed, executed and delivered a Risk Acknowledgement Form in the form attached as
Exhibit 2
to this Subscription Agreement,
which the Corporation is relying upon for determining the sale of securities of the Corporation to the Subscriber in a manner exempt from the registration requirements of the applicable securities laws, which form is true and correct both as of the date of execution of this Subscription Agreement and as at Closing.; and
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(h)
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no person has made to the Subscriber any written or oral representations:
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(i)
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that any person will resell or repurchase any of the Securities;
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(ii)
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that any person will refund the purchase price of any of the Securities;
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(iii)
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as to the future price or value of any of the Securities; or
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(iv)
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that any of the Securities will be listed and posted for trading on a stock exchange or that application has been made to list and post any of the Securities for trading on a stock exchange; and
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(i)
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the Subscriber has not received or been provided with, nor has it requested, nor does it have any need to receive, any offering memorandum, disclosure document or any other document describing the business and affairs of the Corporation in order to assist the Subscriber in making an investment decision in respect of the Securities; and
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(j)
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the issuance of the Units was not accompanied by any form of general solicitation, including but not limited to any advertisement in printed public media, radio, television or telecommunications, including electronic display, such as from the Internet. The decision to execute this Subscription Agreement and to subscribe for the Units has not been based upon any verbal or written representation or understanding as to fact or otherwise made by or on behalf of the Corporation not otherwise contained in this Subscription Agreement and the Subscriber has no understandings to the contrary.
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(k)
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the Subscriber has no knowledge of a “material fact” or “material change” (as those terms are defined by applicable securities legislation) in respect of the affairs of the Corporation that has not been generally disclosed to the public, other than knowledge relating directly to its subscription for the Units; and the Corporation may complete additional financings in the future, and such future financings may have a dilutive effect on then-current security holders of the Corporation, including the Subscriber; and
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(l)
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the Corporation may complete additional financings in the future, and such future financings may have a dilutive effect on then-current security holders of the Corporation, including the Subscriber; and
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(m)
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it is aware that the Securities have not been and will not be registered under the U.S. Securities Act or any state securities laws, and that the Securities may not be offered or sold in the United States or to, or for the account or benefit of, a U.S. Person without registration under the U.S. Securities Act and all applicable state securities laws or compliance with the requirements of an exemption or exclusion from such registration requirements and acknowledges that the Corporation has no present intention of filing a registration statement under the U.S. Securities Act in respect of the Securities; and
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(n)
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the Units have not been offered to the Subscriber in the United States and this Subscription Agreement has not been executed by or on behalf of the Subscriber in the United States; and
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(o)
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it is not a U.S. Person and is not purchasing the Units on behalf of, or for the account or benefit of, a U.S. Person or a person in the United States; and
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(p)
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the Subscriber undertakes and agrees that it will not offer or sell the Securities unless such securities are registered under the U.S. Securities Act and the securities laws of all applicable states of the United States, or an exemption or exclusion from such registration requirements is available, and further that it will not resell the Securities except in accordance with the provisions of applicable securities legislation, regulations, rules, policies and orders and stock exchange rules; and
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(q)
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it will not engage in hedging transactions with regard to the Securities except in compliance with the U.S. Securities Act; and
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(r)
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it understands and acknowledges that the Corporation must refuse to register any transfer of the Securities not made in accordance with an available exemption or exclusion from the registration requirements of the U.S. Securities Act or pursuant to registration under the U.S. Securities Act; and
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(s)
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if the Subscriber is a “distributor” (as defined in Regulation S under the U.S. Securities Act) or is an “affiliate” (as defined in Rule 405 under the U.S. Securities Act) of a distributor or is acting on behalf of a distributor, (i) it agrees that it will not offer or sell the Securities during the one year period after the completion of the distribution of the Units (the “Distribution Compliance Period”) to a U.S. Person or for the account or benefit of a U.S. Person (other than a distributor), and (ii) if it sells Securities to another distributor, a dealer (as defined in Section 2(a)(12) of the U.S. Securities Act) or a person receiving a selling concession fee or other remuneration, during the Distribution Compliance Period, the Subscriber agrees that it will send a written confirmation or other notice to the purchaser stating that the purchaser is subject to the same restrictions on offers and sales that apply to a distributor and setting forth the restrictions on offers and sales of Securities within the United States or to, or for the account or benefit of, U.S. Persons; and
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(t)
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the Subscriber understands and acknowledges that the Whole Warrants may not be exercised unless the Warrant Shares issuable upon such exercise have been registered under the U.S. Securities Act and all applicable state securities laws or an exemption or exclusion from such registration requirements is available; and
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(u)
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the Subscriber understands and acknowledges that each person exercising a Whole Warrant will be required to provide either (i) written certification that it is not in the United States or a U.S. Person and the Whole Warrant is not being exercised on behalf of a U.S. Person or a person in the United States, or (ii) a written opinion of counsel, of recognized standing reasonably satisfactory to the Corporation, to the effect that the Whole Warrant being exercised and the Warrant Shares issuable upon such exercise have been registered under the U.S. Securities Act and all applicable state securities laws or are exempt from such registration requirements; and
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(v)
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if any Securities are being sold pursuant to Rule 144 under the U.S. Securities Act, the United States restrictive legend may be removed from the certificates representing the Securities by delivering to the Corporation a written opinion of counsel, of recognized standing reasonably satisfactory to the Corporation, to the effect that the legend is no longer required under applicable requirements of the U.S. Securities Act or state securities laws; and
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(w)
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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
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(x)
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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
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(y)
|
it acknowledges that the net subscription proceeds (gross proceeds less expenses, including legal fees which have not been paid by the Corporation), will be immediately releasable to the Corporation on the Closing Date or later closing dates, as the case may be; and
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(z)
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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
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(aa)
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the entering into of this Subscription Agreement and the transactions contemplated hereby will not result in a violation of any of the terms and provisions of any law applicable to it, or any of its constating documents, or of any agreement to which the Subscriber is a party or by which it is bound; and
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(bb)
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in the case of a subscription by the Subscriber for Units 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 and binding agreement of, such principal; and
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(cc)
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the Subscriber has such knowledge in financial and business affairs as to be capable of evaluating the merits and risks of the Subscriber’s investment and the Subscriber, or, where the Subscriber is acting as agent for a disclosed principal, each beneficial purchaser, is able to bear the economic risk of loss of the Subscriber’s entire investment in the Units; and
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(dd)
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except for the representations and warranties made by the Corporation herein, 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 and acknowledges that the Corporation's counsel are acting as counsel to the Corporation and not as counsel to the Subscriber; and
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(ee)
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the Subscriber understands that Units are being offered for sale only on a "private placement" basis and that the sale and delivery of the Units is conditional upon such sale being exempt from the requirements 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 requirement of filing a prospectus or delivering an offering memorandum and, as a consequence (i) it is restricted from using most of the civil remedies available under applicable securities legislation; (ii) it may not receive information that would otherwise be required to be provided to it under applicable securities legislation; and (iii) the Corporation is relieved from certain obligations that would otherwise apply under applicable securities legislation; and
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(ff)
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if required by applicable securities legislation, regulations, rules, policies or orders, NI 45-106, 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 Units (including, without limitation, a completed and duly executed Representation Letter, attached as
Exhibit 1
); and
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(gg)
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the Subscriber will not resell the Securities except in accordance with the provisions of applicable securities legislation and stock exchange rules, if applicable, in the future; and
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(hh)
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the Subscriber deals at arm's length with the Corporation within the meaning of the
Income Tax Act
(Canada) and will continue to deal at arm's length with the Corporation at all times which are relevant for this Subscription Agreement; and
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(ii)
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none of the funds the Subscriber is using to purchase the Units are, to the knowledge of the Subscriber, proceeds obtained or derived, directly or indirectly, as a result of illegal activities; and
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(jj)
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the funds representing the total 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) and Terrorist Financing 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; and
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(kk)
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to the best of its knowledge, the subscription funds to be provided by the Subscriber (i) have not been or will not 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, and (ii) are not being tendered on behalf of a person or entity who has not been identified to the Subscriber and the Subscriber shall promptly notify the Corporation if the Subscriber discovers that any of such representations cease to be true, and to provide the Corporation with appropriate information in connection therewith; and
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(ll)
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the Subscriber acknowledges that it has been encouraged to and should obtain independent legal, income tax and investment advice with respect to its subscription for these Units and accordingly, has been independently advised as to 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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(a)
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in the case of the Subscriber, to the address appearing on the first page of this Subscription Agreement; and
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(b)
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in the case of the Corporation, to the address appearing in Section 18 of this Subscription Agreement,
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(a)
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this duly completed and executed Subscription Agreement;
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(b)
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a certified cheque, wire transfer or bank draft payable to Deep Well Oil & Gas, Inc. for the Subscription Price of the Units subscribed for under this Subscription Agreement;
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(c)
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the applicable Representation Letter as follows:
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(i)
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if the Subscriber is an “accredited investor” in Alberta a fully completed and duly executed Representation Letter, attached as
Exhibit 1
hereto; or
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(ii)
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if the Subscriber is an “accredited investor” in British Columbia a fully completed and duly executed Representation Letter, attached as
Exhibit 1
hereto; or
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(iii)
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if the Subscriber is purchasing Units pursuant to Subsection 8(e) a fully completed and duly executed Representation Letter, attached as
Exhibit 1
hereto; and
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(d)
|
a completed and duly signed Risk Acknowledgement Form in the form attached as
Exhibit 2
hereto.
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TO:
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DEEP WELL OIL & GAS, INC. (the "Corporation")
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1.
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The Subscriber is resident in Alberta or British Columbia or is subject to the laws of the Province of Alberta or British Columbia;
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2.
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The Subscriber, unless it is a person or company described in paragraph (q) in the attached Appendix "A" that is deemed pursuant to the provisions of section 2.3(5) of National Instrument 45-106 entitled "Prospectus and Registration Exemptions" to be purchasing as principal, is purchasing the Units as principal for its own account and not for the benefit of any other person;
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3.
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The Subscriber is an "accredited investor" within the meaning of National Instrument 45-106 entitled "Prospectus and Registration Exemptions" by virtue of satisfying the indicated criterion as set out in Appendix "A" to this Representation Letter; and
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4.
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Upon execution of this Exhibit 1 by the Subscriber, this Exhibit 1 shall be incorporated into and form a part of the Subscription Agreement.
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Print name of Subscriber | |||
By: | Signature | ||
Print name of Signatory (if different from Subscriber)
|
|||
Title |
________
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(a)
|
a Canadian financial institution or a Schedule III bank; or
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________
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(b)
|
the Business Development Bank of Canada incorporated under the
Business Development Bank of Canada Act
(Canada); or
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________
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(c)
|
a subsidiary of any person referred to in paragraphs (a) or (b), if the person 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
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________
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(d)
|
a person registered under the securities legislation of a jurisdiction of Canada as an adviser or dealer, other than a person registered solely as a limited market dealer under one or both of the
Securities Act
(Ontario) or the
Securities Act
(Newfoundland and Labrador); or
|
________
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(e)
|
an individual registered or formerly registered under the securities legislation of a jurisdiction of Canada as a representative of a person referred to in paragraph (d); or
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________
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(f)
|
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
|
________
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(g)
|
a municipality, public board or commission in Canada and a metropolitan community, school board, the Comité de gestion de la taxe scolaire de l'île de Montreal or an intermunicipal management board in Québec; or
|
________
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(h)
|
any national, federal, state, provincial, territorial or municipal government of or in any foreign jurisdiction, or any agency of that government; or
|
________
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(i)
|
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
|
________
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(j)
|
an individual who, either alone or with a spouse, beneficially owns financial assets having an aggregate realizable value that before taxes, but net of any related liabilities, exceeds $1,000,000 (Canadian); or
|
________
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(k)
|
an individual whose net income before taxes exceeded $200,000 (Canadian) in each of the 2 most recent calendar years or whose net income before taxes combined with that of a spouse exceeded $300,000 (Canadian) in each of the 2 most recent calendar years and who, in either case, reasonably expects to exceed that net income level in the current calendar year; or
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________
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(l)
|
an individual who, either alone or with a spouse, has net assets of at least $5,000,000 (Canadian); or
|
________
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(m)
|
a person, other than an individual or investment fund, that has net assets of at least $5,000,000 (Canadian) as shown on its most recently prepared financial statements and such person was not created or used solely to purchase or hold securities as an “accredited investor”; or
|
________
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(n)
|
an investment fund that distributes or has distributed its securities only to:
|
(i) a person that is or was an accredited investor at the time of the distribution;
|
||
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(ii) a person that acquires or acquired securities in the circumstances referred to in sections 2.10 and 2.19 of NI 45-106; or
|
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(iii) a person described in paragraph (n)(i) or (ii) that acquires or acquired securities under section 2.18 of NI 45-106; or
|
|
________
|
(o)
|
an investment fund that distributes or has distributed securities under a prospectus in a jurisdiction of Canada for which the regulator, or in Québec, the securities regulatory authority, has issued a receipt; 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, acting on behalf of a fully managed account managed by the trust company or trust corporation, as the case may be; or
|
________
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(q)
|
a person acting on behalf of a fully managed account managed by that person, if that person
|
|
(i) is registered or authorized to carry on business as an adviser or the equivalent under the securities legislation of a jurisdiction of Canada or a foreign jurisdiction; and
|
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(ii) in Ontario, is purchasing a security that is not a security of an investment fund; 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 an adviser registered under the securities legislation of the jurisdiction of the registered charity to give 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) to (d) or paragraph (i) in form and function; or
|
________
|
(t)
|
a person in respect of which all of the owners of interests, direct, indirect, or beneficial, except the voting securities required by law to be owned by directors, are persons that are “accredited investors” (as defined in NI 45-106); or
|
________
|
(u)
|
an investment fund that is advised by a person registered as an adviser or a person that is exempt from registration as an adviser; or
|
________
|
(v)
|
a person that is recognized or designated by the securities regulatory authority or, except in Ontario and Québec, the regulator as an “accredited investor” (as defined in NI 45-106).
|
(a)
|
"
affiliate
" - An issuer is an “
affiliate
” of another issuer if
|
|
(i)
|
one of them is the subsidiary of the other, or
|
|
(ii)
|
each of them is controlled by the same person;
|
(b)
|
"
bank
" means a bank named in Schedule I or II of the
Bank Act
(Canada);
|
(c)
|
"
Canadian financial institution
" means
|
|
(i)
|
an association governed by the
Cooperative Credit Associations Act
(Canada) or a central cooperative credit society for which an order has been made under section 473(1) of that Act; or
|
|
(ii)
|
a bank, loan corporation, trust company, trust corporation, insurance company, treasury branch, credit union, caisse populaire, financial services cooperative, or league that, in each case, is authorized by an enactment of Canada or a jurisdiction of Canada to carry on business in Canada or a jurisdiction of Canada;
|
(d)
|
"
control person
" means
|
|
(i)
|
for Alberta,
|
A.
|
a person or company who holds a sufficient number of the voting rights attached to all outstanding voting securities of an issuer to affect materially the control of the issuer, and if a person or company holds more
than 20% of the voting rights attached to all outstanding voting securities of an issuer, the person or company is deemed, in the absence of evidence to the contrary, to hold a sufficient number of the voting rights to affect materially the control of the issuer, or
|
B.
|
each person or company in a combination of persons or companies acting in concert by virtue of an agreement, arrangement, commitment or understanding, who holds in total a sufficient number of the voting rights attached to all outstanding voting
securities of an issuer to affect materially the control of the issuer, and if a combination of persons or companies holds more than 20% of the voting rights attached to all outstanding voting securities of an issuer, the combination of persons or companies is deemed, in the absence of evidence to the contrary, to hold a sufficient number of the voting rights to affect materially the control of the issuer;
|
|
(ii)
|
for British Columbia, means
|
|
A.
|
a person who holds a sufficient number of the voting rights attached to all outstanding voting securities of an issuer to affect materially the control of the issuer, or
|
|
B.
|
each person in a combination of persons, acting in concert by virtue of an agreement, arrangement, commitment or understanding, which holds in total a sufficient number of the voting rights attached to all outstanding voting securities of an issuer to affect materially the control of the issuer,
|
(e)
|
"
director
" means
|
|
(i)
|
a member of the board of directors of a company or an individual who performs similar functions for a company, and
|
|
(ii)
|
with respect to a person that is not an company, an individual who performs functions similar to that of a director of a company;
|
(f)
|
"
eligibility adviser
" means:
|
|
(i)
|
a person that is registered as an investment dealer and authorized to give advice with respect to the type of security being distributed; and
|
|
(ii)
|
in Saskatchewan or Manitoba, also means a lawyer who is a practicing member in good standing with a law society of a jurisdiction of Canada or a public accountant who is a member in good standing of an institute or association of chartered accountants, certified general accountants or certified management accountants in a jurisdiction of Canada provided that the lawyer or public accountant must not
|
|
A.
|
have a professional, business or personal relationship with the issuer, or any of its directors, executive officers, founders or control persons, and
|
|
B.
|
have acted for or been retained personally or otherwise as an employee, executive officer, director, associate or partner of a person that has acted for or been retained by the issuer or any of its directors, executive officers, founders or control persons within the previous 12 months;
|
(g)
|
"
EVCC
" means an employee venture capital corporation that does not have a restricted constitution and is registered under Part 2 of the
Employee Investment Act
(British Columbia), R.S.B.C. 1996 c. 112, and whose business objective is making multiple investments;
|
(h)
|
"
executive officer
" means, for an issuer, an individual who is
|
|
(i)
|
a chair, vice-chair or president,
|
|
(ii)
|
a vice-president in charge of a principal business unit, division or function including sales, finance or production, or
|
|
(iii)
|
performing a policy-making function in respect of the issuer;
|
(i)
|
"
financial assets
" means
|
|
(i)
|
cash;
|
|
(ii)
|
securities; or
|
|
(iii)
|
a contract of insurance, a deposit or evidence of a deposit that is not a security for the purposes of securities legislation;
|
(j)
|
"
foreign jurisdiction
" means a country other than Canada or a political subdivision of a country other than Canada;
|
(k)
|
"
founder
" means, in respect of an issuer, a person who,
|
|
(i)
|
acting alone, in conjunction, or in concert with one or more persons, directly or indirectly, takes the initiative in founding, organizing or substantially reorganizing the business of the issuer, and
|
|
(ii)
|
at the time of the distribution or trade is actively involved in the business of the issuer;
|
(l)
|
"
fully managed account
" means an account of a client for which a person makes the investment decisions if that person has full discretion to trade in securities for the account without requiring the client's express consent to a transaction;
|
(m)
|
"
jurisdiction
" means a province or territory of Canada except when used in the term "foreign jurisdiction";
|
(n)
|
"
individual
" means
|
|
(i)
|
for Alberta, a natural person, but does not include
|
|
A.
|
a partnership, unincorporated association, unincorporated syndicate, unincorporated organization or a trust, or
|
|
B.
|
a natural person in the person's capacity as trustee, executor, administrator or other legal representative;
|
|
(ii)
|
for British Columbia, a natural person, but does not include
|
|
A.
|
a partnership, unincorporated association, unincorporated syndicate, unincorporated organization or trust, or
|
|
B.
|
a natural person in the person's capacity as a trustee, executor, administrator or personal or other legal representative;
|
(o)
|
"
investment fund
" means a mutual fund or a non-redeemable investment fund, and, for greater certainty in British Columbia, includes an EVCC and a VCC;
|
(p)
|
"
non-redeemable investment fund
" means an issuer,
|
|
(i)
|
whose primary purpose is to invest money provided by its securityholders,
|
|
(ii)
|
that does not invest,
|
|
A.
|
for the purpose of exercising or seeking to exercise control of an issuer, other than an issuer that is a mutual fund or a non-redeemable investment fund, or
|
|
B.
|
for the purpose of being actively involved in the management of any issuer in which it invests, other than an issuer that is a mutual fund or a non-redeemable investment fund, and
|
|
(iii)
|
that is not a mutual fund;
|
(q)
|
"
person
" includes
|
|
(i)
|
an individual;
|
|
(ii)
|
a corporation;
|
|
(iii)
|
a partnership, trust, fund and an association, syndicate, organization or other organized group of persons, whether incorporated or not; and
|
|
(iv)
|
an individual or other person in that person's capacity as a trustee, executor, administrator or personal or other legal representative;
|
(r)
|
"
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;
|
(s)
|
"
Schedule III bank
" means an authorized foreign bank named in Schedule III of the
Bank Act
(Canada):
|
(t)
|
"
securities legislation
" means
|
|
(i)
|
for Alberta, the
Securities Act
(Alberta) and the regulations and rules under such Act and the blanket rulings and orders issued by the securities regulatory authority;
|
|
(ii)
|
for British Columbia, the
Securities Act
(British Columbia) and the regulations, rules and forms under such Act and the blanket rulings and orders issued by the securities regulatory authority;
|
|
(iii)
|
for other Canadian jurisdictions, such other statutes and instruments as are listed in Appendix B of National Instrument 14-101 –
Definitions
;
|
(u)
|
"
securities regulatory authority
" means
|
|
(i)
|
for Alberta, the Alberta Securities Commission;
|
|
(ii)
|
for British Columbia, the British Columbia Securities Commission;
|
|
(iii)
|
for other Canadian jurisdictions, means the securities regulatory authority as listed in Appendix C of National Instrument 14-101 –
Definitions
;
|
(v)
|
"
spouse
" means, an individual who,
|
|
(i)
|
is married to another individual and is not living separate and apart within the meaning of the
Divorce Act
(Canada), from the other individual; or
|
|
(ii)
|
is living with another individual in a marriage-like relationship, including a marriage-like relationship of individuals of the same gender; or
|
|
(iii)
|
in Alberta, is an individual referred to in paragraph (i) or (ii) or is an adult interdependent partner within the meaning of the
Adult Interdependent Relationships Act
(Alberta);
|
(w)
|
"
subsidiary
" means an issuer that is controlled directly or indirectly by another issuer and includes a subsidiary of that subsidiary; and
|
(x)
|
"
VCC
" means a venture capital corporation registered under Part 1 of the
Small Business Venture Capital Act
(British Columbia), R.S.B.C. 1996 c. 429 whose business objective is making multiple investments.
|
|
(i)
|
the first person beneficially owns or directly or indirectly, exercises control or direction over securities of the second person carrying votes which, if exercised, would entitle the first person to elect a majority of the directors of the second person, unless that first person holds the voting securities only to secure an obligation; or
|
|
(ii)
|
the second person is a partnership, other than a limited partnership, and the first person holds more than 50% of the interests of the partnership; or
|
|
(iii)
|
the second person is a limited partnership and the general partner of the limited partnership is the first person.
|
|
||||
Date | Signature of Purchaser | |||
Print name of Purchaser
|
|
||||
Date | Signature of Purchaser | |||
Print name of Purchaser
|
WARRANT CERTIFICATE
NO.
●
|
●
WARRANTS, each entitling the Holder to acquire one Common Share for each Warrant represented hereby
|
DEEP WELL OIL & GAS, INC.
|
|||
Per:
|
1.1
|
Definitions
In these Terms and Conditions, unless there is something in the subject matter or context inconsistent therewith:
|
(a)
|
"Common Shares" means the common shares in the capital of the Corporation;
|
(b)
|
"Corporation" means Deep Well Oil & Gas, Inc.;
|
(c)
|
"Current Market Price" of the Common Shares at any date means the simple average of the closing price per share for the Common Shares for any 10 consecutive trading days selected by the Corporation commencing not more than 45 trading days before such date on the stock exchange on which the Common Shares are listed or, if such Common Shares are not listed on a stock exchange, such over-the-counter market on which the Common Shares are quoted or traded (provided that if on any day in such period no closing price per share for the Common Shares is reported on by such exchange or over-the-counter market for such day, the average of the reported closing bid and asked prices on such exchange or over-the-counter market on such day shall be deemed to be the closing price per share for the Common Shares for such day) of if the Common Shares are not listed or quoted on any stock exchange or over-the-counter market, a price determined by the board of directors of the Corporation acting reasonably;
|
(d)
|
"Dividend Paid in the Ordinary Course" means a dividend declared payable on the Common Shares in any four consecutive quarters of the Corporation, whether in (1) cash, (2) securities of the Corporation, including rights, options or warrants (other than rights, options or warrants referred to in subsection
4.2(b)
) to purchase any securities of the Corporation or property or other assets of the Corporation, or (3) property or other assets of the Corporation, to the extent that the amount or value of such dividend together with the amount or value of all other dividends theretofore paid during such financial year (any such securities, property or other assets so distributed to be valued at the fair market value of such securities, property or other assets, as the case may be, as determined by the Corporation, which determination shall be conclusive, provided that, for the purposes of this definition, the fair market value of any Common Share distributed by way of dividend shall be conclusively determined by reference to the Current Market Price per Common Share on the date prior to the declaration of such dividend) does not exceed the greater of:
|
|
(i)
|
150% of the aggregate amount and/or value of dividends declared payable by the Corporation on the Common Shares in the period of four consecutive financial quarters ended immediately prior to the first day of such financial year; and
|
|
(ii)
|
100% of the consolidated net income of the Corporation before extraordinary items (but after dividends payable on all shares ranking prior to or on a parity with respect to the payment of dividends with the Common Shares) in respect of the period of four consecutive financial quarters ended immediately prior to the first day of the current financial quarter (such consolidated net income, extraordinary items and dividends to be shown in the audited consolidated financial statements of the Corporation for such period of four consecutive financial quarters or if there are no audited consolidated financial statements for such period, computed in accordance with generally accepted accounting principles, consistent with those applied in the preparation of the most recent audited consolidated financial statements of the Corporation);
|
(e)
|
"Exercise Price" means the price of US$
●
per Common Share (subject to adjustment in certain events);
|
(f)
|
"Expiry Date" means the
●
unless modified in accordance with section
3.3
and
3.8
;
|
(g)
|
"herein", "hereby" and similar expressions refer to these Terms and Conditions as the same may be amended or modified from time to time; and the expression "Article" and "Section" followed by a number refer to the specified Article or Section of these Terms and Conditions;
|
(h)
|
"person" means an individual, corporation, partnership, trustee or any unincorporated organization and words importing persons have a similar meaning;
|
(i)
|
“
Prior Share Issuance Reservations
”
means all previously reserved share issuances including the ten percent (10%) of the issued and outstanding share capital which may be granted as options pursuant to the Corporation’s stock option plan;
|
(j)
|
"Time of Expiry" means 4:30 p.m. (Edmonton time) on the Expiry Date;
|
(k)
|
"Warrant" means the warrant to acquire Common Shares evidenced by the Warrant Certificate issued to the Holder; and
|
(l)
|
"Warrant Certificate" means the certificate to which these Terms and Conditions are attached.
|
1.2
|
Gender
|
1.3
|
Interpretation Not Affected by Headings
|
1.4
|
Applicable Law
|
2.1
|
Issue of Warrants
|
2.2
|
Additional Warrants
|
2.3
|
Issue in Substitution for Lost Warrants
If the Warrant Certificate becomes mutilated, lost, destroyed or stolen:
|
(a)
|
the Corporation shall, subject to subsection
2.3(b)
hereof, issue and deliver a new Warrant Certificate of like date and tenor as the one mutilated, lost, destroyed or stolen, in exchange for and in place of and upon cancellation of such mutilated, lost, destroyed or stolen Warrant Certificate; and
|
(b)
|
the Holder shall bear the cost of the issue of a new Warrant Certificate hereunder and in the case of the mutilation, loss, destruction or theft of the Warrant Certificate, shall, as a condition precedent to the issuance of a new Warrant Certificate, furnish to the Corporation such evidence of mutilation, loss, destruction, or theft as shall be satisfactory to the Corporation in its sole discretion and, if required by the Corporation, an indemnity in an amount and form satisfactory to the Corporation, in its discretion, and shall pay the reasonable charges of the Corporation in connection therewith.
|
2.4
|
Warrantholder Not a Shareholder
|
2.5
|
Register of Warrants
|
2.6
|
Transfer
|
(a)
|
the conditions herein;
|
(b)
|
such reasonable requirements as the Corporation may require; and
|
(c)
|
all applicable securities legislation and requirements of regulatory authorities and all stock exchanges upon which the Common Shares are listed from time to time, as applicable.
|
2.7
|
Default on Issuance of Common Shares
|
3.2
|
Method of Exercise of The Warrant
|
(a)
|
duly completing and executing the Warrant Exercise Form attached hereto as
Appendix 2
; and
|
(b)
|
certifying that the Holder or (if different) the recipient of the Common Shares to be issued upon exercise of the Warrant either: (i) is not (a) a "U.S. Person", (b) exercising the Warrant(s) on behalf of a "U.S. Person", and (c) in the United States at the time that the Warrant(s) are exercised and did not execute or deliver the Warrant Exercise Form in the United States; or (ii) at or prior to the time of such exercise, has delivered to the Corporation a written opinion of counsel or other evidence satisfactory to the Corporation to the effect that the issuance of Common Shares upon such exercise is not required to be registered under the U.S. Securities Act and applicable state securities laws; or (iii) is the original purchaser of the Warrants and confirms as of the date of such exercise, the representations, warranties and agreements made by it in the subscription agreement pursuant to which the Warrant was purchased by it; and
|
(c)
|
surrendering this certificate, together with the Holder’s certified cheque or a bank draft, money order or wire transfer in the full amount of the total aggregate Exercise Price of the Common Shares being purchased, together with the duly completed and executed Warrant Exercise Form, to the Corporation at its offices,
at any time up until the Time of Expiry. This Warrant Certificate shall be deemed to be surrendered only upon personal delivery thereof to, or if sent by mail or other means of transmission, upon actual receipt thereof by, the Corporation at its offices.
|
3.3
|
Accelerated Exercise Right
|
(a)
|
In the event that the Corporation’s closing price, on the OTCQB, of the Common Share’s is equal to or exceeds US$1.00 per Common Share for at least thirty (30) consecutive trading days, the Expiry Date of the Warrant will automatically accelerate to the date which is thirty (30) calendar days following the date that written notice has been given to the Warrantholder.
|
(b)
|
To exercise the accelerated exercise right described in Section 3.3(a), the Corporation must give notice by hand delivery, facsimile transmission, other means of electronic communication or (provided that the mailing party does not know and should not reasonably have known of any disruption or anticipated disruption of postal service which might affect delivery of the mail) by registered mail (postage prepaid), to the Warrantholder confirming that the conditions described in Section 3.3(a) are met. This notice must inform the Warrantholder of the Corporation’s intention to exercise its right to cause the accelerated exercise of the Warrant. The accelerated exercise date, which will be the date that the Warrantholder must pay the exercise price of the Warrants to the Corporation, will be a date selected by the Corporation (the “
Accelerated Exercise Date
”) and will be no earlier than thirty (30) calendar days after the date of the notice described in this Section 3.3(b) is emailed to the Warrantholder.
|
(c)
|
In addition to any information required by applicable law and regulation, the notice of a accelerated exercise described in Section 3.3(b) shall state, as appropriate: (i) the accelerated Exercise Date; (ii) the number of Common Shares to be issued upon exercise of the Warrant; (iii) the Aggregate Warrant Price to be paid by the Warrantholder; and (iv) the place where the Warrants are to be surrendered for exercise.
|
3.4
|
Effect of Exercise of the Warrant
|
(a)
|
Upon surrender and payment as aforesaid the Common Shares so subscribed for shall be issued as fully paid and non-assessable shares, free from all liens, charges and encumbrances and the Holder shall become the Holder of record of such Common Shares on the date of such surrender and payment;
|
(b)
|
Within ten (10) business days after surrender and payment as aforesaid, the Corporation shall forthwith cause the issuance of and mail to the Holder a certificate for the Common Shares purchased as aforesaid;
|
(c)
|
Notwithstanding anything herein contained including any adjustment provided for in
Article 4
, the Corporation shall not be required, upon the exercise of any Warrants, to issue fractions of Common Shares or to distribute certificates which evidence fractional Common Shares. Any fractional Common Shares that would otherwise be issuable upon the exercise of Warrants shall be cancelled by the Corporation without compensation to the Holder thereof; and
|
(d)
|
Notwithstanding anything herein contained, no Common Shares will be issued pursuant to the exercise of any Warrant if the issuance of such Common Shares would constitute a violation of the securities laws of any applicable jurisdiction or the requirements of any applicable stock exchange,
and without limiting the generality of the foregoing, in the event that any of the Warrants are exercised prior to expiry of any hold period or other resale restriction placed thereon by such laws or requirements, the certificates evidencing the Common Shares thereby issued will bear such legend as is required under applicable securities laws and that, in the opinion of legal counsel to the Corporation, is necessary in order to avoid a violation of any such laws or requirements
.
|
3.5
|
Subscription for Less than Entitlement
|
3.6
|
Resale Restrictions
|
3.7
|
Expiration of the Warrant
|
3.8
|
Extension of the Warrant
|
4.1
|
Adjustment of Number of Common Shares
|
(a)
|
If and whenever at any time after the date hereof and prior to the Time of Expiry, any adjustment in the Exercise Price or in the calculation thereof pursuant to Section
4.2
shall occur as a result of:
|
|
(i)
|
an event referred to in subsection
4.2(a)
;
|
|
(ii)
|
the fixing by the Corporation of a record date for an event referred to in subsection
4.2(b)
; or
|
|
(iii)
|
the fixing by the Corporation of a record date for an event referred to in subsection
4.2(c)
if such event constitutes the issue or distribution to the holders of all or substantially all of its outstanding Common Shares of:
|
|
(A)
|
Common Shares, or
|
|
(B)
|
securities exchangeable for or convertible into Common Shares at less than the Current Market Price of the Common Shares on such record date, or
|
|
(C)
|
rights, options or warrants to acquire Common Shares at an exercise, exchange or conversion price per Common Share less than the Current Market Price of the Common Shares on such record date,
|
|
the number of Common Shares obtainable upon the subsequent exercise of the Warrant shall be adjusted simultaneously with the adjustment in the Exercise Price pursuant to Section
4.2
by multiplying the number of Common Shares theretofore obtainable on the exercise thereof immediately prior to such adjustment by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately after such date and the denominator shall be the total number of Common Shares outstanding immediately prior to such date. To the extent that any adjustment in subscription rights occurs pursuant to this subsection
4.1(a)
as a result of the distribution of securities convertible into or exchangeable for Common Shares referred to in subsection
4.2(a)
or as a result of the fixing by the Corporation of a record date for the distribution of rights, options or warrants referred to in subsection
4.2(b)
, the number of Common Shares purchasable upon exercise of a Warrant shall be readjusted immediately after the expiration of any relevant exchange, conversion or exercise right to the number of Common Shares which would be purchasable based upon
the number of Common Shares actually issued and remaining issuable immediately after such expiration, and shall be further readjusted in such manner upon expiration of any further such right. To the extent that any such adjustment in subscription rights occurs pursuant to this subsection
4.1(a)
as a result of the fixing by the Corporation of a record date for the distribution referred to in subsection
4.2(c)
of rights, options or warrants or exchangeable or convertible securities, the number of Common Shares purchasable upon exercise of a Warrant shall be readjusted immediately after the expiration of any relevant exchange, conversion or exercise right to the number which would be purchasable pursuant to this subsection
4.1(a)
if the fair market value of such rights, options or warrants or other exchangeable or convertible securities had been determined for the purposes of the adjustment pursuant to this subsection
4.1(a)
on the basis of the number of Common Shares issued and remaining issuable immediately after such expiration, and shall be further readjusted in such manner upon expiration of any further right.
|
(b)
|
If and whenever at any time after the date hereof and 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 subsection
4.2(a)
or a consolidation, amalgamation or merger of the Corporation (including, without limitation, by way of plan of arrangement) with or into any other body corporate, trust, partnership 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 body corporate, trust, partnership or other entity, any Warrantholder who has not exercised his right of acquisition prior to the effective date of such reclassification, reorganization, consolidation, amalgamation, merger, sale or conveyance, 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 kind and number of shares or other securities or property of the Corporation or of the body corporate, trust, partnership or other entity resulting from such reclassification, reorganization, consolidation, amalgamation or merger, or to which such sale or conveyance may be made, as the case may be, that such Holder would have been entitled to receive as a result of such reclassification, reorganization, consolidation, amalgamation, merger, sale or conveyance, if, on the record date or the effective date thereof, as the case may be, the Warrantholder had been the registered Holder of the number of Common Shares to which the Holder was theretofore entitled upon exercise. If determined appropriate by the board of directors of the Corporation to give effect to or to evidence the provisions of this subsection
4.1(b)
, the Corporation, its successor, or such purchasing body corporate, partnership, trust or other entity, as the case may be, shall prior to or contemporaneously with any such reclassification, reorganization, consolidation, amalgamation, merger, sale or conveyance, enter into an agreement or new Warrant Certificate which shall provide, to the extent possible, for the application of the provisions set forth in this Warrant Certificate with respect to the rights and interests thereafter of the Warrantholder to the end that the provisions set forth in this Warrant shall thereafter correspondingly be made applicable, as nearly as may reasonably be, with respect to any shares, other securities or property to which a Warrantholder is entitled on the exercise of its acquisition rights thereafter and upon entering into such new Warrant Certificate or agreement, the Corporation shall cease to have any obligations (including the obligation to issue any Common Shares) hereunder and the Holder shall cease to have any rights hereunder. Any Warrant Certificate or agreement entered into pursuant to the provisions of this subsection
4.1(b)
shall be an agreement entered into pursuant to the provisions of
Article 6
. Any Warrant Certificate or agreement entered into between the Corporation, any successor to the Corporation or such purchasing body corporate, partnership, trust or other entity shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this
Article 4
and which shall apply to successive reclassifications, reorganizations, consolidations, amalgamations, mergers, sales or conveyances.
|
4.2
|
Adjustment of Exercise Price
|
(a)
|
If and whenever after the date hereof and at any time prior to the Time of Expiry, the Corporation shall:
|
|
(i)
|
subdivide, divide or change its outstanding Common Shares into a greater number of Common Shares;
|
|
(ii)
|
consolidate, reduce or combine its outstanding Common Shares into a lesser number of Common Shares;
|
|
(iii)
|
make any distribution, other than by way of Dividend Paid in the Ordinary Course, to the holders of all or substantially all of the outstanding Common Shares payable in Common Shares;
|
|
the Exercise Price in effect on the effective date of such events referred to in subsections
4.2(a)(i)
,
4.2(a)(ii)
, or
4.2(a)(iii)
shall be adjusted to equal the price determined by multiplying the Exercise Price in effect immediately prior to such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares immediately after such date. Such adjustment shall be made successively whenever any event referred to in this subsection
4.2(a)
shall occur.
|
(b)
|
If and whenever at any time after the date hereof, the Corporation shall fix a record date which is prior to the Time of Expiry for the issue of rights, options or warrants to all or substantially all the holders of outstanding Common Shares under which such holders are entitled during a period expiring not more than sixty (60) days after the record date for such issue to subscribe for or purchase Common Shares, or securities convertible into or exchangeable for Common Shares, at a price per Common Share or having a conversion or exchange price per Common Share less than the Current Market Price per Common Share on such record date, the Exercise Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Exercise 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 number arrived at by dividing the aggregate 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 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 or exchangeable). If by the terms of the rights, options or warrants referred to in this subsection
4.2(b)
, there is more than one purchase, conversion or exchange price per Common Share, the aggregate 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, shall be calculated for purposes of the adjustment on the basis of the lowest purchase, conversion or exchange price per Common Share, as the case may be. Any Common Shares owned by or held for the account of the Corporation or any subsidiary of the Corporation shall be deemed not to be outstanding for the purpose of any such computation. To the extent that any adjustment in Exercise Price occurs pursuant to this subsection
4.2(b)
as a result of the fixing by the Corporation of a record date for the distribution of rights, options or warrants referred to in this subsection
4.2(b)
, the Exercise Price shall be readjusted immediately after the expiration of any relevant exchange, conversion or exercise right to the Exercise Price which would then be in effect based upon the number of Common Shares actually issued and remaining issuable after such expiration, and shall be further readjusted in such manner upon expiration of any further such right.
|
(c)
|
If and whenever at any time prior to the Time of Expiry, the Corporation shall fix a record date which is prior to the Time of Expiry for the issue or distribution to all or substantially all the holders of its outstanding Common Shares of:
|
(ii)
|
shares of any class other than Common Shares (excluding Dividends Paid in the Ordinary Course);
|
|
(ii)
|
rights, options or warrants (excluding those referred to in subsection
4.2(b)
);
|
|
(iii)
|
evidences of its indebtedness; or
|
(iv)
|
any other property or assets (excluding Dividends Paid in the Ordinary Course);
|
4.3
|
General Adjustments
|
(a)
|
If necessary, appropriate adjustments shall be made in the application of the provisions set forth in this
Article 4
with respect to the rights and interests thereafter of the holders of Warrants to the end that the provisions set forth in this
Article 4
shall thereafter correspondingly be made applicable as nearly as may reasonably be possible in relation to any shares or other securities or property thereafter deliverable upon the exercise of any Warrant. Any such adjustments shall be made by and set forth in an amendment to this Warrant Certificate hereto approved by the directors of the Corporation and shall for all purposes conclusively be deemed to be an appropriate adjustment.
|
(b)
|
If any case in which this
Article 4
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 Warrant exercised after 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 receive any distributions made on such additional Common Shares declared in favour of holders of record of Common Shares on and after the relevant date of exercise or such later date as such Holder would, but for the provisions of this subsection
4.3(b)
, have become the Holder of record of such additional Common Shares as a result of the exercise of the Warrants.
|
(c)
|
No adjustment in the Exercise Price or in the number of shares to be issued pursuant to the exercise of the Warrants shall be required unless such adjustment would result in a change of at least 1% in the Exercise Price then in effect or unless the number of shares to be issued would change by at least 1/100th of a share, provided, however, that any adjustments which, except for the provisions of this subsection
4.3(c)
would otherwise have been required to be made, shall be carried forward and taken into account in any subsequent adjustment.
|
(d)
|
The adjustments provided for in this
Article 4
in the Exercise Price and in the number and classes of shares which are to be received on the exercise of Warrants are cumulative. After any adjustment pursuant to this Section, the term "Common Shares" where used in this Warrant shall be interpreted to mean the shares or other securities or property of the Corporation which, as a result of all prior adjustments pursuant to this Section, the Warrantholder is entitled to receive upon the exercise of his Warrant, and the number of Common Shares indicated in any subscription made pursuant to a Warrant shall be interpreted to mean the number and kind of securities or property which, as a result of all prior adjustments pursuant to this
Article 4
, a Warrantholder is entitled to receive upon the full exercise of a Warrant entitling the Holder thereof to purchase the number of Common Shares so indicated.
|
(e)
|
All securities and property which a Warrantholder is at the time in question entitled to receive on the full exercise of his Warrant, whether or not as a result of adjustments made pursuant to this Section, shall, for the purposes of the interpretation of this Warrant be deemed to be securities and property which such Warrantholder is entitled to purchase pursuant to such Warrant.
|
4.4
|
Notice of Adjustment
|
5.1
|
Covenants by the Corporation
The Corporation hereby covenants and agrees as follows:
|
(a)
|
it will at all times maintain its corporate existence and will carry on its business as currently carried on;
|
(b)
|
it will reserve and there will remain unissued out of its authorized capital a sufficient number of Common Shares to satisfy the rights of acquisition provided for in the Warrant Certificate; and
|
(c)
|
all Common Shares issued upon exercise of the right to purchase provided for herein shall, upon payment of the Exercise Price therefor, be issued as fully paid and non-assessable shares.
|
6.1
|
Corporation May Consolidate, etc. on Certain Terms
|
6.2
|
Successor Corporation Substituted
|
Signature Guaranteed | Signature of Holder |
1.
|
The signature of the Holder must be the signature of the person appearing on the face of this 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 Corporation or an investment dealer who is a member of a recognized stock exchange.
|
4.
|
Warrants shall only be transferable in accordance with applicable laws. The Warrants and the Common Shares issuable thereunder are subject to resale restrictions and hold periods which will prevent the Holder, except in very limited circumstances from trading such securities. Holders should consult their legal advisors in this regard.
|
o
|
The undersigned Holder (i) at the time of exercise of these Warrants is not in the United States; (ii) is not a "U.S. person" as defined in Regulation S under the United States Securities Act of 1933, as amended (the "U.S. Securities Act"), and is not exercising these Warrants on behalf of a "U.S. person"; (iii) did not acquire the Warrants in the United States; (iv) did not execute or deliver this Warrant Exercise Form in the United States; or
|
o
|
The undersigned certifies that an exemption from registration under the U.S. Securities Act and any applicable state securities laws is available, and attached hereto is an opinion of counsel to such effect, it being understood that any opinion of counsel tendered in connection with the exercise of these Warrants must be in form and substance satisfactory to the Corporation; or
|
o
|
The undersigned certifies that the undersigned is the original purchaser of the Warrant(s) being exercised and confirms as of the date hereof, the representations, warranties and agreements made by the undersigned in the subscription agreement pursuant to which such Warrant(s) was acquired by it.
|
Name in full | Address(es) (Include Postal Code) | # of Common Shares | ||
Witness
|
Signature of Warrantholder (or its representative if not an individual).
|
Name:
|
Address:
|
1.
|
If the Warrant 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 Warrant Exercise Form must be guaranteed by an authorized officer of a chartered bank, trust corporation or an investment dealer who is a member of a recognized stock exchange.
|
2.
|
If the Warrant Exercise Form is signed by a trustee, executor, administrator, curator, guardian, attorney, officer of a corporation or any person acting in a judiciary or representative capacity, the certificate must be accompanied by evidence of authority to sign satisfactory to the Corporation.
|
3.
|
If the registered Holder exercises its right to receive Common Shares prior to expiry of any hold period or other resale restriction placed on the Warrants by the securities laws of any applicable jurisdiction or the requirements of any applicable stock exchange, the certificates evidencing the Common Shares thereby issued will bear such legend as is required under applicable securities laws and that, in the opinion of legal counsel to the Corporation, be necessary in order to avoid a violation of any such laws or requirements.
|
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|
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|
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|
Page 4 of 6
|
Page 5 of 6
|
DEEP WELL OIL & GAS, INC.
|
||
By:
|
||
Name:
|
||
Title:
|
||
OPTIONEE
|
||
By:
|
||
Name:
|
Portwest Investments Ltd.
|
|
Address:
|
P.O. Box 1651
|
|
Edmonton, Alberta
|
||
T5J 2N9
|
||
CANADA
|
Page 6 of 6
|
Amending Agreement – Memorandum dated July 10, 2013
|
1 of 4 |
1
|
EFFECTIVE DATE
|
Effective June 20, 2013, the Consultant shall continue to provide the services as in the past and as set out in the Prior Agreement until termination of this Agreement in accordance with the terms herein.
|
|
2
|
TERM OF CONTRACT
|
This Agreement shall remain effective and the Consultant’s Representative shall continue to provide his expertise and service as Advisor and Agent for the Company in regards to all matters undertaken on behalf of the Company until December 31, 2014 in accordance with the terms herein.
|
|
3
|
FEES
|
|
3.1
|
The Company will pay fees to the Consultant in the sum of ONE ($1.00) DOLLAR in Canadian currency (the “Fee”) payable upon the execution of this Amending Agreement. This Fee does not include any fees or remuneration that the Consultant or the Consultant’s Representative receives for acting as a director of Deep Well Oil & Gas, Inc. (“DWOG”)
|
|
3.2
|
the Company (directly or through DWOG) will grant the Consultant a 5 year options on 1,000,000 of its common shares exercisable at $0.05 USD per share. One half of these share are vested immediately and the remaining one half will be vested on June 20, 2014. The other terms and conditions of the option shall be in the same form which the company has granted in the past.
|
4
|
EXPENSES
|
The Company shall reimburse the Consultant, at cost, for all third party, travel, long distance, cellular, meal, meeting, rental, equipment and office expenses incurred on behalf of the Company. Mileage will be charged at $0.60 Cdn per kilometer escalating in accordance with the Canadian Revenue Agency guidelines.
|
|
5
|
RETENTION OR PROIR AGREMENT CLAUSES
|
Clauses of the Prior Agreement that are retained are:
|
|
●
|
Paragraph 6 - Independent Contractor,
|
|
●
|
Sub-Paragraphs 7.2 and 7.3 - Termination,
|
|
●
|
Paragraph 9.2 – Consultant’s Duties,
|
|
●
|
Paragraph 11 – Indemnity
|
|
●
|
Paragraph 14 – Return of Property
|
|
●
|
Paragraph 15 – Governing Law
|
Amending Agreement – Memorandum dated July 10, 2013
|
2 of 4 |
|
●
|
Paragraph 16 - Construction
|
|
●
|
Paragraph 17 – Headings
|
|
●
|
Paragraph 18 - Taxes
|
6
|
TERMINATION OF PRIOR AGREEMENT CLAUSES
|
Clauses of the Prior Agreement that are terminated are (other then those paragraphs modified in this Amending Agreement:
|
|
●
|
Sub-Paragraphs 7.1,
|
|
●
|
Paragraph 8 – Termination after Change in Control,
|
|
●
|
Paragraph 9.1 – Consultant’s Duties
|
7
|
CONSIDERATION FOR TERMINATION OF PRIOR AGREEMENT
|
As consideration for the execution of this Amending Agreement and the Termination of parts of the Prior Agreement set out herein, the Consultant will receive:
|
|
7.1
|
$70,000 Cdn, and
|
|
7.2
|
850,000 units of DWOG shares and warrants at a price of $0.05 USD per unit. Each unit shall be comprised of one restricted DWOG common share and one 3 year full warrant entitling the Consultant to be able to purchase another share for $0.075 USD per share based on the same terms and conditions that DWOG historically issued it share/warrant units. The warrants expire on June 20, 2016.
|
8
|
NOTICE
|
Notices served in accordance with the provisions of this Amending Agreement or the Prior Agreement shall be in writing and served in person to the other party or mailed postage prepaid:
|
|
To the Company:
Suite 700, 100 Street Place
10150 – 100 Street NW
Edmonton, Alberta
T5J 0P6
To the Consultant:
Portwest Investments Ltd.
c/o PO Box 1651
Edmonton, AB T6J 2N9
Attention: Dr. Horst A. Schmid
|
Amending Agreement – Memorandum dated July 10, 2013
|
3 of 4 |
9
|
CONFLICT BETWEEN AGREEMENTS
|
If any provision contained in this Amending Agreement conflicts with the Prior Agreement, the provisions of this Amending Agreement shall prevail.
|
|
10
|
AMENDING AGREEMENT MEMORANDUM
|
This Amending Agreement shall be considered as an amending memorandum as contemplated in Paragraph 12 of the Prior Agreement.
|
Amending Agreement – Memorandum dated July 10, 2013
|
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