SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported): September 18, 2019
HOUSTON AMERICAN ENERGY CORP.
(Exact name of registrant as specified in its charter)
(State or other jurisdiction of
incorporation or organization)
801 Travis Street, Suite 1425
Houston, Texas 77002
(Address of principal executive offices, including zip code)
(Registrant’s telephone number, including area code)
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligations of the registrant under any of the following provisions (see General Instruction A.2. below):
|[ ]||Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)|
|[ ]||Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)|
|[ ]||Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))|
|[ ]||Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))|
Securities registered pursuant to Section 12(b) of the Act
|Title of each class||Trading Symbol(s)||Name of each exchange on which registered|
|Common Stock, par value $0.001 per share||HUSA||NYSE American|
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company [ ]
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. [ ]
|Item 1.01.||Entry into a Material Definitive Agreement|
On September 18, 2019, Houston American Energy Corp. (the “Company”) entered into Bridge Loan Agreements (the “Bridge Loan Agreement”) with the Company’s Chief Executive Officer and principal shareholder pursuant to which the Company issued promissory notes (the “Bridge Loan Notes”) in the principal amount of $621,052 and warrants (the “Warrants”) to purchase common stock. The aggregate consideration received by the Company for the Bridge Loan Notes and Warrants was $590,000.
Bridge Loan Notes
The Bridge Loan Notes are unsecured obligations bearing interest at 12.0% per annum and payable interest only on the last day of each calendar month with any unpaid principal and accrued interest being payable in full in 120 calendar days.
The Bridge Loan Notes are subject to mandatory prepayment from and to the extent of (i) 100% of net proceeds received by the Company from any sales, for cash, of equity or debt securities (other than Bridge Loan Notes) of the Company, (ii) 100% of net proceeds received by the Company from the sale of assets (other than sales in the ordinary course of business); and (iii) 75% of net proceeds received from the sale of oil and gas produced from the Company’s Hockley County, Texas properties. Additionally, the Company has the option to prepay the Bridge Loan Notes, at its sole election, without penalty.
The Warrants are exercisable for a period of ten years to purchase shares of common stock at $0.197 per share and subject to standard adjustments to reflect stock splits, reverse stock splits and stock dividends.
Each Warrant evidences a right to purchase two shares of common stock for each dollar of consideration paid for Bridge Loan Notes, or an aggregate of 1,180,000 shares.
The foregoing is qualified in its entirety by reference to the forms of Bridge Loan Agreement, Bridge Loan Note and Warrant filed herewith as Exhibits 10.1, 10.2 and 10.3.
|Item 2.03.||Creation of a Direct Financial Obligation or an Obligation Under an Off-Balance Sheet Arrangement of a Registrant|
The information relating to the Bridge Loan Agreement and Bridge Loan Notes included in Item 1.01 of this Form 8-K is incorporated herein by reference.
|Item 3.02.||Unregistered Sales of Equity Securities|
See Item 1.01 above regarding the sale of Bridge Loan Notes and Warrants.
Proceeds from the sale of the Bridge Loan Notes will be used to pay for the acquisition of a 20% working interest in 5,871 gross acres in the Northern Shelf of the Permian Basin.
The Bridge Loan Notes and Warrants were offered and sold in a private placement transaction (the “Offering”) pursuant to the exemption from registration provided by Section 4(a)(2) of the Securities Act of 1933 (the “Securities Act”) and Rule 506(b) promulgated thereunder. Each of the investors is an affiliate of the Company and represented that it is an “accredited investor”, as defined in Rule 501 promulgated under the Securities Act.
No placement agents, underwriters or finders participated in the Offering and no commissions or similar fees were paid in connection with the Offering.
This Current Report on Form 8-K does not constitute an offer to sell or the solicitation of an offer to buy any securities. At the time of their issuance, the Bridge Loan Notes, the Warrants and the shares of Common Stock issuable upon exercise of the Warrants have not been registered under the Securities Act, or any applicable state securities laws and may not be offered or sold in the United States, absent registration or an applicable exemption from such registration requirements.
Pursuant to the Warrant, the Company granted certain “piggyback” registration rights” to the Warrant holders.
|Item 7.01.||Regulation FD Disclosure.|
Houston American Energy Corp. (the “Company”) issued a press release on September 20, 2019 announcing financing and completion of the acquisition of additional acreage in the Permian Basin. The press release is attached to this Current Report on Form 8-K as Exhibit 99.1 and is incorporated herein solely for purposes of this Item 7.01.
In accordance with General Instruction B.2 of Form 8-K, the information set forth in this Item 7.01, including Exhibit 99.1, is furnished pursuant to Item 7.01 and shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities under that section, nor shall such information be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended, or the Exchange Act, except as shall be expressly set forth by specific reference in such a filing.
|Item 9.01.||Financial Statements and Exhibits.|
|10.1||Form of 2019 Bridge Loan Agreement|
|10.2||Form of 2019 Bridge Loan Note|
|10.3||Form of 2019 Warrant|
|99.1||Press release, dated September 20, 2019|
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this Report to be signed on its behalf by the undersigned hereunto duly authorized.
|HOUSTON AMERICAN ENERGY CORP.|
|Dated: September 20, 2019|
|By:||/s/ James Schoonover|
|Title:||Chief Executive Officer|
BRIDGE LOAN AGREEMENT
THIS BRIDGE LOAN AGREEMENT (hereinafter the “Agreement”), is entered into on the date set forth below by and between Houston American Energy Corp., a Delaware corporation (the “Borrower”), and the lenders whose signatures appear hereon (the “Lender(s)”).
WHEREAS, the Borrower is engaged in oil and gas exploration and is party to an agreement to acquire an interest in mineral acreage in Hockley County, Texas (the “Hockley County Acreage”);
WHEREAS, the Borrower is presently engaged in efforts to secure additional equity capital or debt financing (all sales, for cash, of equity or debt securities – excluding the Bridge Loan Notes issued pursuant to this Agreement – of the Borrower from and after the date hereof until the Bridge Loans made hereunder are paid in full, being referred to as the “Funding Program”) to support the acquisition of the Hockley County Acreage;
WHEREAS, pending the receipt of funding from the Funding Program, the Borrower desires to borrow, and the Lenders are willing to lend, up to $600,000 (the “Bridge Loan”) to support the acquisition of the Hockley County Acreage; and
WHEREAS, as consideration for making the Bridge Loan, the Borrower has agreed to issue to the Lenders senior unsecured promissory notes (the “Bridge Loan Note”), in the form attached hereto as Exhibit A, and warrants (the “Warrant”), in the form attached hereto as Exhibit B.
NOW, THEREFORE, in consideration of the mutual covenants contained in this Agreement, and for other good and valuable consideration the receipt and adequacy of which are hereby acknowledged, the Borrower and Lenders agree as follows:
1. Bridge Loan Notes and Warrants. The Borrower agrees to issue to the Lenders (a) Bridge Loan Notes in the amount set forth on the signature page hereof, for aggregate consideration not to exceed $600,000, the terms of which Bridge Loan Notes are set forth herein and in the Bridge Loan Note, and (b) Warrants to purchase one share of common stock of the Borrower for each dollar of Bridge Loan Notes issued, the terms of which Warrants are set forth in Exhibit B.
2. Consideration. As consideration for the issuance of the Bridge Loan Notes and Warrants, the Lenders shall pay to the Borrower an amount equal to 95% of the face amounts of the Bridge Loan Notes issued to said Lenders.
3. Interest. The unpaid principal amount of the Bridge Loan shall bear interest until paid at an interest rate per annum (the “Applicable Rate”) of twelve percent (12%); provided, however, that so long as an Event of Default has occurred and is continuing, the Applicable Rate shall be the lesser of eighteen percent (18%) per annum or the maximum rate permissible under applicable law. Interest on the unpaid principal amount of the Bridge Loan shall accrue from and including the date funds are advanced but not including the date such Bridge Loan is paid. Interest shall be calculated on the basis of a year consisting of 365 days and paid for actual days elapsed.
|Page 1 of 6|
4. Payments. Subject to the provisions of Sections 5 and 6 below, the Bridge Loans, including interest accrued thereon, shall be repayable by the Borrower:
(a) in monthly installments of interest only payable on the last day of each calendar month so long as the Bridge Loan remains outstanding; and
(b) any unpaid principal and accrued interest on the Bridge Loan shall be payable in full one hundred twenty (120) calendar days following the date of the applicable Bridge Loan Note (the “Maturity Date”).
All payments shall be applied first to expenses, if any, of collection, then to accrued and unpaid interest and then to principal. All payments by the Borrower hereunder shall be made without set-off or counterclaim and shall be made to the Lender at its address set forth on the signature page, or at such other place as may be designated in writing by the Lender to the Borrower.
5. Prepayment. The Borrower shall, (i) on the last business day of each month so long as amounts remain owing hereunder, prepay the Bridge Loans, including accrued interest, from and to the extent of one hundred percent (100%) of the net proceeds received by the Borrower from the Funding Program, and (ii) not later than five (5) business days following the sale (an “Asset Sale”) by the Borrower of any assets, other than assets sold in the ordinary course of business, prepay the Bridge Loans, including accrued interest, from and to the extent of one hundred percent (100%) of the net proceeds received by the Borrower from the sale of assets, and (iii) not later than five (5) business days following the receipt of proceeds (“Oil and Gas Proceeds”) from sale of oil and gas production arising from the Hockley County Acreage, prepay the Bridge Loans, including accrued interest, from and to the extent of seventy-five percent (75%) of the net Oil and Gas Proceeds received. In addition, the Borrower may, at its election, repay the Bridge Loan in whole or in part at any time prior to the Maturity Date without premium or penalty.
6. Default. The occurrence of any of the following shall constitute an “Event of Default” under this Agreement and under the Bridge Loan Notes:
(a) The Borrower shall fail to pay (i) any principal payment owed hereunder on the due date required hereunder, (ii) any interest payment owed hereunder on the due date required hereunder, or (iii) any other payment required under the terms of this Agreement or the Bridge Loan Notes on the due date for such payment, and such payment shall not have been made within five (5) days after the Borrower’s receipt of the Lender’s written notice to the Borrower of such failure to pay (any such event being referred to as a “Payment Default”); or
(b) The Borrower shall fail to observe or perform any other covenant, obligation, condition or agreement contained in this Agreement or the Bridge Loan Notes (other than those specified in Section 6(a) of this Agreement) and such failure shall continue for ten (10) days after written notice thereof is delivered to the Borrower by a holder of the Bridge Loan Note; or
|Page 2 of 6|
(c) The Borrower shall:
(i) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian of itself or of all or a substantial part of its property;
(ii) be unable, or admit in writing its inability, to pay its debts generally as they mature;
(iii) make a general assignment for the benefit of any of its creditors;
(iv) commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or consent to any such relief or to the appointment of or taking possession of its property by any official in an involuntary case or other proceeding commenced against it; or
(v) take any action for the purpose of effecting any of the foregoing; or
(d) Proceedings for the appointment of a receiver, trustee, liquidator or custodian of the Borrower or of all or a substantial part of the property thereof, or an involuntary case or other proceedings seeking liquidation, reorganization or other relief with respect to the Borrower or the debts thereof under any bankruptcy, insolvency or other similar law now or hereafter in effect, shall be commenced and an order for relief entered or such proceeding shall not be dismissed or discharged within sixty (60) days after commencement.
7. Rights of Holder Upon Default. Upon the occurrence or existence of any Event of Default (other than an Event of Default under Sections 6(c) or 6(d)) and at any time thereafter during the continuance of such Event of Default, the Lender may, by written notice to the Borrower, declare all outstanding amounts payable by the Borrower under this Agreement to be immediately due and payable without presentment, demand, protest, notice of intent to accelerate, or any other notice of any kind, all of which are hereby expressly waived. Upon the occurrence or existence of any Event of Default described in Sections 6(c) or 6(d) hereof, immediately and without notice, all outstanding amounts payable by the Borrower under this Agreement and the Bridge Loan Notes shall automatically become immediately due and payable, without presentment, demand, protest, notice of intent to accelerate, or any other notice of any kind, all of which are hereby expressly waived, anything contained herein to the contrary notwithstanding. In addition to the foregoing remedies, upon the occurrence or existence of any Event of Default, the Lender may exercise any other right, power or remedy permitted to it by the UCC, or otherwise available at law or in equity or both.
8. Representations, Warranties and Covenants of the Borrower. The Borrower hereby represents, warrants and covenants to the Lender that:
(a) Authorization. The Borrower has full power and authority to enter into this Agreement and such Agreement constitutes a valid and legally binding obligation of the Borrower enforceable in accordance with its terms.
|Page 3 of 6|
(b) Use of Proceeds. The proceeds of the Bridge Loan shall be used to support the acquisition of the Hockley County Acreage and general working capital needs of the Borrower and no payments will be made to repay indebtedness owed to affiliates of the Borrower unless and until the Bridge Loan Notes have been repaid in full.
(c) Prepayment Notices. Within two (2) business days following receipt by the Borrower, on or after the date hereof, of net funds from (i) the Funding Program, (ii) an Asset Sale, or (iii) Oil and Gas Proceeds; the Borrower shall provide written notice to the holders of the Bridge Loan Notes with respect to the receipt of such funds.
(d) No Senior or Parity Debt. So long as any amounts remain outstanding and owing under the Bridge Loan Notes, without the prior written consent of holders of a majority in total principal amount then owing under the Bridge Loan Notes (the “Majority Holders”), the Borrower will not create, incur, assume or permit to exist any indebtedness which is not expressly and fully subordinated to the Bridge Loan Notes and does not contain subordination terms that are reasonably satisfactory to the Majority Holders.
(e) Negative Pledge. So long as any amounts remain outstanding and owing under the Bridge Loan Notes, without the prior written consent of the Majority Holders, the Borrower will not create, incur, assume or suffer to exist any liens upon or with respect to any assets now owned or hereafter acquired by it or on any of its rights in respect thereof, except for:
(i) liens existing as of the date hereof;
(ii) liens incurred in the ordinary conduct of the business of the Borrower and its subsidiaries or the ownership of their respective assets; and
(iii) liens for taxes, assessments or governmental charges or levies, or otherwise arising by operation of law, which taxes, assessments or governmental charges or levies are not yet due and payable or which are being contested in good faith by appropriate proceedings.
9. Representations, Warranties and Covenants of the Lender. The Lender hereby represents, warrants and covenants to the Borrower that:
(a) Authorization. The Lender has full power and authority to enter into this Agreement and such Agreement constitutes a valid and legally binding obligation of the Lender enforceable in accordance with its terms.
(b) Purchase Entirely for Own Account. This Agreement is made with the Lender in reliance upon the Lender’s representation to the Borrower, which by the Lender’s execution of this Agreement the Lender hereby confirms, that the Bridge Loan Note and Warrant will be acquired for investment for the Lender’s own account, not as a nominee or agent, and not with a view to the resale or distribution of any part thereof, and that the Lender has no present intention of selling, granting any participation in, or otherwise distributing the same. By executing this Agreement, the Lender further represents that the Lender does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to the Bridge Loan Note or Warrant.
|Page 4 of 6|
(c) Disclosure of Information. The Lender has received such information regarding the Borrower and the Bridge Loan Notes and Warrant as the Lender shall have requested and believes it has received all the information considered by the Lender as being necessary or appropriate for deciding whether to enter into the transaction contemplated hereby. The Lender further represents that it has had an opportunity to ask questions and receive answers from the Borrower regarding the terms and conditions of the transactions contemplated hereby and the business, properties and financial condition of the Borrower.
(d) Investment Experience. The Lender acknowledges that it is able to fend for itself, can bear the economic risk of the transactions contemplated herein, and has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the transaction contemplated herein.
(e) Accredited Investor. The Lender is an “accredited investor” within the meaning of Rule 501 of Regulation D promulgated under the Securities Act of 1933 (the “Securities Act”), as presently in effect.
(f) Restricted Securities. The Lender understands that the Bridge Loan Notes and Warrants, and shares underlying the Warrants, are characterized as “restricted securities” under the federal securities laws inasmuch as they are being acquired from the Borrower in a transaction not involving a public offering and that under such laws and applicable regulations such securities may be resold without registration under the Securities Act only in certain limited circumstances. In this connection, the Lender represents that it is familiar with SEC Rule 144, as presently in effect, and understands the resale limitations imposed thereby and by the Securities Act.
10. Successors and Assigns. This Agreement shall be binding upon the executors, administrators, heirs, legal representatives, legatees, successors and assigns of the parties hereto and shall inure to the benefit of the parties and their successors and assigns. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas.
11. Notices. Any notice required to be given under this Agreement shall be in writing and shall be deemed effective upon personal delivery or upon deposit in the U.S. mail, registered or certified, postage prepaid and properly addressed to the party entitled to such notice at the address indicated below such party’s signature line on this Agreement or at such other address as such party may designate by ten days’ advance written notice under this paragraph to all other parties to this Agreement.
12. No Waiver. The failure of any party hereto in any instance to exercise any rights provided hereby shall not constitute a waiver of any other rights that may subsequently arise under the provisions of this Agreement or any other agreement between the parties. No waiver of any breach or condition of this Agreement shall be deemed to be a waiver of any other or subsequent breach or condition, whether of like or different nature.
13. Counterparts. This Agreement may be executed in counterparts, all of which shall be considered one and the same instrument.
[Lender Signature Pages Follow]
|Page 5 of 6|
IN WITNESS WHEREOF, the parties hereto have caused this Bridge Loan Agreement to be duly executed by their respective authorized signatories as of the date indicated below.
|HOUSTON AMERICAN ENERGY CORP.|
|Dated: September 18, 2019|
|801 Travis, Suite 1425|
|Houston, Texas 77002|
|Face Amount of|
|Bridge Loan Notes:||$___________________|
|Page 6 of 6|
|$________________||September 18, 2019|
FOR VALUE RECEIVED, the undersigned, HOUSTON AMERICAN ENERGY CORP., a Delaware corporation (the “Borrower”), promises to pay to the order of _________________________________ (the payee, its successors and assigns are hereinafter called the “Lender”), at _________________________________________________________ or at such other place as may be designated in writing by the Lender, the principal sum of $________________, together with interest thereon.
Unless otherwise defined in this Note, all terms defined or referenced in that certain Bridge Loan Agreement of even date herewith (the “Loan Agreement”), among the Borrower and the Lender, will have the same meanings in this Note as in the Loan Agreement.
This Note is executed and delivered in connection with the Loan Agreement. All advances made or to be made under this Note will be made subject to the terms and conditions stated in the Loan Agreement.
The Borrower agrees that if, and as often as, this Note is placed in the hands of an attorney for collection or to defend or enforce any of the Lender’s rights hereunder or under any instrument securing payment of this Note, the Borrower will pay the Lender’s reasonable attorneys’ fees, all court costs and all other expenses incurred by the Lender in connection therewith.
This Note is issued by the Borrower and accepted by the Lender pursuant to a lending transaction negotiated, consummated and to be performed in Houston, Texas. Payment of this Note is subject to the terms and conditions of the Loan Agreement. This Note is to be construed according to the internal laws of the State of Texas. All actions with respect to this Note, the Loan Agreement or any other instrument securing payment of this Note may be instituted in the courts of the State of Texas sitting in Harris County, Texas, or the United States District Court sitting in Houston, Texas, as the Lender may elect, and by execution and delivery of this Note, the Borrower irrevocably and unconditionally submits to the jurisdiction (both subject matter and personal) of each such court and irrevocably and unconditionally waives: (a) any objection the Borrower might now or hereafter have to the venue in any such court; and (b) any claim that any action or proceeding brought in any such court has been brought in an inconvenient forum.
The makers, endorsers, sureties and all other persons who may become liable for all or any part of this obligation severally waive presentment for payment, protest and notice of nonpayment. Said parties consent to any extension of time (whether one or more) of payment hereof, release of all or any part of the security for the payment hereof or release of any party liable for the payment of this obligation. Any such extension or release may be made without notice to any such party and without discharging such party’s liability hereunder.
(SIGNATURE PAGE TO FOLLOW)
|Page 1 of 2|
SIGNATURE PAGE TO PROMISSORY NOTE
IN WITNESS WHEREOF, the Borrower has executed this instrument effective the date first above written.
|HOUSTON AMERICAN ENERGY CORP.|
|a Delaware corporation|
|Page 2 of 2|
NEITHER THIS WARRANT REPRESENTED BY THIS CERTIFICATE NOR THE SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE OF THIS WARRANT HAVE BEEN REGISTERED OR QUALIFIED FOR SALE UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY SECURITIES LAWS. NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE OF THIS WARRANT MAY BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OF THE SECURITIES UNDER SAID ACT AND ANY OTHER APPLICABLE SECURITIES LAWS, OR RECEIPT BY THE COMPANY OF AN OPINION OF COUNSEL OR OTHER EVIDENCE ACCEPTABLE TO THE COMPANY THAT SUCH SALE OR TRANSFER OF SUCH SECURITIES IS EXEMPT FROM REGISTRATION UNDER THE ACT AND ANY OTHER APPLICABLE SECURITIES LAWS.
WARRANT to Purchase COMMON SHARES of
HOUSTON AMERICAN ENERGY CORP.
|No. 2019-BL-___||September 18, 2019|
THIS CERTIFIES that, for value received, ______________________________________ (together with its successors and assigns, the “Holder”) is entitled, subject to the terms and conditions set forth below, to subscribe for and purchase ___________________________________________________________ (___________)1 fully paid and non-assessable Common Shares (as defined below) of Houston American Energy Corp., a Delaware corporation (together with its successors and assigns, the “Company”), subject to adjustment in accordance with Section 2.7, at a purchase price per Common Share equal to $0.197 per share (the “Exercise Price”).
This warrant (this “Warrant”) is exercisable on or after the date hereof and expires at 5:00 p.m., Houston, Texas time, on the Expiration Date (as defined below).
This Warrant is one of a series of Warrants issued pursuant to Bridge Loan Agreements, dated on or about the date hereof, between the Company and the initial Holders.
1.1 Definitions. As used herein, the following terms shall have the meanings set forth below:
“Commission” shall mean the U.S. Securities and Exchange Commission or any other United States Federal agency administering the Securities Act and/or the Exchange Act at the time.
“Common Shares” shall mean and include the shares of common stock of the Company, par value $0.001 per share, or any such other securities (equity or debt) into which or for which such shares are converted, substituted or exchanged.
“Company” shall have the meaning set forth in the introduction hereto.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, or any successor Federal statute, and the rules and regulations of the Commission promulgated thereunder, all as the same shall be in effect from time to time.
“Exercise Date” shall have the meaning set forth in Section 2.1.
“Exercise Price” shall have the meaning set forth in the preamble hereto, as may be adjusted from time to time.
“Expiration Date” shall mean the date that is ten years from the date of issuance of this Warrant.
1 2 multiplied by the dollar amount paid for Bridge Loan Notes issued pursuant to the Bridge Loan Agreement.
“Fair Market Value” shall mean, as of any particular date (the “Determination Date”), (i) if the Common Shares are traded on an exchange, the closing or last sale price reported for the last trading day immediately prior to the Determination Date; (ii) if the Common Shares are not traded on an exchange but are traded in the over-the-counter market, the average of the closing bid and ask price reported for the last trading day immediately prior to the Determination Date, (iii) except as provided in clause (d) below, if the Common Shares are not publicly traded, the price determined in good faith by the Company’s board of directors or (d) if the Determination Date is the date of liquidation, dissolution or winding up of the Company, the amount to be paid per Common Share on such liquidation, dissolution or winding up assuming that all Common Shares underlying the Warrants have been issued as of the Determination Date.
“Holder” shall have the meaning set forth in the preamble hereto.
“Registrable Securities” shall mean (i) the Warrant Shares (whether or not the related Warrants have been exercised) and (ii) any other securities issued or issuable with respect to the Warrants or Warrant Shares by way of stock dividends or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization or otherwise. As to any particular Registrable Securities, once issued such securities shall cease to be Registrable Securities when (A) they are sold pursuant to an effective Registration Statement under the Securities Act, (B) they are sold pursuant to Rule 144 (or any similar provision then in force under the Securities Act) and the transferee thereof does not receive “restricted securities” as defined in Rule 144, (C) they have been sold in a private transaction in which the transferor’s rights under this Agreement are not assigned to the transferee of the securities in accordance with Section 3.3 of this Warrant, or (D) they become eligible for resale pursuant to Rule 144(d) (or any similar rule then in effect). No Registrable Securities may be registered under more than one Registration Statement at any one time.
“Securities Act” shall mean the United States Securities Act of 1933, as amended, or any successor United States Federal statute, and the rules and regulations of the Commission promulgated thereunder, all as the same shall be in effect from time to time.
“Warrant” shall have the meaning set forth in the introduction hereto.
“Warrant Office” shall have the meaning set forth in Section 3.1.
“Warrant Shares” shall mean the Common Shares into which this Warrant may be exercised.
1.2 Accounting Terms and Determinations. Except as otherwise expressly provided herein, all accounting terms used herein shall be interpreted, and all financial statements and certificates and reports as to financial matters required to be delivered to the Holder hereunder shall be prepared, in accordance with accounting principles generally accepted in the United States (“GAAP”). All calculations made for the purposes of determining compliance with the terms of this Warrant shall (except as otherwise expressly provided herein) be made by application of GAAP.
1.3 Rules of Construction. The title of and the section and paragraph headings in this Warrant are for convenience of reference only and shall not govern or affect the interpretation of any of the terms or provisions of this Warrant. The use herein of the masculine, feminine or neuter forms shall also denote the other forms, as in each case the context may require. Where specific language is used to clarify by example a general statement contained herein, such specific language shall not be deemed to modify, limit or restrict in any manner the construction of the general statement to which it relates. The language used in this Warrant has been chosen by the parties to express their mutual intent, and no rule of strict construction shall be applied against any party. In the case of this Warrant, (a) the meanings of defined terms are equally applicable to the singular and plural forms of the defined terms; (b) Annex, Exhibit, Schedule and Section references are to this Warrant unless otherwise specified; (c) the term “including” is not limiting and means “including but not limited to”; (d) in the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including” the words “to” and “until” each mean “to but excluding,” and the word “through” means “to and including”; (e) unless otherwise expressly provided in this Warrant, (i) references to agreements and other contractual instruments shall be deemed to include all subsequent amendments and other modifications thereto, but only to the extent such amendments and other modifications are not prohibited by the terms of the Warrant, and (ii) references to any statute or regulation shall be construed as including all statutory and regulatory provisions amending, replacing, supplementing or interpreting such statute or regulation; and (f) this Warrant may use several different limitations, tests or measurements to regulate the same or similar matters, all of which are cumulative and each shall be performed in accordance with its terms.
Exercise of Warrants
2.1 Method of Exercise.
(a) This Warrant may be exercised in whole or in part by the Holder hereof at any time on or after the date hereof, and from time to time, before 5:00 p.m., Houston, Texas time, on the Expiration Date. To exercise this Warrant, the Holder hereof shall deliver to the Company, at the Warrant Office designated herein, (i) a written notice in the form of the Subscription Notice attached as Exhibit A hereto, stating therein the election of such Holder to exercise this Warrant in the manner provided in the Subscription Notice, (ii) payment in full of the Exercise Price as provided in Section 2.1(b), and (iii) this Warrant. This Warrant shall be deemed to be exercised on the date of receipt by the Company of the Subscription Notice, accompanied by payment for the Warrant Shares and surrender of this Warrant, and such date is referred to herein as the “Exercise Date.” If the Holder exercises this Warrant as set forth herein, then the Company shall, as promptly as practicable and in any event within 5 business days after the Exercise Date, issue and deliver, or cause to be issued and delivered, to such Holder a certificate or certificates for the full number of Warrant Shares set forth in the Subscription Agreement. As permitted by applicable law, the Person in whose name the certificates for Common Shares are to be issued shall be deemed to have become a holder of record of such Common Shares on the Exercise Date and shall be entitled to all of the benefits of such holder on the Exercise Date, including the right to receive dividends and other distributions for which the record date falls on or after the Exercise Date and to exercise voting rights.
(b) The Holder shall pay the Exercise Price for all Warrant Shares purchased hereunder (i) in full in cash or by certified check or wire transfer of immediately available funds, or (ii) by cashless exercise in accordance with Section 2.1(c) below (a “Cashless Exercise”), or (iii) by a combination of any of the foregoing methods.
(c) If the Fair Market Value of one Common Share is greater than the Exercise Price (at the date of calculation as set forth below), in lieu of exercising this Warrant for cash or other consideration referenced in Section 2.1(c)(i), the Holder may make a Cashless Exercise to receive shares equal to the value (as determined below) of this Warrant (or the portion thereof being cancelled) by surrender of this Warrant at the principal office of the Company together with the properly endorsed Subscription Notice in which event the Company shall issue to the Holder a number of Common Shares computed using the following formula:
|Where||X=||the number of Common Shares to be issued to the holder|
|Y=||the number of Common Shares purchasable under the Warrant or, if only a portion of the Warrant is being exercised, the portion of the Warrant being exercised (at the date of such calculation)|
|A=||the average of the closing sale prices of one Common Share for the five (5) trading days immediately prior to (but not including) the Exercise Date|
|B=||Exercise Price (as adjusted to the date of such calculation)|
For purposes of Rule 144 promulgated under the 1933 Act, it is intended, understood and acknowledged that the Warrant Shares issued in a cashless exercise transaction shall be deemed to have been acquired by the Holder, and the holding period for the Warrant Shares shall be deemed to have commenced, on the date this Warrant was originally issued pursuant to the Bridge Loan Agreement.
2.2 Warrant Shares. The maximum number of Common Shares that Holder is entitled to purchase hereunder shall be _________ shares, as may be adjusted, on the terms and conditions set forth herein.
2.3 Expenses and Taxes. The Company shall pay all expenses and taxes (including all documentary, stamp, transfer or other transactional taxes) attributable to the preparation, issuance or delivery of this Warrant and of the Common Shares issuable upon exercise of this Warrant, other than income taxes.
2.4 Reservation of Common Shares. So long as this Warrant remains outstanding, the Company shall reserve, free from preemptive or similar rights, out of its authorized but unissued Common Shares, and solely for the purpose of effecting the exercise of this Warrant, a sufficient number of Common Shares to provide for the exercise of this Warrant.
2.5 Valid Issuance. All Common Shares issued upon exercise of this Warrant will, upon payment of the Exercise Price and issuance by the Company, be duly authorized, validly and legally issued, fully paid and nonassessable and free and clear of all taxes, liens, security interests, charges and other encumbrances or restrictions with respect to the issuance thereof and, without limiting the generality of the foregoing, the Company shall take all actions necessary to ensure such result and shall not take any action which will cause a contrary result.
2.6 Acknowledgment of Rights. At the time of the exercise of this Warrant in accordance with the terms hereof and upon the written request of the Holder hereof, the Company will acknowledge in writing its continuing obligation to afford to such Holder any rights to which such Holder shall continue to be entitled after such exercise in accordance with the provisions of this Warrant; provided, however, that if the Holder hereof shall fail to make any such request, such failure shall not affect the continuing obligation of the Company to afford to such Holder any such rights.
2.7 Adjustment of Number of Shares. To prevent dilution of the rights granted under this Warrant, the Exercise Price and the number of Common Shares purchasable hereunder are subject to adjustment from time to time as follows:
(a) Conversion or Redemption of Common Shares. Should all of the Common Shares be at any time prior to the Expiration Date redeemed, exchanged, substituted or converted into shares or any other security of the Company, then this Warrant shall become immediately exercisable prior to such event for that number of Common Shares equal to the number of Common Shares that would have been received if this Warrant had been exercised in full and the Common Shares received thereupon had been simultaneously converted immediately prior to such event, and the Exercise Price shall immediately be adjusted to equal the quotient obtained by dividing (i) the aggregate Exercise Price of the maximum number of shares of Common Shares for which this Warrant was exercisable immediately prior to such conversion, exchange, substitution or redemption, by (ii) the number of shares of Common Shares for which this Warrant is exercisable immediately after such conversion, exchange, substitution or redemption.
(b) Offer. If at any time while this Warrant, or any portion hereof, is outstanding and unexpired there shall be an offer for all of the Common Shares whether in the form of cash, securities or otherwise, then, as a part of such offer, lawful provision shall be made so that the Holder of this Warrant shall thereafter be entitled to receive upon exercise of this Warrant, during the period specified herein and upon payment of the Exercise Price then in effect, the number of shares or other securities of the offeror that a holder of the Common Shares issuable upon exercise of this Warrant would have been entitled to receive in such offer if this Warrant had been exercised immediately before such offer, all subject to further adjustment as provided in this Section 2.7. The foregoing provisions of this Section 2.7(b) shall similarly apply to successive offers and to the shares that are at the time receivable upon the exercise of this Warrant. If the per-share consideration payable to the Holder hereof for shares in connection with any such offer is in a form other than cash or marketable securities, then the value of such consideration shall be determined in good faith by the Company’s Board of Directors. In all events, appropriate adjustment (as determined in good faith by the Company’s Board of Directors) shall be made in the application of the provisions of this Warrant with respect to the rights and interests of the Holder after the transaction, to the end that the provisions of this Warrant shall be applicable after that event, as near as reasonably may be, in relation to any shares or other property deliverable after that event upon exercise of this Warrant.
(c) Reclassification. If the Company, at any time while this Warrant, or any portion hereof, remains outstanding and unexpired by reclassification of securities or otherwise, shall change any of the securities as to which purchase rights under this Warrant exist into the same or a different number of securities of any other class or classes, this Warrant shall thereafter represent the right to acquire such number and kind of securities as would have been issuable as the result of such change with respect to the securities that were subject to the purchase rights under this Warrant immediately prior to such reclassification or other change and the Exercise Price therefor shall be appropriately adjusted, all subject to further adjustment as provided in this Section 2.7. No adjustment shall be made pursuant to this Section 2.7(c), upon any conversion, exchange, substitution or redemption of the Common Shares that is the subject of Section 2.7(a).
(d) Split, Subdivision or Combination of Shares. If the Company at any time while this Warrant, or any portion hereof, remains outstanding and unexpired shall split, subdivide or consolidate the securities as to which purchase rights under this Warrant exist, into a different number of securities of the same class, the Exercise Price for such securities shall be proportionately decreased in the case of a split or subdivision or proportionately increased in the case of a combination and the number of Common Shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of all Common Shares issuable upon exercise of this Warrant shall remain unchanged.
(e) Adjustments for Dividends in Shares or Other Securities or Property. If while this Warrant remains outstanding and unexpired, the holders of the securities as to which purchase rights under this Warrant exist at the time shall have received, or, on or after the record date fixed for the determination of eligible shareholders, shall have become entitled to receive, without payment therefor, other or additional shares or other securities or property (other than cash) of the Company by way of dividend, then and in each case, this Warrant shall represent the right to acquire, in addition to the number of shares of the security receivable upon exercise of this Warrant, and without payment of any additional consideration therefor, the amount of such other or additional shares or other securities or property (other than cash) of the Company that such holder would hold on the date of such exercise had it been the holder of record of the security receivable upon exercise of this Warrant on the date hereof and had thereafter, during the period from the date hereof to and including the date of such exercise, retained such shares and/or all other additional shares available by it as aforesaid during such period, giving effect to all adjustments called for during such period by the provisions of this Section 2.7.
(f) Other Dilutive Events. In case any event shall occur as to which the provisions of this Section 2.7 are not strictly applicable, but the failure to make any adjustment would not fairly protect the purchase rights presented by the Warrants in accordance with the essential intent and principles of this Section 2.7, then, in each such case, the Company shall make a good faith adjustment to the Exercise Price and the number of Common Shares in accordance with the intent of this Section 2.7 and, upon the written request of the Holder, shall appoint an independent financial expert, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles of this Section 2.7.
(g) Certificate as to Adjustments. Upon the occurrence of each adjustment or readjustment pursuant to this Section 2.7, the Company at its expense shall promptly compute such adjustment or readjustment in accordance with the terms hereof and furnish to each Holder of this Warrant a certificate setting forth such adjustment or readjustment and showing in detail the facts upon which such adjustment or readjustment is based. The Company shall, upon the written request, at any time, of any such Holder, furnish or cause to be furnished to such Holder a like certificate setting forth: (i) such adjustments and readjustments, (ii) the Exercise Price at the time in effect, and (iii) the number of shares and the amount, if any, of other property that at the time would be received upon the exercise of the Warrant.
(h) No Impairment. The Company will not, by any voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Company, but will at all times in good faith assist in the carrying out of all the provisions of this Section 2.7 and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holder of this Warrant against impairment.
2.8 No Fractional Common Shares. The Company shall not be required to issue any fractional Common Share on the exercise of this Warrant. The number of full Common Shares which shall be issuable upon such exercise shall be computed on the basis of the aggregate number of whole Common Shares purchasable on exercise of this Warrant so presented. If any fraction of a Common Shares would, except for the provisions of this Section 2.8, be issuable on the exercise of this Warrant, the Company shall round up the total number of Common Shares purchasable hereunder to the next whole Common Share.
3.1 Warrant Office. The Company shall maintain an office for certain purposes specified herein (the “Warrant Office”), which office shall be the Company’s principal executive offices, and may subsequently be such other office of the Company or of any transfer agent of the Common Shares as to which written notice has previously been given to the Holder. The Company shall maintain, at the Warrant Office, a register for this Warrant in which the Company shall record (a) the name and address of the Person in whose name this Warrant has been issued (as well as the name and address of each permitted assignee of the rights of the registered owner hereof) and (b) the number of Warrant Shares issuable upon the exercise or exchange hereof.
3.2 Ownership of Warrant. The Company may deem and treat the Person in whose name this Warrant is registered as the Holder and owner hereof until provided with written notice to the contrary.
3.3 Restrictions on Transfer of Warrant.
(a) The Warrant and the Warrant Shares are not transferable directly or indirectly, in whole or in part, except in the case of any transfer that is in compliance with applicable U.S. federal and state securities laws, including the Securities Act. Any transfers of the Warrant will be without charge to the Holder except that any securities transfer taxes due on transfer of the Warrant will be paid by Holder. Restrictive legends setting forth the above restrictions on transfer will be set forth on any Warrant Shares issued on exercise of the Warrant.
(b) Subject to Section 3.3(a), the Holder may assign, convey or transfer this Warrant and any rights hereunder without the prior written consent of the Company to any person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with the Holder or the parent of the Holder, or a successor in interest to the Holder which acquires the voting control of the Holder or all or substantially all of the Holder’s assets. The rights and obligations of the Company and the Holder under this Warrant shall be binding upon and benefit their respective permitted successors, assigns, heirs, administrators and transferees.
4.1 Entire Agreement. This Warrant contains the entire agreement between the Holder hereof and the Company with respect to the Warrant Shares purchasable upon exercise hereof and the related transactions and supersede all prior arrangements or understandings with respect thereto.
4.2 Governing Law. This Warrant shall be a contract made under and governed by the internal laws of the State of Texas applicable to contracts made and to be performed entirely within such state, without regard to conflict of law principles.
4.3 Waiver and Amendment. Any term or provision of this Warrant may be waived at any time by the party which is entitled to the benefits thereof. Any term or provision of this Warrant may be amended or supplemented at any time by agreement of the Holder hereof and the Company. Any waiver of any term or condition, or any amendment or supplementation, of this Warrant shall be in writing. A waiver of any breach or failure to enforce any of the terms or conditions of this Warrant shall not in any way affect, limit or waive a party’s rights hereunder at any time to enforce strict compliance thereafter with every term or condition of this Warrant.
4.4 Severability. In the event that any one or more of the provisions contained in this Warrant shall be determined to be invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in any other respect and the remaining provisions of this Warrant shall not, at the election of the party for whom the benefit of the provision exists, be in any way impaired.
4.5 Copy of Warrants. A copy of this Warrant shall be filed among the records of the Company.
4.6 Notice. Any notice or other document required or permitted to be given or delivered to the Holder hereof shall be in writing and delivered at, or sent by certified or registered mail or by facsimile to such Holder at, the last address shown on the books of the Company maintained at the Warrant Office for the registration of this Warrant or at any more recent address of which the Holder hereof shall have notified the Company in writing. Any notice or other document required or permitted to be given or delivered to the Company, other than such notice or documents required to be delivered to the Warrant Office, shall be delivered at, or sent by certified or registered mail or by facsimile to, the Warrant Office.
4.7 Limitation of Liability; Rights as a Shareholder. No provision hereof, in the absence of affirmative action by the Holder hereof to purchase Common Shares, and no mere enumeration herein of the rights or privileges of the Holder hereof, shall give rise to any liability of such Holder for the purchase price of any Common Shares or as a shareholder of the Company, whether such liability is asserted by the Company or by creditors of the Company. Except as otherwise provided herein, this Warrant does not confer upon the Holder any right to vote or consent to or to receive notice as a shareholder of the Company, in respect of any matters whatsoever.
4.8 Exchange, Loss, Destruction, etc. of Warrant. Upon receipt of evidence reasonably satisfactory to the Company of the loss, theft, mutilation or destruction of this Warrant, and in the case of any such loss, theft or destruction upon delivery of an appropriate affidavit in such form as shall be reasonably satisfactory to the Company and include reasonable indemnification of the Company, or in the event of such mutilation upon surrender and cancellation of this Warrant, the Company will make and deliver a new Warrant of like tenor, in lieu of such lost, stolen, destroyed or mutilated Warrant. Any Warrant issued under the provisions of this Section 4.8 in lieu of any Warrant alleged to be lost, destroyed or stolen, or in lieu of any mutilated Warrant, shall constitute an original contractual obligation on the part of the Company. This Warrant shall be promptly canceled by the Company upon the surrender hereof in connection with any exchange or replacement. The Company shall pay all taxes (other than securities transfer taxes or income taxes) and all other expenses and charges payable in connection with the preparation, execution and delivery of Warrants pursuant to this Section.
4.9 Piggyback Registration Rights.
(a) The Company covenants and agrees with any holder of the Registrable Securities that if, at any time within the period commencing on the date hereof and ending on the Expiration Date, it proposes to file a registration statement with respect to any class of equity or equity-related security (other than in connection with an offering to the Company’s employees or in connection with an acquisition, merger or similar transaction) under the Securities Act in a primary registration on behalf of the Company and/or in a secondary registration on behalf of holders of such securities and the registration form to be used may be used for registration of the Registrable Securities, the Company will give prompt written notice (which, in the case of a registration statement pursuant to the exercise of demand registration rights shall be within ten (10) business days after the Company’s receipt of notice of such exercise and, in any event, shall be at least 30 days prior to such filing) to the holders of Registrable Securities at the addresses appearing on the records of the Company of its intention to file a registration statement and will offer to include in such registration statement all, but not less than 20% of the Registrable Securities, subject to paragraphs (i) and (ii) of this Section 4.9(a), such number of Registrable Securities with respect to which the Company has received written requests for inclusion therein within ten (10) days after the giving of notice by the Company. All registrations requested pursuant to this Section 4.9(a) are referred to herein as “Piggyback Registrations”. All Piggyback Registrations pursuant to this Section 4.9 will be made solely at the Company’s expense. This Section is not applicable to a registration statement filed by the Company on Forms S-4 or S-8 or any successor forms.
(i) Priority on Primary Registrations. If a Piggyback Registration includes an underwritten primary registration on behalf of the Company and the underwriter(s) for such offering determines in good faith and advises the Company in writing that in its/their opinion the number of Registrable Securities requested to be included in such registration exceeds the number that can be sold in such offering without materially adversely affecting the distribution of such securities by the Company, the Company will include in such registration (A) first, the securities that the Company proposes to sell and (B) second, the Registrable Securities requested to be included in such registration, apportioned pro rata among the holders of the Registrable Securities and holders of other securities requesting registration.
(ii) Priority on Secondary Registrations. If a Piggyback Registration consists only of an underwritten secondary registration on behalf of holders of securities of the Company, and the underwriter(s) for such offering advises the Company in writing that in its/their opinion the number of Registrable Securities requested to be included in such registration exceeds the number which can be sold in such offering without materially adversely affecting the distribution of such securities, the Company will include in such registration (A) first, the securities requested to be included therein by the holders requesting such registration, and (B) second, the Registrable Securities requested to be included in such registration and securities of holder of other securities requested to be included in such registration statement, pro rata among all such holders on the basis of the number of shares requested to be included by each such holder, provided, however, the Company will use its best efforts to include not less than 20% of the Registrable Securities.
Notwithstanding the foregoing, if any such underwriter shall determine in good faith and advise the Company in writing that the distribution of the Registrable Securities requested to be included in the registration concurrently with the securities being registered by the Company would materially adversely affect the distribution of such securities by the Company, then the holders of such Registrable Securities shall delay their offering and sale for such period ending on the earliest of (1) 90 days following the effective date of the Company’s registration statement, (2) the day upon which the underwriting syndicate, if any, for such offering shall have been disbanded or, (3) such date as the Company, managing underwriter and holders of Registrable Securities shall otherwise agree. In the event of such delay, the Company shall file such supplements, post-effective amendments and take any such other steps as may be necessary to permit such holders to make their proposed offering and sale for a period of 120 days immediately following the end of any such period of delay. If any party disapproves the terms of any such underwriting, it may elect to withdraw therefrom by written notice to the Company, the underwriter, and the holder. Notwithstanding the foregoing, the Company shall not be required to file a registration statement to include shares pursuant to this Section 4.9 if independent counsel, reasonably satisfactory to the Company, renders an opinion to the Company that the Registrable Securities proposed to be disposed of may be transferred pursuant to the provisions of Rule 144 under the Securities Act or otherwise without registration under the Securities Act.
(b) In connection with the registration of Registrable Securities hereunder, the Company agrees to (i) bear the expenses of any registration; provided, however, that in no event shall the Company be obligated to pay (A) any fees and disbursements of special counsel for holders of Registrable Securities, (B) any underwriters’ discount or commission in respect of such Registrable Securities, and (C) any stock transfer taxes attributable to the sale of the Registrable Securities; (ii) use its best efforts to register or qualify the Registrable Securities for offer or sale under state securities or Blue Sky laws of such jurisdictions in which such holders shall reasonably request, provided, however, that no qualification shall be required in any jurisdiction where, as a result thereof, the Company would be subject to service of general process or to taxation as a foreign corporation doing business in such jurisdiction to which it is not then subject; and (iii) enter into a cross-indemnity agreement, in customary form, with each underwriter, if any, and each holder of securities included in such registration statement.
(c) The Company’s obligations under this Section 4.9 shall be conditioned upon a timely receipt by the Company in writing of: (i) information as to the terms of such public offering furnished by or on behalf of each holder of Registrable Securities intending to make a public offering of his, her or its Registrable Securities, and (ii) such other information as the Company may reasonably require from such holders, or any underwriter for any of them, for inclusion in such registration statement.
[The Remainder of this Page Intentionally Left Blank]
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed in its name.
Dated: September 18, 2019.
|HOUSTON AMERICAN ENERGY CORP.|
THIS IS A SIGNATURE PAGE TO THE WARRANT
Date: _______________, 20___
Houston American Energy Corp.
801 Travis St., Suite 1425
Houston, TX 77002
Attention: James Schoonover
Ladies and Gentlemen:
The undersigned (the “Purchaser”) hereby elects to exercise this Warrant issued to it by Houston American Energy Corp. (the “Company”) and dated as of September 18, 2019 (the “Warrant”) and to purchase thereunder _____________ shares of Common Stock of the Company (the “Common Shares”) at a purchase price of $0.197 per Share, or an aggregate purchase price of $__________ (the “Purchase Price”).
The Purchase hereby elects to pay the Purchase Price by means of:
|_____||cash, certified check or wire transfer pursuant to Section 2.1(b)(i); or|
|_____||Cashless Exercise pursuant to Section 2.1(b)(ii); or|
|_____||cash, certified check or wire transfer in the aggregate amount of $__________ and the balance by means of Cashless Exercise.|
Please issue the Common Shares for delivery as follows:
In connection with the exercise of the Warrant, the Purchaser hereby represents, warrants, covenants and agrees as follows:
(a) Accredited Investor. The Purchaser is an “accredited investor” within the meaning of Rule 501 of Regulation D under the Securities Act of 1933, as amended (together with the rules and regulations promulgated by the Securities and Exchange Commission thereunder, the “Securities Act”).
(a) Investment Experience. The Purchaser has sufficient knowledge and experience in business, financial and investment matters so as to be able to evaluate the risks and merits of its investment in the Company and it is able financially to bear the risks thereof.
(b) Company Information; No General Solicitation. The Purchaser had access to such information regarding the Company and its affairs as is necessary to enable it to evaluate the merits and risks of an investment in restricted securities of the Company and has had a reasonable opportunity to ask questions and receive answers and documents concerning the Company and its current and proposed operations, financial condition, business, business plans and prospects. The Purchaser has not been offered any of the Common Shares by any means of general solicitation or advertising.
(c) Acquisition for Own Account. The Common Shares being issued to and acquired by the Purchaser are being acquired by it for its own account for the purpose of investment and not with a view to, or for resale in connection with, any distribution thereof. The Purchaser understands that it must bear the economic risk of such investment indefinitely, and hold the Common Shares indefinitely, unless a subsequent disposition of the Common Shares is registered pursuant to the Securities Act, or an exemption from such registration is available. The Purchaser further understands that there is no assurance that any exemption from the Securities Act will be available or, if available, that such exemption will allow it to dispose of or otherwise transfer any or all of the Common Shares under the circumstances, in the amounts or at the times the Purchaser might propose.
(d) Restricted Securities.
(i) The Purchaser understands and acknowledges that none of the offer, issuance or sale of the Common Shares has been registered under the Securities Act in reliance on an exemption from the registration requirements of the Securities Act.
(ii) The Purchaser understands and acknowledges that the Common Shares may be subject to additional restrictions on transfer under state and/or federal securities laws.
Pursuant to the terms of the Warrant, the undersigned has delivered the Purchase Price herewith in full pursuant to the provisions thereof.
|Very truly yours,|
Houston American Energy Announces Funding and Completion of Acquisition of Acreage In New San Andres Drilling Program
Houston, TX – September 20, 2019 – Houston American Energy Corp. (NYSE American: HUSA) today announced that it has secured funding to complete its previously announced agreement to acquire a 20% interest in a 5,871 gross acre block in the San Andres formation located in the Northern Shelf of the Permian Basin. With the funding and completion of the acquisition, the company has increased its gross acreage position in the Permian Basin while also securing participation rights in an area of mutual interest, including the acquired acreage position, covering 20,367 gross acres.
Funding was provided in the form of a loan, with warrants, from the company’s Chief Executive Officer and a principal shareholder.
Jim Schoonover, CEO of Houston American Energy, stated, “As evidenced by my commitment and that of our principal shareholder to provide financing for this acquisition, we are excited about the potential of this new acreage position. Based on conversations with the operator, we expect drilling of an initial well on the acreage to commence by year-end 2019.”
About Houston American Energy Corp.
Based in Houston, Texas, Houston American Energy Corp. is a publicly-traded independent energy company with interests in oil and natural gas wells, minerals and prospects. The Company’s business strategy includes a property mix of producing and non-producing assets with a focus on the Permian Basin in Texas, Louisiana and Colombia.
The information in this release includes certain forward-looking statements that are based on assumptions that in the future may prove not to have been accurate, including statements regarding the timing of drilling an initial well and the ultimate results of drilling operations on the acquired acreage. The timing and results of drilling operations and our ability to grow production, revenues, reserves and shareholder value are subject to numerous risk factors, including our ability to finance our share of drilling and development costs, potential fluctuations in energy prices and third party costs, rates of decline of production, and ultimate performance of wells, among other risks described in our reports filed with the Securities and Exchange Commission.
For additional information, view the company’s website at www.houstonamerican.com or contact Houston American Energy Corp. at (713) 222-6966.