Exhibit 4.9
THIS
INSTRUMENT AND THE RIGHTS AND OBLIGATIONS EVIDENCED HEREBY ARE
SUBORDINATE IN THE MANNER AND TO THE EXTENT SET FORTH IN THAT
CERTAIN SUBORDINATION AND INTERCREDITOR AGREEMENT (AS THE SAME MAY
BE AMENDED OR OTHERWISE MODIFIED FROM TIME TO TIME PURSUANT TO THE
TERMS THEREOF, THE “SUBORDINATION AGREEMENT”)
DATED AS OF JANUARY 30, 2007, AMONG STORM CAT ENERGY CORPORATION, A
BRITISH COLUMBIA CORPORATION (“BORROWER”), STORM CAT
ENERGY (USA) CORPORATION, A COLORADO CORPORATION “STORM CAT
(USA)”), JPMORGAN CHASE BANK, N.A., AS GLOBAL ADMINISTRATIVE
AGENT (THE “GLOBAL AGENT”), JPMORGAN CHASE BANK, N.A.,
TORONTO BRANCH, AS CANADIAN ADMINISTRATIVE AGENT (THE
“CANADIAN AGENT”), ANY OTHER PERSON OR ENTITY PARTY
THERETO AS A “SUBORDINATED CREDITOR” TO THE
INDEBTEDNESS (INCLUDING INTEREST) OWED BY THE COMPANIES TO THE
AGENT AND THE SENIOR LENDERS (AS DEFINED IN THE SUBORDINATION
AGREEMENT) PURSUANT TO THE SENIOR DEBT DOCUMENTS (AS DEFINED IN THE
SUBORDINATION AGREEMENT), INCLUDING WITHOUT LIMITATION, PURSUANT TO
THAT (I) CREDIT AGREEMENT, DATED AS OF JULY 28, 2006, AS AMENDED BY
THE FIRST AMENDMENT TO CREDIT AGREEMENT DATED AS OF AUGUST 29,
2006, AMONG BORROWER, STORM CAT (USA), VARIOUS FINANCIAL
INSTITUTIONS PARTY THERETO AS LENDERS AND THE GLOBAL AGENT, AND
(II) CREDIT AGREEMENT, DATED AS OF JULY 28, 2006, AMONG BORROWER,
VARIOUS FINANCIAL INSTITUTIONS PARTY THERETO AS LENDERS, THE
CANADIAN AGENT, AND THE GLOBAL AGENT, AS SUCH CREDIT AGREEMENTS MAY
BE AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME
TO TIME AS PERMITTED UNDER THE SUBORDINATION AGREEMENT, AND
TO INDEBTEDNESS REFINANCING THE INDEBTEDNESS UNDER THAT AGREEMENT
AS PERMITTED BY THE SUBORDINATION AGREEMENT; AND EACH HOLDER
OF THIS INSTRUMENT, BY ITS ACCEPTANCE HEREOF, IRREVOCABLY AGREES TO
BE BOUND BY THE PROVISIONS OF THE SUBORDINATION
AGREEMENT.
THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”),
AND MAY NOT BE TRANSFERRED UNLESS (I) SUCH SECURITIES HAVE BEEN
REGISTERED FOR SALE PURSUANT TO THE 1933 ACT, OR (II) THE COMPANY
HAS RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO IT THAT SUCH
TRANSFER MAY LAWFULLY BE MADE WITHOUT REGISTRATION UNDER RULE 144
UNDER THE 1933 ACT OR QUALIFICATION UNDER APPLICABLE STATE
SECURITIES LAWS.
IN
CANADA, UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER
OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE
[NOTE: INSERT THE DATE THAT IS 4 MONTHS PLUS ONE (1) DAY AFTER
ISSUANCE].
SERIES B SUBORDINATED CONVERTIBLE NOTE DUE
MARCH 31, 2012
FOR
VALUE RECEIVED, the undersigned STORM CAT ENERGY CORPORATION
, a company incorporated under the laws of the Province of British
Columbia, Canada (together with its successors and assigns, (the
“ Company ”), hereby promises to pay to
[ ],
or its registered assigns (the “ Holder ”), the
original principal sum of
[ ]
AND NO/100 US DOLLARS
(US$ ),
with interest thereon and Additional Amounts, if any, on the terms
and conditions set forth in the Purchase Agreement (as defined
herein).
Payments of principal
of, interest on and any premium with respect to this Series B
Subordinated Convertible Note are to be made in accordance with
Section 3 of the Purchase Agreement (as defined below) and
in lawful money of the United States of America by check mailed and
addressed to the registered Holder hereof by certified or bank
cashier’s check or wire transfer of immediately available
funds, at such address or to such account as such Purchaser
specifies in writing to the Company at least f
