SECURITIES PURCHASE
AGREEMENT
(Signature
Page)
American
Petro-Hunter Inc.
Pacific Centre,
Suite 3000, P.O. Box 10024
700 West
Georgia Street, Vancouver, BC
Canada V7Y
1A1
Ladies &
Gentlemen:
The undersigned (the “Investor”),
hereby confirms its agreement with you as follows:
1.
This Securities Purchase Agreement,
including the Terms and Conditions set forth in Annex I (the
"Terms and Conditions"), the Risk Factors set forth in Annex
II (the "Risk Factors"), and exhibits, which are all attached
hereto and incorporated herein by reference as if fully set forth
herein (the “Agreement”), is made as of the date set
forth below between American Petro-Hunter Inc., a Nevada
corporation (the “Company”), and the
Investor.
2.
The Company has authorized the sale
and issuance of up to 800,000 Units of the Company securities to
certain investors in a private placement (the
“Offering”). Each Unit consists of 1 share of common
stock of the Company, par value $0.001 per share of the Company
(the "Shares") and warrants in the form attached hereto as Exhibit
B (the “Warrants”) exercisable to purchase 1 share of
common stock of the Company at an exercise price of $0.15 per share
and in accordance with the terms set forth in the
Warrants.
3.
Pursuant to the Terms and
Conditions, the Company and the Investor agree that the Investor
will purchase from the Company and the Company will issue and sell
to the Investor _____________ Units, for a purchase price of $0.05
per Unit, for an aggregate purchase price of $____________,
consisting of _____________ Shares and _________ Warrants to
purchase shares of common stock of the Company. Unless otherwise
requested by the Investor, certificates representing the Common
Stock purchased by the Investor will be registered in the
Investor’s name and address as set forth below.
4.
The Investor represents that,
except as set forth below, (a) it has had no position, office or
other material relationship within the past three years with the
Company or persons known to it to be affiliates of the Company, (b)
neither it, nor any group of which it is a member or to which it is
related, beneficially owns (including the right to acquire or vote)
any securities of the Company and (c) it has no direct or indirect
affiliation or association with any NASD member as of the date
hereof. Exceptions:
__________________________________________________________________________________________________________________________________________
(If no exceptions, write
“none.” If left blank, response will be deemed to be
“none.”)
Please confirm that the foregoing correctly sets
forth the agreement between us by signing in the space provided
below for that purpose. By executing this Agreement, you
acknowledge that the Company may use the information in paragraph 4
above and the name and address information below in preparation of
the Registration Statement (as defined in Annex 1).
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Date: ______,
2007
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Investor:
_________________________________
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__________________
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By:
_________________________________
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Print
Name:_________________________________
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________
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Title:_________________________________
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Address:
_________________________________
________________________________________
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Tax ID No.:
_________________________________
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Contact name:
_________________________________
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Telephone:
_________________________________
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AGREED AND
ACCEPTED :
AMERICAN
PETRO-HUNTER INC.
By:
Patrick
McGowan, President
ANNEX
I
TERMS
AND CONDITIONS FOR PURCHASE OF SHARES
Investment in the Company involves a high degree
of risk. Each Investor should carefully consider the risk factors
set forth in Annex II in addition to the other information
set forth in this Annex I before purchasing shares of the
Company's Common Stock.
1. Authorization and Sale of the Shares
. Subject to these Terms and
Conditions, the Company has authorized the sale of up to 800,000
units of the Company securities to certain investors in a private
placement (the “Offering”). Each unit consists of 1
share of common stock of the Company, par value $0.001 per share of
the Company (the “Shares”), and warrants (the
“Warrants”) exercisable to purchase 1 share of common
stock of the Company at an exercise price of $0.15 per share and in
accordance with the terms set forth in the Warrants
(“Shares” and “Warrant,” collectively, a
“Unit”). The Company reserves the right to increase or
decrease this number.
2. Agreement to Sell and Purchase the
Units .
2.1At each Closing (as defined in Section 3 of
this Annex I ), the Company will sell to the Investor, and
the Investor will purchase from the Company, upon the terms and
conditions hereinafter set forth, the number of Units, if
applicable, set forth in Section 3 of the Signature Page to the
Securities Purchase Agreement at the purchase price set forth
thereon.
2.2The Company may enter into the same form of
Securities Purchase Agreement ("Agreements"), including these Terms
and Conditions, with certain other investors (the “Other
Investors”) and expects to complete sales of Units to them.
The Investor and the Other Investors are hereinafter sometimes
collectively referred to as the “Investors.”
3. Delivery of the Shares at Closing
. The completion of the purchase and
sale of the Units (the “Closing”) shall occur at the
offices of the Company’s counsel upon receipt of cleared
funds and fully executed documents for the purchase of the Units on
each date set by the Company, provided that a closing shall occur
no later than March 31, 2007, which date may be extended by the
Company at the sole discretion of the Company for a period of
thirty (30) days. Within seven (7) days after each Closing, the
Company shall deliver to the Investor one or more stock
certificates representing the number of Shares and a Warrant
representing the number of shares of common stock as set forth in
Section 3 of the Signature Page to the Securities Purchase
Agreement, each such certificate, certificates or warrant to be
registered in the name of the Investor, as set forth in Section 3
of the Signature Page to the Securities Purchase
Agreement.
The Company’s obligation to issue the
Shares and Warrant to the Investor shall be subject to the
following conditions, any one or more of which may be waived by the
Company: (a) receipt by the Company of a certified or official bank
check or wire transfer of funds in the full amount of the purchase
price for the Units being purchased hereunder as set forth in
Section 3 of Signature Page to the Securities Purchase Agreement;
and (b) the accuracy of the representations and warranties made by
the Investors and the fulfillment of those undertakings of the
Investors to be fulfilled prior to the Closing.
The Investor’s obligation to purchase the
Units shall be subject to the following conditions, any one or more
of which may be waived by the Investor: (1) the representations and
warranties of the Company set forth herein shall be true and
correct as of the Closing Date in all material respects and (2) the
Investor shall have received such documents as such Investor shall
reasonably have requested in connection with its due
diligence.
4. Representations, Warranties and Covenants of the
Company . The Company
hereby represents and warrants to, and covenants with, the
Investor, as follows:
4.1 Organization . The Company is duly
organized and validly existing in good standing under the laws of
the jurisdiction of its organization. The Company has full power
and authority to own, operate and occupy its properties and to
conduct its business as presently contemplated and is registered or
qualified to do business and in good standing in each jurisdiction
in which the nature of the business conducted by it or the location
of the properties owned or leased by it requires such qualification
and where the failure to be so qualified would have a material
adverse effect upon the condition (financial or otherwise),
earnings, business or business prospects, properties or operations
of the Company (a “Material Adverse Effect”), and no
proceeding has been instituted in any such jurisdiction, revoking,
limiting or curtailing, or seeking to revoke, limit or curtail,
such power and authority or qualification.
4.2 Due Authorization and Valid
Issuance . The Company has all requisite power and authority to
execute, deliver and perform its obligations under the Agreement,
and the Agreement has been duly authorized and validly executed and
delivered by the Company and constitute legal, valid and binding
agreement of the Company enforceable against the Company in
accordance with their terms, except as rights to indemnity and
contribution may be limited by state or federal securities laws or
the public policy underlying such laws, except as enforceability
may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting
creditors’ and contracting parties’ rights generally
and except as enforceability may be subject to general principles
of equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law). No further approval or
authorization of any stockholder, the Board of Directors of the
Company or others is required for the issuance and sale of the
Units. The Shares and the shares of Common Stock of the Company
issuable upon exercise of the Warrants (the “Warrant
Shares”) being purchased by the Investor hereunder will, upon
issuance and payment therefore pursuant to the terms hereof, be
duly authorized, validly issued, fully-paid and
nonassessable.
4.3 Non-Contravention . The execution and
delivery of the Agreement, the issuance and sale of the Units under
the Agreement, the fulfillment of the terms of the Agreement and
the consummation of the transactions contemplated thereby will not
(A) conflict with or constitute a violation of, or default under,
(i) any material bond, debenture, note or other evidence of
indebtedness, lease, contract, indenture, mortgage, deed of trust,
loan agreement, joint venture or other agreement or instrument to
which the Company is a party or by which it or its properties are
bound, (ii) the charter, by-laws or other organizational documents
of the Company, or (iii) any law, administrative regulation,
ordinance or order of any court or governmental agency, arbitration
panel or authority applicable to the Company or its properties,
except in the case of clauses (i) and (iii) for any such conflicts,
violations or defaults which are not reasonably likely to have a
Material Adverse Effect or (B) result in the creation or imposition
of any lien, encumbrance, claim, security interest or restriction
whatsoever upon any of the material properties or assets of the
Company or an acceleration of indebtedness pursuant to any
obligation, agreement or condition contained in any material bond,
debenture, note or any other evidence of indebtedness or any
material indenture, mortgage, deed of trust or any other agreement
or instrument to which the Company is a party or by which any of
them is bound or to which any of the material property or assets of
the Company is subject.
4.4 Capitalization . As of November 9,
2006 there were 8,265,019 shares of the Company's common stock
issued and outstanding. The Company has no other securities
outstanding and the Company has not issued any capital stock since
that date. Except as set forth herein or contemplated by documents
filed by the Company with the Securities and Exchange Commission
(the "SEC") under the Securities Exchange Act of 1934 (the
"Exchange Act"), since the end of its most recently completed
fiscal year through the date hereof (the Exchange Act Documents),
there are no other outstanding rights (including, without
limitation, preemptive rights), warrants or options to acquire, or
instruments convertible into or exchangeable for, any unissued
shares of capital stock or other equity interest in the Company or
any contract, commitment, agreement, understanding or arrangement
of any kind to which the Company is a party or of which the Company
has knowledge and relating to the issuance or sale of any capital
stock of the Company, any such convertible or exchangeable
securities or any such rights, warrants or options.
4.5 Legal Proceedings . There is no
material legal or governmental proceeding pending or, to the
knowledge of the Company, threatened to which the Company is or may
be a party or of which the business or property of the Company is
subject that is not disclosed in the Exchange Act
Documents.
4.6 No Violations . The Company is not in
violation of its charter, bylaws, or other organizational document,
or in violation of any law, administrative regulation, ordinance or
order of any court or governmental agency, arbitration panel or
authority applicable to the Company, which violation, individually
or in the aggregate, would be reasonably likely to have a Material
Adverse Effect, or is in default (and there exists no condition
which, with the passage of time or otherwise, would constitute a
default) in any material respect in the performance of any bond,
debenture, note or any other evidence of indebtedness in any
indenture, mortgage, deed of trust or any other material agreement
or instrument to which the Company is a party or by which the
Company is bound or by which the properties of the Company are
bound, which would be reasonably likely to have a Material Adverse
Effect.
5.
Representations, Warranties and
Covenants of the Investor .
5.1 The Investor represents and warrants to, and
covenants with, the Company that: (i) the Investor is an
“accredited investor” as defined in Rule 501 of
Regulation D under the Securities Act and the Investor is also
knowledgeable, sophisticated and experienced in making, and is
qualified to make decisions with respect to investments in shares
presenting an investment decision like that involved in the
purchase of the Units, including investments in securities issued
by the Company and investments in comparable companies, and has
requested, received, reviewed and considered all information it
deemed relevant in making an informed decision to purchase the
Units; (ii) ) the Investor has carefully read and fully understands
the risks involved with an investment in the Company including,
without limitation, the risks identified on Annex II,
attached hereto, (iii) the Investor is acquiring the number of
Units set forth in Section 3 of the Signature Page to the
Securities Purchase Agreement in the ordinary course of its
business and for its own account for investment only and with no
present intention of distributing any of such Units or any
arrangement or understanding with any other persons regarding the
distribution of such Units; (iv) the Investor will not, directly or
indirectly, offer, sell, pledge, transfer or otherwise dispose of
(or solicit any offers to buy, purchase or otherwise acquire or
take a pledge of) any of the Units except in compliance with the
Securities Act, applicable state securities laws and the respective
rules and regulations promulgated thereunder; (v) all of the
representations made by the Investor are true, correct and complete
as of the date hereof and will be true, correct and complete as of
the Closing Date; (vi) the Investor will notify the Company
immediately of any change in any of such information until such
time as the Investor has sold all of its Shares or Warrant Shares
or until the Company is no longer required to keep the Registration
Statement effective; and (vii) the Investor has, in connection with
its decision to purchase the number of Units set forth in Section 3
of the Signature Page to the Securities Purchase Agreement, relied
only upon the Exchange Act Documents and the representations and
warranties of the Company contained herein. The Investor
understands that its acquisition of the Units, Shares and Warrant
Shares has not been registered under the Securities Act or
registered or qualified under any state securities law in reliance
on specific exemptions therefrom, which exemptions may depend upon,
among other things, the bona fide nature of the Investor’s
investment intent as expressed herein. There are no suits, pending
litigation, or claims against the undersigned that could materially
affect the net worth of the Investor.
5.2 The Investor acknowledges that it has had
access to the Exchange Act Documents and has carefully reviewed the
same. The Investor further acknowledges that the Company has made
available to it the opportunity to ask questions of and receive
answers from the Company's officers and directors concerning the
terms and conditions of this Agreement and the business and
financial condition of the Company, and the Investor has received
to its satisfaction, such information about the business and
financial condition of the Company and the terms and conditions of
the Agreement as it has requested. The Investor has carefully
considered the potential risks relating to the Company and a
purchase of the Units, and fully understands that the Units are
speculative investments, which involve a high degree of risk of
loss of the Investor’s entire investment. Among others, the
undersigned has carefully considered each of the risks identified
under the caption “Risk Factors” in the Exchange Act
Documents and Annex II.
5.3 The Investor acknowledges, represents and
agrees that no action has been or will be taken in any jurisdiction
outside the United States by the Company that would permit an
offering of the Units, or possession or distribution of offering
materials in connection with the issuance of the Units, in any
jurisdiction outside the United States where legal action by the
Company for that purpose is required. Each Investor outside the
United States will comply with all applicable laws and regulations
in each foreign jurisdiction in which it purchases, offers, sells
or delivers Units, Shares, Warrants or Warrant Shares or has in its
possession or distributes any offering material, in all cases at
its own expense.
5.4 The Investor hereby covenants with the
Company not to make any sale of the Units, Shares, Warrants or
Warrant Shares without complying with the provisions of this
Agreement and without causing the prospectus delivery requirement
under the Securities Act to be satisfied, and the Investor
acknowledges that the certificates evidencing the Shares will be
imprinted with a legend that prohibits their transfer except in
accordance therewith. The Investor acknowledges that there may
occasionally be times when the Company determines that it must
suspend the use of the Prospectus forming a part of the
Registration Statement, as set forth in Section 6.2(c). The
undersigned is aware that, in such event, the Shares and Warrant
Shares will not be subject to ready liquidation, and that any
Shares and Warrant Shares purchased by the undersigned would have
to be held during such suspension. The overall commitment of the
Investor to investments, which are not readily marketable, is not
excessive in view of the Investor’s net worth and financial
circumstances, and any purchase of the Units will not cause such
commitment to become excessive. The Investor is able to bear the
economic risk of an investment in the Units.
5.5 The Investor further represents and warrants
to, and covenants with, the Company that (i) the Investor has full
right, power, authority and capacity to enter into this Agreement
and to consummate the transactions contemplated hereby and has
taken all necessary action to authorize the execution, delivery and
performance of this Agreement, and (ii) this Agreement constitutes
a valid and binding obligation of the Investor enforceable against
the Investor in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting
creditors’ and contracting parties’ rights generally
and except as enforceability may be subject to general principles
of equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law) and except as the
indemnification agreements of the Investors herein may be legally
unenforceable.
5.6 Investor will not use any of the restricted
Shares or Warrant Shares acquired pursuant to this Agreement to
cover any short position in the Common Stock of the Company if
doing so would be in violation of applicable securities
laws.
5.6 The Investor understands that nothing in the
Exchange Act Documents, this Agreement or any other materials
presented to the Investor in connection with the purchase and sale
of the Units constitutes legal, tax or investment advice. The
Investor has consulted such legal, tax and investment advisors, as
it, in its sole discretion, has deemed necessary or appropriate in
connection with its purchase of the Units.
6. Registration of the Shares and Warrant Shares;
Compliance with the Securities Act .
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6.1
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Registration
Procedures and Other Matters . The Company shall:
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(a) subject to receipt of necessary information
from the Investors after prompt request from the Company to the
Investors to provide such information, prepare within ninety (90)
days and file with the SEC a registration statement on Form SB-2
(the “Registration Statement”) to enable the resale of
the Shares and Warrant Shares by the Investors from time to
time;
(b) use its commercially reasonable efforts,
subject to receipt of necessary information from the Investors
after prompt request from the Company to the Investors to provide
such information, to cause the Registration Statement to become
effective within 90 days after the Registration Statement is filed
by the Company such efforts to include, without limiting the
generality of the foregoing, preparing and filing with the SEC any
financial statements that are required to be filed prior to the
effectiveness of such Registration Statement;
(c) use its commercially reasonable efforts to
prepare and file with the SEC such amendments and supplements to
the Registration Statement and the Prospectus used in connection
therewith as may be necessary to keep the Registration Statement
current, effective and free from any material misstatement or
omission to state a material fact for a period not exceeding, with
respect to each Investor’s Shares and Warrant Shares
purchased hereunder, the earlier of (i) the second anniversary of
the Closing Date, (ii) the date on which the Investor may sell all
Shares and Warrant Shares then held by the Investor without
restriction by the volume limitations of Rule 144(e) of the
Securities Act, or (iii) such time as all Shares and Warrant Shares
purchased by such Investor in this Offering have been sold pursuant
to a registration statement or exemption from
registration;
(d) furnish to the Investor with respect to the
Shares and Warrant Shares registered under the Registration
Statement such number of copies of the Registration Statement,
Prospectuses and Preliminary Prospectuses in conformity with the
requirements of the Securities Act and such other documents as the
Investor may reasonably request, in order to facilitate the public
sale or other disposition of all or any of the Shares by the
Investor; provided, however, that the obligation of the Company to
deliver copies of Prospectuses or Preliminary Prospectuses to the
Investor shall be subject to the receipt by the Company of
reasonable assurances from the Investor that the Investor will
comply with the applicable provisions of the Securities Act and of
such other securities or blue sky laws as may be applicable in
connection with any use of such Prospectuses or Preliminary
Prospectuses;
(e) file documents required of the Company for
normal blue sky clearance in states specified in writing by the
Investor and use its commercially reasonable efforts to maintain
such blue sky qualifications during the period the Company is
required to maintain the effectiveness of the Registration
Statement pursuant to Section 6.1(c); provided, however, that the
Company shall not be required to qualify to do business or consent
to service of process in any jurisdiction in which it is not now so
qualified or has not so consented;
(f) bear all expenses in connection with the
procedures in paragraph (a) through (e) of this Section 6.1 and the
registration of the Shares and Warrant Shares pursuant to the
Registration Statement; and
(g) advise the Investor, promptly after it shall
receive notice or obtain knowledge of the issuance of any stop
order by the SEC delaying or suspending the effectiveness of the
Registration Statement or of the initiation or threat of any
proceeding for that purpose; and it will promptly use its
commercially reasonable efforts to prevent the issuance of any stop
order or to obtain its withdrawal at the earliest possible moment
if such stop order should be issued.
Notwithstanding anything to the contrary herein,
the Company shall only be obligated to register the Shares and
Warrant Shares on the Registration Statement. In no event at any
time before the Registration Statement becomes effective with
respect to the Shares and Warrant Shares shall the Company publicly
announce or file any other registration statement, other than
registrations on Form S-8, without the prior written consent of a
majority in interest of the Investors.
The Company understands that the Investor
disclaims being an underwriter, but the Investor being deemed an
underwriter by the SEC shall not relieve the Company of any
obligations it has hereunder; provided , however that
if the Company receives notification from the SEC that the Investor
is deemed an underwriter, then the period by which the Company is
obligated to submit an acceleration request to the SEC shall be
extended to the earlier of (i) the 90th day after such SEC
notification, or (ii) 120 days after the initial filing of the
Registration Statement with the SEC.
6.2 Transfer of Shares and Warrant Shares after
Registration; Suspension .
(a) The Investor agrees that it will not effect any
disposition of the Shares or Warrant Shares or its right to
purchase the Shares or Warrant Shares that would constitute a sale
within the meaning of the Securities Act except as contemplated in
the Registration Statement referred to in Section 6.1 and as
described below or as otherwise permitted by law, and that it will
promptly notify the Company of any changes in the information set
forth in the Registration Statement regarding the Investor or its
plan of distribution.
(b) Except in the event that paragraph (c) below
applies, the Company shall (i) if deemed necessary by the Company,
prepare and file from time to time with the SEC a post-effective
amendment to the Registration Statement or a supplement to the
related Prospectus or a supplement or amendment to any document
incorporated therein by reference or file any other required
document so that such Registration Statement will not contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading, and so that, as thereafter
delivered to purchasers of the Shares and Warrant Shares being sold
thereunder, such Prospectus will not contain an untrue statement of
a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading; (ii) provide the Investor copies of any documents filed
pursuant to Section 6.2(b)(i); and (iii) inform each Investor that
the Company has complied with its obligations in Section 6.2(b)(i)
(or that, if the Company has filed a post-effective amendment to
the Registration Statement which has not yet been declared
effective, the Company will notify the Investor to that effect,
will use its commercially reasonable efforts to secure the
effectiveness of such post-effective amendment as promptly as
possible and will promptly notify the Investor pursuant to Section
6.2(b)(i) hereof when the amendment has become
effective).
(c) Subject to paragraph (d) below, in the event
(i) of any request by the SEC or any other federal or state
governmental authority during the period of effectiveness of the
Registration Statement for amendments or supplements to a
Registration Statement or related Prospectus or for additional
information; (ii) of the issuance by the SEC or any other federal
or state governmental authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose; (iii) of the receipt by the Company
of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Shares
or Warrant Shares for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; or (iv) of any
event or circumstance which, upon the advice of its counsel,
necessitates the making of any changes in the Registration
Statement or Prospectus, or any document incorporated or deemed to
be incorporated therein by reference, so that, in the case of the
Registration Statement, it will not contain any untrue statement of
a material fact or any omission to state a material fact required
to be stated therein or necessary to make the statements therein
not misleading, and that in the case of the Prospectus, it will not
contain any untrue statement of a material fact or any omission to
state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading; then the Company shall
deliver a certificate in writing to the Investor (the
“Suspension Notice”) to the effect of the foregoing
and, upon receipt of such Suspension Notice, the Investor will
refrain from selling any Shares or Warrant Shares pursuant to the
Registration Statement (a “Suspension”) until the
Investor’s receipt of copies of a supplemented or amended
Prospectus prepared and filed by the Company, or until it is
advised in writing by the Company that the current Prospectus may
be used, and has received copies of any additional or supplemental
filings that are incorporated or deemed incorporated by reference
in any such Prospectus. In the event of any Suspension, the Company
will use its commercially reasonable efforts to cause the use of
the Prospectus so suspended to be resumed as soon as reasonably
practicable within 30 business days after the delivery of a
Suspension Notice to the Investor.
(d) Notwithstanding the foregoing paragraphs of
this Section 6.2, the Investor shall not be prohibited from selling
Shares or Warrant Shares under the Registration Statement as a
result of Suspensions on more than two occasions of not more than
30 days each in any twelve month period, unless, in the good faith
judgment of the Company’s Board of Directors of the Company,
upon the written opinion of counsel, the sale of Shares or Warrant
Shares under the Registration Statement in reliance on this
paragraph 6.2(d) would be reasonably likely to cause a violation of
the Securities Act or the Exchange Act and result in liability to
the Company.
(e) Provided that a Suspension is not then in
effect, the Investor may sell Shares or Warrant Shares under the
Registration Statement, provided that it arranges for delivery of a
current Prospectus to the transferee of such Shares or Warrant
Shares and confirms that a current Prospectus is on file with the
SEC.
(f) In the event of a sale of Shares or Warrant
Shares by the Investor pursuant to the Registration Statement, the
Investor must also deliver to the Company’s transfer agent,
with a copy to the Company, a Certificate of Subsequent Sale
substantially in the form attached hereto as Exhibit A , so
that the Shares or Warrant Shares may be properly
transferred.
6.3 Indemnification .
(a) The Company agrees to indemnify and hold
harmless the Investor from and against any losses, claims, damages
or liabilities to which such Investor may become subject (under the
Securities Act or otherwise) insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect
thereof) arise out of, or are based upon (i) any material breach of
the representations or warranties of the Company contained herein
or material failure to comply with the covenants and agreements of
the Company contained herein, (ii) any untrue statement of a
material fact contained in the Registration Statement as amended at
the ti
