SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities Exchange Act of 1934
[X] Filed by the Registrant
[ ] Filed by a Party other than the Registrant
Check the appropriate box:
[X] Preliminary Proxy Statement
[ ] Confidential, for Use of the Commission Only (as permitted by
Rule 14a-6(e)(2))
[ ] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to Rule 14a-11(c) or Rule 14a-12
Empire Energy Corporation
-------------------------------------------------------------------------------
(Name of Registrant as Specified In Its Charter)
(Name of Person(s) Filing Proxy Statement (if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
[ ] No fee required.
[X] Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
(1) Title of each class of securities to which transaction applies:
Class B Redeemable Voting Common Stock
--------------------------------------------------------------
(2) Aggregate number of securities to which transaction applies:
6,000,000
--------------------------------------------------------------
(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which the
filing fee is calculated and state how it was determined):
$1.20
-----------------------------------------------------------------------
(Amount represents estimated proceeds based on the purchase and sale
agreement provisions applied to the September 30, 2000 book value of
assets and liabilities in the proposed transaction.)
(4) Proposed maximum aggregate value of transaction:
$7,200,000
-----------------------------------------------------------------------
(5) Total fee paid:
$1,440
-----------------------------------------------------------------------
[X] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee
was paid previously. Identify the previous filing by registration
statement number, or the form of schedule and the date of its filing.
(1) Amount previously paid:
--------------------------------------------------------------
(2) Form, Schedule or Registration Statement No.:
--------------------------------------------------------------
(3) Filing Party:
--------------------------------------------------------------
(4) Date Filed:
--------------------------------------------------------------
iii
[EMPIRE ENERGY LOGO]
7500 COLLEGE BLVD.
SUITE 1215
OVERLAND PARK, KANSAS 66210
March 30, 2001
Dear Stockholder:
You are cordially invited to attend a special meeting of stockholders of
Empire Energy Corporation to be held on April 25, 2001, at 1:30 p.m., local
time, at our corporate headquarters, 7500 College Blvd., Suite 1215, Overland
Park, Kansas, 66210.
At this important meeting, you will be asked to consider and to vote upon,
1) a proposal to approve the acquisition (herein "Acquisition" or
"Merger" or "Transaction") of Commonwealth Energy Corp. (herein
"Commonwealth") by Empire Energy Corporation (herein "Empire") through
a merger transaction that provides for Empire to acquire all of
Commonwealth in exchange for approximately 6,000,000 shares of Empire
Class A Common Shares. Each Commonwealth shareholder has the right to
elect to receive one share of Empire Class B Redeemable Voting Common
Stock and one common share of Empire Exchangeco, a wholly-owned
Canadian subsidiary of Empire, in exchange for every six shares of
Commonwealth stock owned;
2) the amendment and restatement of Empire's Articles of Incorporation
providing for the increase of its number of board of directors from
five (5) to seven (7); and
3) the amendment and restatement of Empire's Articles of Incorporation
providing for the authorization and issuance of 6,000,000 shares of a
second class of stock, Class B Redeemable Voting Common Stock having a
par value of $0.0001 per share, necessary to effect the Acquisition.
In addition to these amendments to Empire's articles, Messrs. Lorne
Torhjelm and Sieg Deckert will be appointed to Empire's Board of
Directors. Empire will also form Empire Exchangeco, a wholly-owned
Canadian subsidiary, in order to effectuate the Acquisition.
Please note, all of the items subject to shareholder vote must be
approved for any of the items to be approved.
We urge you to read the accompanying proxy statement which includes details
about the proposed Acquisition and the amendment and restatement of our articles
of incorporation and other important information about us, including pro forma
financial information.
Our board of directors has carefully reviewed and considered the terms and
conditions of the proposed Acquisition as to the fairness of the consideration
to be paid by Empire to Commonwealth shareholders from a financial point of view
and, along with management, fully support this acquisition.
The proposed Acquisition described in the accompanying proxy statement will
be completed only if it is approved by a majority of the votes that are entitled
to be cast by holders of shares of Common Stock, voting together as a class.
Whether or not you plan to attend the meeting, we urge you to complete, sign,
date and return the enclosed proxy card promptly in the accompanying
postage-paid envelope. You may, of course, attend the meeting and vote in
person, even if you have previously returned your proxy.
iv
OUR BOARD OF DIRECTORS HAS APPROVED THE MERGER AGREEMENT AND THE AMENDMENT
AND RESTATEMENT OF ITS ARTICLES OF INCORPORATION TO PROVIDE FOR THE TERMS
DESCRIBED IN THE ACCOMPANYING PROXY STATEMENT AND RECOMMENDS THAT YOU VOTE FOR
APPROVAL OF the Acquisition and the amendment and restatement of the Company's
articles of incorporation. The Acquisition represents an important step in our
effort to deliver value to our stockholders.
Sincerely,
/s/ Norman L. Peterson
-------------------------------------------------
Norman L. Peterson
Chairman of the Board and Chief Executive Officer
v
[EMPIRE ENERGY LOGO]
7500 COLLEGE BLVD., SUITE 1215
OVERLAND PARK, KANSAS 66210
- ------------------------------
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
To be held April 25, 2001
We will hold a special meeting of stockholders of Empire Energy Corporation
(herein "Empire") on April 25, 2001 at 1:30 p.m., C.S.T., at our headquarters,
7500 College Blvd., Suite 1215, Overland Park, Kansas, 66210 for the following
purpose:
To consider and vote upon the following,
1) a proposal to approve the Acquisition (herein "Acquisition" or
"Merger") of Commonwealth Energy Corp. (herein "Commonwealth") by
Empire Energy Corporation (herein "Empire") through a merger
transaction that provides for Empire to acquire all of Commonwealth's
outstanding stock in exchange for its issuance of approximately
6,000,000 shares of Empire Class A Common Shares. Each Commonwealth
shareholder has the right to elect to receive one share of Empire
Class B Redeemable Voting Common Stock and one common share of Empire
Exchangeco, a wholly-owned Canadian subsidiary of Empire, in exchange
for every six shares of Commonwealth stock owned;
2) the amendment and restatement of Empire's Articles of Incorporation
providing for the increase of its number of board of directors from
five (5) to seven (7); and
3) the amendment and restatement of Empire's Articles of Incorporation
providing for the authorization and issuance of 6,000,000 shares of a
second class of stock, Class B Redeemable Voting Common Stock having a
par value of $0.0001 per share necessary to effect the Acquisition. In
addition to these amendments to Empire's articles, Messrs. Lorne
Torhjelm and Sieg Deckert will be appointed to Empire's Board of
Directors. Empire will also form Empire Exchangeco, a wholly-owned
Canadian subsidiary, in order to effectuate the acquisition.
It should be noted that all of the items subject to shareholder vote
must be approved in order for any of the items to be approved.
The Merger Agreement provides for Empire's acquisition of Commonwealth in
exchange for approximately 6,000,000 shares of Empire Class A Common Stock.
Commonwealth shareholders may elect to receive Empire Class B Redeemable Voting
Common Stock and Empire Exchangeco common stock in lieu of Empire Class A Common
Stock. Following the Acquisition, Empire's existing shareholders will own
approximately 73% of Empire's common stock. A copy of the Merger Agreement is
appended as Appendix A to the proxy statement that accompanies this notice.
Only holders of record of our Common Stock at the close of business on
January 9, 2001 are entitled to notice of, and to vote at, the meeting and any
adjournment or postponement of the meeting.
vi
We describe the proposal in more detail in the accompanying proxy
statement, which you should read carefully before you vote. THE ENCLOSED PROXY
IS SOLICITED BY OUR BOARD OF DIRECTORS. We urge you to date, sign and return the
enclosed proxy promptly. We are enclosing a postage-paid reply envelope for your
convenience. You are cordially invited to attend the meeting in person. The
return of the enclosed proxy will not affect your right to vote if you attend
the meeting in person.
Under the Utah Revised Business Corporation Act ("URBCA"), the Empire
shareholders have the right to dissent from approving the acquisition (and the
other matters that are subject to shareholder vote) by demanding payment in cash
for their shares equal to the fair value (excluding any appreciation or
depreciation in anticipation of the transaction unless exclusion would be
inequitable) of such shares. In the event of disagreement between the parties
(Empire and the dissenting shareholder) on fair value, fair value may be
determined by the court in an action timely brought by the corporation.
By Order of the Board of Directors,
/s/ Norman L. Peterson
------------------------------------
Norman L. Peterson
Chief Executive Officer
Dated: March 30, 2001
vii
TABLE OF CONTENTS
QUESTIONS AND ANSWERS 1
SUMMARY 3
Summary Term Sheet 3
Directors and senior management following the Acquisition 4
Votes required 4
Our recommendations to stockholders 5
Summary unaudited pro forma financial and other information 6
Empire's historical summary selected financial data 7
Commonwealth's historical summary selected financial data 8
Comparative market price data 9
Unaudited pro forma financial statements 10
Notes to unaudited pro forma financial statements 13
GENERAL PROXY INFORMATION 16
Date, time and place of special meeting of stockholders 16
Revocability of proxy 16
Dissenters' right of appraisal 17
Persons making the solicitation 18
The solicitation or recommendation 18
Voting securities and principal holders thereof 19
Voting procedures 20
SHAREHOLDER VOTE ITEM NUMBER 1 - ACQUISITION OF 20
COMMONWEALTH
SHAREHOLDER VOTE ITEM NUMBER 2 - INCREASE NUMBER 20
OF BOARD OF DIRECTORS FROM FIVE TO SEVEN
SHAREHOLDER VOTE ITEM NUMBER 3 - AUTHORIZATION 21
AND ISSUANCE OF CLASS B REDEEMABLE VOTING
COMMON SHARES
Background to the acquisition 21
Purposes of the transaction and plans or proposals 23
Reports, opinions, appraisals and negotiations 23
Past contacts, transactions, negotiations and agreements 24
Interest of certain persons in matters to be acted upon 24
Terms of the transaction 26
Selected financial data 32
Summary of Empire pro forma financial information 34
Incorporation by reference of information 36
Post-acquisition information about Empire 36
Compensation of Empire executives 38
Principal holders of Empire voting securities after Acquisition 39
Options and warrants to purchase Empire common shares 39
Business of Commonwealth 41
Management discussion and analysis of Commonwealth 44
Business of Empire 47
Other meeting matters 50
Where you can find more information 51
viii
Appended Schedules to this Proxy Statement are as follows:
A. Text of the Merger Agreement
B. Audited Financial Statements of Commonwealth as of and for the years
ended December 31, 1999 and 1998 and Unaudited Financial Statements of
Commonwealth as of and for the 9 months ended September 30, 2000.
C. Amended and Restated Articles of Incorporation of Empire
D. Text of URBCA Dissent Rights
E. Form of Proxy (for your records - a separate form is enclosed for
voting and return)
F. William M. Cobb & Associates, Inc. engineering report consent letter.
G. Thos D. Humphrey Oil Properties, Inc. engineering report consent
letter.
ix
EMPIRE ENERGY CORP.
("Empire")
7500 College Blvd., Suite 1215
Overland Park, Kansas, 66210
Telephone (913)-469-5615 Fax (913) 469-1544
PROXY STATEMENT
QUESTIONS AND ANSWERS
Q: What is being proposed?
A: Empire is proposing to acquire 100% of the outstanding common stock of
Commonwealth Energy Corporation ("Commonwealth") in exchange for
approximately 6,000,000 shares of Empire Class A Common Stock. The
transaction will be structured as an "exchangeable share" transaction under
which Commonwealth's shareholders can elect to receive one share of Empire
Class B Redeemable Voting Common Stock AND one share of Empire Exchangeco
Common Stock in lieu of receiving one share of Empire Class A Common Stock.
Empire Exchangeco is a wholly-owned Canadian subsidiary of Empire. As a
result of the transaction, former Commonwealth shareholders will own
approximately 27% of Empire. See "Summary Term Sheet" beginning on page 3
and "Terms of the Transaction" on page 26 for a further discussion
regarding the terms of the Acquisition.
Q: Who is Commonwealth?
A: Commonwealth is a Canadian company, that is publicly traded on the Canadian
Venture Exchange (CDNX). Commonwealth is primarily engaged in the
acquisition, exploration and development of petroleum and natural gas
properties in the United States. See "Business of Commonwealth" on page 41.
Q: Why is Empire acquiring Commonwealth?
A: The board of directors of Empire believes that the Acquisition is in the
best interest of the Empire stockholders. Empire should benefit from, 1) a
larger asset base; 2) better access to capital financing; 3) improved cash
flow; and 4) access to oil and gas properties owned by Commonwealth.
See "Background to the Transaction" beginning on page 21 for a more
complete discussion of the reasons for the acquisition.
Q: Why is the acquisition structured as an "exchangeable" share transaction?
A: Structuring the transaction as an exchangeable share transaction will
provide for Canadian tax deferral for former Commonwealth Canadian
shareholders who elect to receive the Exchangeable Shares rather than
Empire Class A Common Stock upon consummation of the transaction.
1
Q: How will the current management and operations of Empire be effected by the
transaction?
A: Empire will maintain its corporate headquarters in Overland Park, Kansas,
and will maintain another office in White Rock, British Columbia. Empire
plans to retain three members of Commonwealth management. Empire also plans
to retain the services of Commonwealth's external consultants. Empire's
operations will be effected by access to Commonwealth's oil and gas
properties for exploration and development purposes, and, as such, will
have production and/or prospects in Tennessee, Texas, Oklahoma, Wyoming and
Nicaragua. Refer to "Empire after the Transaction" beginning on page 39 for
further discussion.
Q: What does the board of directors recommend?
A: The board of directors recommends that stockholders vote FOR approval of
the acquisition and the necessary amendments to the Company's Articles of
Incorporation.
Q: What do I need to do now?
A: After carefully considering the enclosed information, please indicate how
you want to vote and sign and return your proxy card or voting instruction
card in the enclosed envelope as soon as possible. Your shares will then be
voted at the special meeting in accordance with your instructions.
Q: If my shares are held in "street name", by my broker, will my broker vote
my shares for me?
A: No. You must instruct your broker how to vote your shares or else your
broker will not vote your shares.
Q: Who can help answer additional questions that I may have?
A: Empire Energy Corporation
Investor Relations
(913) 469 - 5615
bryan@empireenergy.com
2
SUMMARY
This summary highlights selected information from this document. It may not
contain all of the information that is important to you. To better understand
the transaction and for a more complete description of the legal terms, you
should carefully read this entire document and the documents to which we have
referred you. See "Where You Can Find More Information" page 51.
Empire is proposing to acquire Commonwealth Energy Corp ("Commonwealth")
which has its principal offices at: 2383 King George Hwy, Suite 211,White Rock,
British Columbia, Canada V4A 5A4 and may be contacted at (800) 950-2587.
Commonwealth, a publicly traded company on the Canadian Venture Exchange
(CDNX), (ticker symbol CWY), is primarily engaged in the acquisition and
exploration and development of petroleum and natural gas properties in the
United States.
THE TRANSACTION
Summary Term Sheet.
Empire entered into a formal Merger Agreement dated December 12, 2000 (the
"Merger Agreement") with Commonwealth to effect the acquisition of 100% of
Commonwealth by Empire. The Merger Agreement, if approved by the Empire
shareholders, provides for the following (the agreement has already been
approved by the Commonwealth shareholders whereby 99% of their voting
shareholders approved the Transaction):
o Empire's Articles of Incorporation would be amended providing for, 1)
the increase of its board of directors from five to seven members; and
2) the authorization and issuance of 6,000,000 Class B Redeemable
Voting Common Shares having a par value of $0.0001. These amendments
are necessary to effect the Acquisition.
o Empire would form Empire Exchangeco, a wholly-owned Canadian
subsidiary. Commonwealth would be merged into Empire Exchangeco with
Empire Exchangeco as the surviving entity.
o In connection with the transaction, each Commonwealth shareholder
would be entitled to receive one share of Empire Class A Common Stock
for every six shares of Commonwealth Common Stock owned as of the
Closing Date. In lieu of receiving Empire Class A Common Shares, each
Commonwealth Shareholder would have the right to elect to receive one
share of Empire Exchangeco (Empire's wholly-owned Canadian subsidiary)
Common Stock and one share of Empire Class B Redeemable Voting Common
Stock, (collectively referred to as "Exchangeable Shares") for every
six shares of Commonwealth Common Stock owned as of the Closing Date.
The election by Commonwealth shareholders to receive Empire Exchangeco
Common Shares and Empire Class B Redeemable Voting Common Shares
should result in favorable Canadian income tax treatment for
Commonwealth's Canadian shareholders as compared to receiving shares
of Empire Class A Common Stock upon closing. Ultimately, Empire
anticipates that all exchangeable shares will be exchanged for
6,000,000 Empire Class A Common Shares on a one-for-one basis.
3
o No fractional shares will be issued in connection with the
Transaction. All shares will be rounded up to the nearest whole
number.
o Empire will issue warrants and options that can be exercised to
acquire 650,516 shares of Empire Class A Common Stock to replace all
existing Commonwealth options and warrants. Such options and warrants
will have exercise prices ranging from $.80 to $1.20. Existing
shareholders of Empire will retain 73% ownership of Empire subsequent
to the Acquisition assuming exercise of all replacement options and
warrants.
o The Empire Class B Redeemable Voting Common Shares would be paired
with the Exchangeable Shares, that is treated together as a unit;
(i.e. transferable and exchangeable only as a paired unit). The Class
B Redeemable Voting Common Shares will be entitled to vote with
respect to matters upon which Empire Common Shareholders generally
vote (election of directors, fundamental changes and the like) but are
not intended to have any economic value (i.e. no interest in Empire
assets except for the U.S.$0.0001 par value). The Exchangeable Shares,
issued by Empire Exchangeco, will be non-voting except with regard to
matters where a separate class vote is required by law. These shares
will participate in the liquidation value of Empire Exchangeco in the
event of a wind up but only to the extent of being entitled to receive
one Empire Class A Common Share per Exchangeable Share in satisfaction
of any liquidation right.
The paired shares are at any time, at the option of the holder,
exchangeable for Empire Class A Common Shares. Each Exchangeable Share and
Empire Class B Redeemable Voting Common Share will be exchangeable (upon demand
by the holder) for one Empire Class A Common Share. Further, the Exchangeable
Shares will automatically be exchanged into Empire Class A Common Shares in the
event that only 100,000 Exchangeable Shares remain outstanding or in case of an
insolvency event, wind-up of Empire Exchangeco or in the event of a merger,
acquisition or sale of all or substantially all of the assets of Empire in which
the holders of Exchangeable Shares should participate or in any event by
December 31, 2007.
Directors and senior management of Empire following the Acquisition (see page
36)
The board of directors will be increased from five to seven members. The
two new directors seats will be held by Mr. Lorne Torheljm and Mr. Sieg Diekert.
Messrs. Torheljm and Diekert presently serve as directors on Commonwealth's
Board of Directors. The remaining five director seats will remain unchanged.
Votes required
The affirmative vote of the holders of a majority of the outstanding shares
of Empire Common Stock is required to approve the Merger Agreement. The
affirmative vote of the holders of a majority of the outstanding shares of
Empire Common Stock is required to amend and restate Empire's Articles of
Incorporation providing for the increase in the number of its directors from
five to seven. The affirmative vote of the holders of a majority of the
outstanding shares of Empire Common Stock is required to amend and restate of
Empire's Articles of Incorporation providing for the authorization and issuance
of 6,000,000 Class B Redeemable Voting Common Shares. The transaction has
already been approved by the requisite majority of the Commonwealth
shareholders.
4
Our recommendations to stockholders
Empire's Board of Directors recommends that Empire stockholders vote FOR 1)
the approval of the Acquisition, 2) the amendment and restatement of its
articles of incorporation providing for the increase of its board of directors
from five to seven, and 3) the amendment and restatement of its articles of
incorporation authorizing the issuance of 6,000,000 Class B Redeemable Voting
Common Shares.
The Merger Agreement
The Merger Agreement, providing for Empire's acquisition of Commonwealth,
is attached as appendix A to this document. We encourage you to read the Merger
Agreement because it is the legal document that governs the transaction. It
contains information that may not be included elsewhere in this document.
Conditions to the Acquisition
In order to complete the transaction, a number of customary conditions must
be satisfied including the following:
o the approval of the acquisition by the Empire shareholders
(Commonwealth shareholders have already approved the transactions.
Refer to page 26);
o the absence of any law or court order prohibiting the transaction
(Refer to page 26; "Canadian Court Approval")
o the continued accuracy of each company's representations and
warranties, and the compliance by each company with its agreements
contained in the Merger Agreement.
o Empire's Common Shares must trade at a weighted average price of not
less than $1.20 during the five business days prior to Closing;
o Empire's share of hydrocarbon production from its properties during
the 30 days prior to Closing must average 150 barrels of oil (or BTU
equivalent) per day; and
o Empire will have at Closing, working capital calculated in accordance
with generally accepted accounting principles of at least $100,000.
Note, the Merger Agreement also provides that the Commonwealth Board of
Directors reserves the right to waive any of the aforementioned conditions.
OTHER INFORMATION
Accounting treatment
The transaction will be treated for financial accounting and reporting
purposes as a purchase of Commonwealth by Empire under the "purchase" method of
accounting.
5
Comparative per share market price information (see page 9)
Empire's common stock trades on the over-the-counter ("OTC") electronic
bulletin board. Commonwealth's common stock trades on the Canadian Venture
Exchange (CDNX). On October 23, 2000, the last full trading day prior to the
public announcement of the proposed transaction, Empire common stock closed at
US$1.625 per share and Commonwealth common shares closed at CN$0.33 per share.
Material federal income tax considerations.
The transaction has been structured so that it should not result in any
taxable gain or loss to Empire or the Empire shareholders.
Summary Unaudited Pro Forma Financial and Other Information
The following summary unaudited pro forma information has been prepared to
assist in your analysis of the financial effects of the acquisition. This pro
forma information is based on the historical financial statements of Empire and
Commonwealth and the pro forma adjustments reflected to account for the proposed
transaction and more fully described in the unaudited pro forma financial
statements beginning on page 10.
The unaudited summary pro forma information is presented for illustrative
purposes only. If the proposed transaction had occurred in the past, Empire's
financial position or operating results might have been different from those
presented in the unaudited summary pro forma information. You should not rely on
the unaudited summary pro forma information as an indication of the financial
position or operating results that Empire would have achieved if the merger had
occurred on September 30, 2000 for the pro forma balance sheet or January 1,
1999 for the pro forma statements of operations. You also should not rely on the
unaudited pro forma information as an indication of the future results that
Empire will achieve after the Acquisition.
- --------------------------------------------------------------------------------
Balance Sheet Empire Pro Forma as of September
US $ 30, 2000 (unaudited)
- --------------------------------------------------------------------------------
Working Capital $(281,940)
- --------------------------------------------------------------------------------
Long-term Assets 7,520,748
- --------------------------------------------------------------------------------
Total Assets 7,939,592
- --------------------------------------------------------------------------------
Long-term Obligations 0
- --------------------------------------------------------------------------------
Accumulated Deficit (6,283,034)
- --------------------------------------------------------------------------------
Shareholders' Equity 7,238,808
- --------------------------------------------------------------------------------
6
-------------------------------------------------------------------------------------------------------
Statement of Operations Empire Pro Forma for the 9 Empire Pro Forma for the year
-----------------------
months ended September 30, 2000 ended December 31, 1999
US $ (unaudited) (unaudited)
------------------------------------ ---------------------------------- ---------------------------------
Revenue $569,142 $169,992
------------------------------------ ---------------------------------- ---------------------------------
Net Income (Loss) from continuing (482,999) (1,089,401)
operations
------------------------------------ ---------------------------------- ---------------------------------
Net Income (Loss) from continuing (0.03) (0.07)
operations per share
------------------------------------ ---------------------------------- ---------------------------------
Other Data
------------------------------------ ---------------------------------- ---------------------------------
Cash dividends declared per common 0 0
share
------------------------------------ ---------------------------------- ---------------------------------
Ratio of earnings to fixed charges (19.5) (9.6)
------------------------------------ ---------------------------------- ---------------------------------
Book value per share 0.44 N/A
------------------------------------ ---------------------------------- ---------------------------------
Empire's Historical Summary Selected Financial Data
- --------------------------------------------------------------------------------
Balance Sheet As of and for the 9 mos. ended Sept.
- ------------- 30, 2000 (unaudited)
U.S. dollars
- --------------------------------------------------------------------------------
Working Capital (deficit) $222,641
- --------------------------------------------------------------------------------
Long-term Assets 234,329
- --------------------------------------------------------------------------------
Total Assets 500,355
- --------------------------------------------------------------------------------
Long-term Obligations 0
- --------------------------------------------------------------------------------
Accumulated Deficit (6,283,034)
- --------------------------------------------------------------------------------
Shareholders' Equity 456,970
- ----------------------------------------- ---------------------------------------- ------------------------------
Statement of Operations For the 9 months ended September 30, For the year ended December
- ----------------------- 2000 (unaudited) 31, 1999
US $
- ---------------------------------------- ---------------------------------------- ------------------------------
Revenue $414,826 $69,401
- ----------------------------------------- ---------------------------------------- ------------------------------
Net Income (Loss) from continuing (263,462) (670,089)
operations
- ----------------------------------------- ---------------------------------------- ------------------------------
Net Income (Loss) from continuing (0.02) (0.06)
operations per share
- ----------------------------------------- ---------------------------------------- ------------------------------
Other information
- ----------------------------------------- ---------------------------------------- ------------------------------
Cash dividends declared per common share 0 0
- ----------------------------------------- ---------------------------------------- ------------------------------
Ratio of earnings to fixed charges (35.7) (8.7)
- ----------------------------------------- ---------------------------------------- ------------------------------
Book value per share 0.04 N/A
- ----------------------------------------- ---------------------------------------- ------------------------------
7
Commonwealth's Historical Summary Selected Financial Data
----------------------------- ------------------- -----------------
Balance Sheet As of and for the As of and for
------------- 9 mos. ended the 9 mos.
Sept. 30, 2000 ended Sept. 30,
(unaudited) 2000 (unaudited)
Canadian $ U.S. $
----------------------------- ------------------- -----------------
Working Capital (deficit) ($379,266) ($254,581)
----------------------------- ------------------- -----------------
Long-term Assets 5,618,309 4,180,821
----------------------------- ------------------- -----------------
Total Assets 5,857,039 4,333,639
----------------------------- ------------------- -----------------
Long-term Obligations 0 0
----------------------------- ------------------- -----------------
Accumulated Deficit (1,750,220) (892,963)
----------------------------- ------------------- -----------------
Shareholders' Equity 5,239,043 3,926,240
(deficit)
----------------------------- ------------------- ----------------- ----------------- -----------------
Statement of Operations For the 9 months For the year For the 9 For the year
----------------------- ended September ended December months ended ended December
30, 2000 31, 1999 September 30, 31, 1999
(unaudited) 1999
Canadian $ Canadian $ U.S. $ U.S. $
----------------------------- ------------------- ----------------- ----------------- -----------------
Revenue $228,933 $146,148 $154,316 $100,591
----------------------------- ------------------- ----------------- ----------------- -----------------
Net Income (Loss) from (342,046) (587,013) (219,537) (419,312)
continuing operations
----------------------------- ------------------- ----------------- ----------------- -----------------
Net Income (Loss) from (0.06) (0.04) (0.04) (0.03)
continuing operations per
share
----------------------------- ------------------- ----------------- ----------------- -----------------
Other information
----------------------------- ------------------- ----------------- ----------------- -----------------
Cash dividends declared per 0 0 0 0
common share
----------------------------- ------------------- ----------------- ----------------- -----------------
Ratio of earnings to fixed (12.6) (11.5) (12.6) (11.5)
charges
----------------------------- ------------------- ----------------- ----------------- -----------------
Book value per share 0.96 N/A 0.72 N/A
----------------------------- ------------------- ----------------- ----------------- -----------------
8
EMPIRE AFTER THE TRANSACTION
Empire's Board of Directors and Management believe that Empire will be a
much stronger company post-acquisition. We expect the Acquisition to provide
Empire with the following advantages: the combined company will have a larger
asset base, better access to capital financing, better access to oil and gas
properties for exploration and development purposes, and better cash flow than
Empire alone. Please see the section titled, "Background to the Acquisition"
beginning on page 21.
COMPARATIVE MARKET PRICE DATA
The following table sets forth the high and low sales prices of the shares
of Empire Class A Common Stock, traded under the symbol "EECI.OB" on the
over-the-counter electronic bulletin board, and of the Commonwealth common
stock, traded under the symbol "CWY.V" on the Canadian Venture Exchange
(CDNX), for the calendar quarters indicated. Sales prices and trading
volumes for 1998 and 1999 can be found in Empire's most recent Forms 10-K.
See "Where You Can Find More Information" on page 51.
-------------------- ---------------
Commonwealth Empire
------------ ------
(CDNX) (OTC:BB)
--------
---------------- --------- --------- --------- ----------
High Low High Low
---------------- --------- --------- --------- ----------
2000 $CDN $CDN $US $US
----
---------------- --------- --------- --------- ----------
First Quarter 0.62 0.22 5.6875 1.375
---------------- --------- --------- --------- ----------
Second Quarter 0.52 0.20 4.00 1.6875
---------------- --------- --------- --------- ----------
Third Quarter 0.65 0.24 4.00 1.1875
---------------- --------- --------- --------- ----------
Fourth Quarter 0.33 0.16 1.75 0.84
---------------- --------- --------- --------- ----------
---------------- --------- --------- --------- ----------
1999
---------------- --------- --------- --------- ----------
First Quarter 0.44 0.17 N/A N/A
---------------- --------- --------- --------- ----------
Second Quarter 0.38 0.17 4.0625 2.8125
---------------- --------- --------- --------- ----------
Third Quarter 0.30 0.18 5.50 1.00
---------------- --------- --------- --------- ----------
Fourth Quarter 0.45 0.17 2.50 1.50
---------------- --------- --------- --------- ----------
The currency exchange rate for U.S. to Canadian dollars ranged from CN$.640
to CN$.698 for the two fiscal years ended December 31, 2000. The current (as of
March 27, 2001) trading price for Commonwealth was CN$.20. The current (as of
March 27, 2001) trading price for Empire was US$1.00.
9
UNAUDITED PRO FORMA FINANCIAL STATEMENTS
The following unaudited pro forma consolidated condensed financial
statements have been prepared to assist in your analysis of the financial
effects of the acquisition. Following are the unaudited consolidated condensed
pro forma financial statements of Empire which reflect the acquisition of
Commonwealth by Empire. The unaudited pro forma consolidated condensed financial
statements have been prepared utilizing the historical financial statements of
Empire which are incorporated herein by reference to previous filings made with
the Securities and Exchange Commission. See "Where You Can Find More
Information" on page 51 and the historical financial statements of Commonwealth
included as Appendix B to this proxy statement. The unaudited pro forma
consolidated condensed financial statements should be read in conjunction with
the historical financial statements of Empire and the attached historical
financial statements of Commonwealth.
The following unaudited pro forma consolidated condensed statements of
operations for the year ended December 31, 1999 and for the nine months ended
September 30, 2000 and the unaudited pro forma consolidated condensed balance
sheet as of September 30, 2000 give effect to the acquisition of Commonwealth
including the related pro forma adjustments described in the notes thereto. The
unaudited pro forma consolidated condensed statements of operations for the year
ended December 31, 1999 and the nine months ended September 30, 2000 give effect
to the acquisition of Commonwealth by Empire as if the acquisition, accounted
for as a purchase, had occurred on January 1, 1999. The unaudited pro forma
consolidated condensed balance sheet as of September 30, 2000 gives effect to
the acquisition as if it had occurred on September 30, 2000. The pro forma
financial statements reflect the preliminary allocation of the purchase prices.
The purchase price for Commonwealth will be finalized upon the completion of
management's review and resolution of any purchase contingencies.
The unaudited pro forma consolidated condensed financial statements may not
be indicative of the results that actually would have occurred if the
acquisitions had occurred if the acquisitions had been effective on the dates
indicated or which may be obtained in the future.
10
EMPIRE ENERGY CORPORATION
(A DEVELOPMENT STAGE COMPANY)
UNAUDITED PRO FORMA CONSOLIDATED CONDENSED BALANCE SHEET
- ---------------------------------------------------------------------------------------------------------------------------
ASSETS
------
Unaudited
Historical September 30, 2000 Pro Forma
----------------------------- Pro Forma September 30,
Empire Commonwealth Adjustments 2000
----------- ------------ ----------- -----------
CURRENT ASSETS
Cash $ 46,368 $ 59,458 $ -- $ 150,826
Bond -- 45,000 -- 45,000
Accounts receivable, net 40,500 45,891 -- 86,391
Inventories 179,158 -- -- 179,158
Prepaids -- 2,469 -- 2,469
----------- ----------- ----------- -----------
TOTAL CURRENT ASSETS 266,026 152,818 -- 418,844
PROPERTY AND EQUIPMENT, NET 65,443 -- -- 65,443
OIL AND GAS PROPERTIES, NET
Properties being amortized -- 2,613,512 -- 2,613,512
Properties not subject to amortization -- 1,562,094 (b) 3,105,598 4,667,692
OTHER ASSETS:
Marketable securities 59,291 -- 59,291
Receivables - related party 109,595 5,215 -- 114,810
----------- ----------- ----------- -----------
TOTAL ASSETS $ 500,355 $ 4,333,639 $ 3,105,598 $ 7,939,592
=========== =========== =========== ===========
LIABILITIES
-----------
CURRENT LIABILITIES
Accounts payable and accrued
expenses $ 885 $ 286,685 (b) $ 250,000 $ 537,570
Advances from directors -- 120,714 -- 120,714
Notes payable - related parties 20,000 -- -- 20,000
Convertible debentures 22,500 -- -- 22,500
----------- ----------- ----------- -----------
TOTAL CURRENT LIABILITIES 43,385 407,399 250,000 700,784
----------- ----------- ----------- -----------
STOCKHOLDERS' EQUITY
--------------------
STOCKHOLDERS' EQUITY
Common stock 13,712 4,469,415 (a) (4,469,415) 19,142
(b) 5,430
Stock subscriptions -- 3,700 (a) (3,700) --
Additional paid-in-capital 9,741,197 -- (b) 6,442,408 16,517,605
(b) 334,000
Treasury stock (1,125,000) -- -- (1,125,000)
Foreign currency translation -- 346,088 (b) (346,088) --
Accumulated other comprehensive
loss (21,906) -- -- (21,906)
Previous accumulated deficit (1,867,999) -- -- (1,867,999)
Accumulated deficit (6,283,034) (892,963) (a) 892,963 (6,283,034)
----------- ----------- ----------- -----------
TOTAL STOCKHOLDERS' EQUITY 456,970 3,926,241 2,855,598 7,238,808
----------- ----------- ----------- -----------
TOTAL LIABILITIES AND
STOCKHOLDERS' EQUITY $ 500,355 $ 4,333,639 $ 3,105,598 $ 7,939,592
=========== =========== =========== ===========
See notes to Unaudited Pro Forma Financial Statements.
11
EMPIRE ENERGY CORPORATION
(A DEVELOPMENT STAGE COMPANY)
UNAUDITED PRO FORMA CONSOLIDATED CONDENSED STATEMENT OF OPERATIONS
- -----------------------------------------------------------------------------------------------------------------------------------
For the Year Ended December 31, 1999
------------------------------------------------------------------------
Pro Forma Unaudited
Empire Commonwealth Adjustments Pro Forma
------------ ------------ ----------- ------------
OIL AND GAS SALES $ 69,401 $ 100,591 $ -- $ 169,992
EXPENSES
Lease operating 1,100 105,336 -- 106,436
Depreciation, depletion, amortization
and impairment 90,802 163,320 -- 254,122
Interest 76,750 36,367 -- 113,117
General and administrative 570,838 214,880 -- 785,718
------------ ------------ ------------ ------------
TOTAL EXPENSES 739,490 519,903 -- 1,259,393
------------ ------------ ------------ ------------
OPERATING LOSS (670,089) (419,312) -- (1,089,401)
Provision for income taxes -- -- -- --
------------ ------------ ------------ ------------
Net Loss $ (670,089) $ (419,312) $ -- $ (1,089,401)
============ ============ ============ ============
Net loss per common share $ (0.07)
============
Weighted Average Shares Outstanding 16,312,543
============
See notes to Unaudited Pro Forma Financial Statements.
12
EMPIRE ENERGY CORPORATION
(A DEVELOPMENT STAGE COMPANY)
UNAUDITED PRO FORMA CONSOLIDATED CONDENSED STATEMENT OF OPERATIONS
- -----------------------------------------------------------------------------------------------------------------------------------
For the Nine Months Ended September 30, 2000
--------------------------------------------------------------------
Pro Forma Unaudited
Empire Commonwealth Adjustments Pro Forma
------------ ------------ ----------- ------------
OIL AND GAS SALES $ 414,826 $ 154,316 $ -- $ 569,142
EXPENSES
Lease operating 8,401 76,218 -- 84,619
Depreciation, depletion, amortization
and impairment 244,536 52,171 -- 296,707
Interest, net (3,885) 17,418 -- 13,533
Loss from equity investment 4,375 -- 4,375
General and administrative 424,861 228,046 -- 652,907
------------ ------------ ------------ ------------
TOTAL EXPENSES 678,288 373,853 -- 1,052,141
------------ ------------ ------------ ------------
OPERATING LOSS (263,462) (219,537) -- (482,999)
Provision for income taxes -- -- -- --
------------ ------------ ------------ ------------
Loss from continuing operations (263,462) (219,537) -- (482,999)
Loss Per Share:
Loss from continuing operations $ (0.03)
============
Weighted Average Shares Outstanding 18,212,618
============
See notes to Unaudited Pro Forma Financial Statements.
NOTES TO UNAUDITED PRO FORMA FINANCIAL STATEMENTS
Acquisition of Commonwealth
On December 12, 2000, Empire entered into an agreement to acquire 100% of
Commonwealth in a stock exchange on the basis of six shares of Commonwealth for
one share of Empire. As a result, Empire will exchange approximately 5,429,758
shares of its common stock for all the issued and outstanding common stock of
Commonwealth. The purchase price for the stock is $6,447,838 based on a market
price of $1.1875 per Empire share on the date the agreement was reached.
Additionally, Empire granted 488,082 options and 162,434 warrants to replace
Commonwealth options and warrants currently outstanding on a one for six basis.
The replacement options and warrants have exercise prices ranging from $1.20 to
$2.70 and expire within approximately 6 months to 5 years.
The purchase price results in an increase in the cost of the net assets of
Commonwealth of approximately $3,106,000. Based on management's evaluation of
the fair value of the assets and liabilities acquired, the Company allocated
this increase in cost to oil and gas properties not yet subject to amortization.
Among other properties, Commonwealth owns a 50% working interest in
13
approximately 704 acres of gas properties in Leon County, Texas, that is
estimated to contain approximately 30 billion cubic feet (Bcf) of probable gas
reserves with a total net probable recovery of 12 Bcf. The property includes one
well that is under development with completion expected during the first half of
2001, and sites available for additional wells if indicated by the initial
results. The cost of this well will be included in the full cost amortization
calculation when the well is completed and begins production or is determined to
be unsuccessful.
Not included in these pro forma consolidated condensed financial statements
are the proceeds and issuance of shares related to a Commonwealth private
placement expected to be completed subsequent to September 30, 2000. The private
placement consists of 2,000,000 units, each unit consisting of one share of
Commonwealth stock and one, two year warrant to purchase Commonwealth stock at
$.30 Canadian per share for total proceeds from the sale of units of
approximately $345,000 U.S. If fully subscribed, 333,333 additional shares of
Empire stock will be exchanged for the 2,000,000 shares issued in the private
placement and 333,333 replacement warrants will be granted for the 2,000,000
warrants in the uncompleted private placement.
The acquisition of Commonwealth is subject to, among other things,
regulatory and shareholder approvals.
The historical financial information for Commonwealth was prepared using
U.S. Generally Accepted Accounting Principles.
Commonwealth's reporting currency is the Canadian dollar. Accounts whose
functional currency is the U.S. dollar that were translated to Canadian dollars
for Commonwealth reporting purposes were translated back at the rates used by
Commonwealth. Accounts whose functional currency is the Canadian dollar were
translated in the following manner: assets and liabilities at year end rates;
stockholder's equity at historical rates and results of operations at the
monthly average exchange rates. The effects of exchange rate changes are
reflected as a separate component of stockholders' equity.
The unaudited pro forma adjustments are as follows:
a. To remove the equity of Commonwealth upon the purchase by Empire.
b. To record the acquisition of Commonwealth under the purchase method:
Net assets acquired at fair value:
Current assets $ 152,818
Oil and gas properties 7,281,204
Other assets 5,215
Current liabilities (407,399)
----------
Total $7,031,838
==========
Consideration comprised of 5,429,758
common shares of Empire $6,447,838
Estimated transaction costs 250,000
Estimated consideration for replacement
options and warrants issued 334,000
----------
Total $7,031,838
==========
14
The purchase price results in an increase in the cost of oil and gas
properties not subject to amortization of $3,105,598. Therefore, no
additional depletion is reflected in the pro forma statements of
operations.
Earnings per share:
The following is a reconciliation of historical to pro forma weighted average
shares outstanding:
Year Ended Nine Months Ended
December 31, 1999 September 31, 2000
----------------- ------------------
Historical 10,882,785 12,782,860
Shares issued to acquire
Commonwealth (assumed to
be at beginning of period) 5,429,758 5,429,758
----------- -----------
Pro forma 16,312,543 18,212,618
========== ==========
Basic earnings per share of common stock was computed by dividing loss
applicable to common stockholders, by the weighted average number of common
shares outstanding for the year. Diluted loss per share is not presented because
all potential common shares are anti-dilutive including those to be issued as
replacement options and warrants.
15
GENERAL PROXY INFORMATION
DATE, TIME AND PLACE OF SPECIAL MEETING OF STOCKHOLDERS
We will hold a special meeting of stockholders on _________, 2001, at 1:30
p.m., C.S.T. time, at our corporate headquarters, which are located at 7500
College Blvd., Suite 1215, Overland Park, Kansas 66210.
We are furnishing this proxy statement to the holders of shares of our
Common Stock in connection with the solicitation of proxies by our board of
directors for use at a special meeting of stockholders in connection with the
Company's proposed acquisition of Commonwealth Energy Corp.
The board of directors does not know of any matters other than those
described in the notice of the special meeting that are to come before the
special meeting. If any other business is properly brought before the special
meeting, including among other things, a motion to adjourn or postpone the
meeting to another time and/or place for the purpose of soliciting additional
proxies in favor of the proposal to approve the Commonwealth acquisition and the
related amendments to Empire's Articles of Incorporation or to permit
dissemination of information about important developments relating to the
transaction or otherwise related to the meeting, one or more proxy holders named
in the proxy card will vote the shares represented by the proxy on those matters
as determined in their discretion.
Each record holder of common stock is entitled to one vote per share. The
presence, either in person or by properly executed proxy, of holders of a
majority of the outstanding shares entitled to vote will constitute a quorum for
the conduct of business at the meeting. For purposes of determining the presence
or absence of a quorum only, we intend to count as present at the meeting and
entitled to vote, stockholders of record who are present at the meeting in
person or by proxy and who obstain.
All references in this proxy statement to "we," "us," "our" or "Empire"
mean Empire Energy Corporation.
The date of this proxy statement is _________, 2001. We are first mailing
this proxy statement, the attached notice and the enclosed proxy card to
stockholders on or about ___________, 2001.
The Securities and Exchange Commission (herein "SEC") has not in any way
passed upon the merits of the transaction described herein and any
representation to the contrary is an offense.
REVOCABILITY OF PROXY
You may vote your shares by attending the meeting and voting in person or
by marking the enclosed proxy card with your vote and dating, signing and
returning it in the enclosed postage-prepaid return envelope. The individual
named as proxy holder on the enclosed proxy card will vote all shares of Common
Stock represented at the meeting by properly executed proxies that are timely
received and not revoked according to the instructions marked on the proxies. If
you do not mark your instructions on your proxy, the proxy holder(s) will vote
your proxy for approval of the purchase and sale agreement and the transactions
contemplated by the purchase and sale agreement, except as otherwise provided in
this proxy statement. THE PROXIES ARE SOLITICED ON BEHALF OF OUR BOARD OF
DIRECTORS.
16
You may revoke your proxy at any time before it is voted. To revoke your
proxy you must:
- - deliver to the Secretary of Empire before the meeting, or at the meeting
and before your shares have been voted, a written notice of revocation
bearing a later date than the proxy;
- - properly execute a new proxy relating to the same shares which bears a
later date than the original proxy and deliver it to the Secretary of
Empire before the meeting, or at the meeting and before your shares have
been voted; or
- - attend the meeting and vote in person, although attending the meeting will
not in and of itself constitute revocation of your proxy.
You should deliver any written notice or subsequently dated proxy which is
intended to revoke an earlier proxy to the principal executive offices of Empire
Energy Corporation, 7500 College Blvd., Suite 1215, Overland Park, Kansas 66210,
Attention: Secretary.
DISSENTERS' RIGHT OF APPRAISAL
Under the Utah Revised Business Corporation Act ("URBCA"), the Empire
shareholders have the right to dissent from approving the acquisition (and the
other matters that are subject to shareholder vote). In order to possess
dissenters' rights under Utah state law, a shareholder must have been a
shareholder with respect to the shares for which payment is demanded as of the
date the proposed corporate action creating dissenters' rights. In order to be
able to assert his dissenters' rights, a shareholder, (i) must cause the
corporation to receive, before the vote is taken, written notice of his intent
to demand payment for shares if the proposed action is effectuated; and (ii) may
not vote any of his shares in favor of the proposed action.
If proposed corporate action creating the dissenters' rights is authorized,
the corporation shall give a written dissenters' notice to all shareholders who
are entitled to demand payment for their shares. A shareholder who is given a
dissenters' notice and wishes to assert dissenters' rights must, in accordance
with the terms of the dissenters' notice: (i) cause the corporation to receive a
payment demand, (ii) deposit certificates for his certificated shares in
accordance with the terms of the dissenters' notice; and (iii) if required by
the corporation in the dissenters' notice certify in writing, in or with the
payment demand, whether or not he or the person on whose behalf he asserts
dissenters' rights acquired beneficial ownership of the shares before the date
of the first announcement to news media or to shareholders of the terms of the
proposed corporate action creating dissenters' rights.
A shareholder who properly demands payment retains all rights of a
shareholder except the right to transfer the shares until the effective date of
the proposed corporate action giving rise to the exercise of dissenters' rights
and has only the right to receive payment for the shares after the effective
date of the corporate action. A shareholder who does not demand payment and
deposit share certificates as required, by the date or dates set in the
dissenters' notice, is not entitled to payment for shares.
In the event of disagreement between the parties (Empire and the dissenting
shareholder) on fair value, fair value may be determined by the court in an
action timely brought by the corporation. Please see Appendix B for the complete
text of the URBCA dissenters' rights.
17
PERSONS MAKING THE SOLICITATION
THE PROXIES ARE SOLICITED ON BEHALF OF OUR BOARD OF DIRECTORS. This Proxy
Statement is provided in connection with the solicitation by the Directors of
Empire of proxies for the Special Meeting of the Shareholders of Empire (the
"Meeting") to be held at its offices located at 7500 College Blvd., Suite 1215,
Overland Park, KS, 66210, at 1:30 in the afternoon on April 25, 2001. We will
furnish to brokerage houses, fiduciaries and custodians holding in their names
shares beneficially owned by others copies of solicitation material to forward
to the beneficial owners. Upon request, we will reimburse persons representing
beneficial owners of shares for their expenses in forwarding solicitation
material to the beneficial owners. Empire will bear the entire cost of
soliciting proxies from our stockholders. Empire Shareholders who do not hold
their shares in their own name, as registered shareholders, should read "Advice
to Beneficial Shareholders" within for an explanation of their rights.
The Board of Directors does not contemplate a solicitation of proxies
otherwise than by mail. We may supplement original solicitation of proxies by
mail with telephone or personal solicitations by directors, officers or other
regular employees of Empire. We will not pay any additional compensation to our
directors or officers or our other regular employees for these services.
Empire has not retained (directly or indirectly) any person or classes of
persons to make solicitations or recommendations in connection with the
transaction.
The solicitation or recommendation.
Empire's Board of Directors recommends that its shareholders approve, 1)
its acquisition of Commonwealth; 2) the amendment and restatement of its
articles of incorporation providing for the increase of its board of directors
from five to seven; and 3) the amendment of its articles of incorporation
providing for the authorization and issuance of 6,000,000 shares of Class B
Redeemable Voting Common Shares having a par value of $0.0001.
Intent to tender.
To the best knowledge of Empire's Board of Directors and management, the
directors and officers of Empire and Commonwealth intend to hold their (both
owned directly or indirectly) Empire shares after consummating the merger for
the foreseeable future.
Appointment of Proxies
A shareholder has the right to appoint a nominee (who need not be a
shareholder) to represent him at the Meeting other than Norman Peterson, who is
the Chief Executive Officer and Chairman of the Board of Directors of Empire
(the "Board Designee") and is designated in the enclosed proxy form. To appoint
a proxy other than the Board Designee, insert the name of the proposed proxy
holder in the blank space provided in the proxy, and delete therefrom the name
of the Board Designee or complete another proper form of proxy. Such shareholder
should notify the nominee of his appointment, obtain his or her consent to act
as proxy and should instruct him or her on how the shareholder's shares are to
be voted. The nominee should bring personal identification with him to the
Meeting. In any case, the form of proxy should be dated and executed by the
shareholder or by his attorney. Where a proxy is signed on behalf of a
shareholder by his proxy, the attorney must have written authorization to act
and the written authorization must be attached to the proxy form.
A form of proxy will not be valid for the Meeting or any adjournment
thereof unless it is completed and delivered to Empire, at least forty-eight
(48) hours, excluding Saturdays and holidays, before the Meeting or any
adjournment thereof. Late proxies may be accepted or rejected by the Chairman of
the Meeting in his discretion. The Chairman is under no obligation to accept or
reject any particular late proxy.
18
Advice to Beneficial Shareholders
Shareholders who do not hold their shares in their own name (referred to
herein as "Beneficial Shareholders") are advised that only proxies from
registered shareholders (i.e. shareholders of record) can be recognized, and
only registered shareholders may vote at the Meeting. Beneficial Shareholders
who complete and return a proxy must indicate thereon the name and address of
the person or company (usually a brokerage or brokerage clearing house) which
holds their shares as a registered shareholder. Every reasonable attempt will be
made to pass such proxies along to the appropriate registered shareholder in
order that the registered shareholder may vote in accordance with the wishes of
the Beneficial Shareholder. The form of proxy supplied to Beneficial
Shareholders is identical to that provided to registered shareholders.
All references to shareholders in this Proxy Statement and the accompanying
form of Proxy and Notice of Meeting are to shareholders of record (registered
shareholders) unless specifically stated otherwise. Where documents are stated
to be available for review or inspection, such items will be shown upon request
to registered shareholders who produce proof of their identity and
shareholdings.
Voting of Proxies
The person named in the enclosed form of proxy is a director and officer of
Empire and has indicated his willingness to represent as proxy the shareholders
who appoint him. Each shareholder may instruct his proxy how to vote his shares
by completing the blank on the proxy form.
Shares represented by properly executed proxy forms in favor of the person
designated on the enclosed form will be voted or withheld from voting in
accordance with the instructions made on the proxy forms. In the absence of
contrary instructions, such shares will be voted in favor of all matters
identified in the Notice of Meeting.
The enclosed form of proxy confers discretionary authority upon the person
named therein with respect to amendments and variations to matters identified in
the Notice of Meeting and with respect to any other matters which may properly
come before the Meeting. At the time of printing this Proxy Statement, the Board
of Empire knows of no such amendments, variations or other matters to come
before the Meeting.
Voting SECURITIES and Principal Holders Thereof
Empire is authorized to issue fifty million (50,000,000) shares of par
value stock at $0.001 per share. As of the date of this Proxy Statement, being
March 26, 2001 Empire has 15,591,896 common shares issued and outstanding. There
are no other shares outstanding, of any class. The Common Shares are the only
shares entitled to be voted at the Meeting, and holders of Empire Common Shares
are entitled to one vote for each Empire Common Share held.
Empire's Transfer Agent has prepared a list of shareholders of record at
the close of business on January 9, 2001 (the "Record Date"). A holder of Empire
Common Shares named on that list will be entitled to vote the shares then
registered in such holder's name, except to the extent that (a) the holder has
transferred the ownership of any of his shares after the Record Date, and (b)
the transferee of those shares produces properly endorsed share certificates, or
otherwise establishes that he owns the shares, and demands not later than ten
(10) days before the day of the Meeting that his name be included in the list of
persons entitled to vote at the Meeting, in which case the transferee will be
entitled to vote his shares at the Meeting.
19
VOTING PROCEDURES
The Company's transfer agent compiles a list of the shareholders as of the
record date and each shareholder's number of shares (including the shareholder's
ownership percentage in the Company). All returned proxies are mailed to the
transfer agent who tabulates them. The Company nominates persons to administer
the process by which votes are cast at the meeting. A shareholder who is present
at the meeting must declare his intention to vote his shares at the meeting. He
is then allowed to cast his vote and his vote is combined with the transfer
agent's records. If the shareholder has previously submitted his proxy to the
transfer agent, the transfer agent will update its records accordingly.
SHAREHOLDER VOTE ITEM NUMBER 1 - ACQUISITION OF COMMONWEALTH
The first item subject to shareholder vote is Empire's acquisition of all
of the outstanding shares Commonwealth in exchange for 6,000,000 shares of
Empire Class A Common Shares. The Acquisition would be structured as an
Exchangeable Share transaction in which the Commonwealth shareholders would have
the right to elect to receive one share of Empire Class B Redeemable Voting
Common Stock and one share of Empire Exchangeco Common Stock in lieu of
receiving Empire Class A Common Shares. The Empire shares will be paid to the
Commonwealth shareholders on a one-for-six basis (i.e. each Commonwealth
shareholder as of the Closing Date would be entitled to receive one share of
Empire Class A Common Stock in exchange for every six shares of Commonwealth
Common Stock. Fractional shares will not be issued in connection with the
Acquisition. Any fraction shares will be rounded up to the nearest whole number.
Empire's Board of Directors has approved the Acquisition and recommends that the
Empire shareholders vote in favor of the transaction. PLEASE NOTE, ALL OF ITEMS
SUBJECT TO SHAREHOLDER VOTE MUST BE APPROVED IN ORDER FOR ANY OF THE ITEMS TO
BE APPROVED.
SHAREHOLDER VOTE ITEM NUMBER 2 - INCREASE NUMBER OF BOARD OF DIRECTORS FROM
FIVE TO SEVEN
The second item subject to shareholder vote is the amendment and
restatement of Empire's Articles of Incorporation in order to expand the number
of directors sitting on its board from five (5) to seven (7). No shareholder
action is being taken with respect to electing directors in connection with the
expansion of Empire's board. However, Messrs. Lorne Torheljm and Sieg Deckert
will be appointed to Empire's Board of Directors in connection with the merger
transaction for the interim period until Empire's next annual shareholder
meeting. Please note, all of the items subject to shareholder vote must be
approved for any of the items to be approved. See "Directors and Officers of
Empire" on page 36 for information regarding Messrs. Torheljm and Deckert.
20
SHAREHOLDER VOTE ITEM NUMBER 3 - AUTHORIZATION AND ISSUANCE OF CLASS B
REDEEMABLE VOTING COMMON SHARES
The third item subject to shareholder vote is the amendment and restatement
of Empire's Articles of Incorporation to provide for the authorization and
issuance of 6,000,000 shares of Class B Redeemable Voting Common Shares with a
par value of $.0001. Please note, all of the items subject to shareholder vote
must be approved for any of the items subject to be approved.
Background to the Acquisition
During the summer of 2000, Empire began actively seeking acquisition/merger
candidates. The search focused on a universe of smaller companies, including OTC
listed companies, pink sheet companies and those companies that had recently
been delisted from the OTC due to their inability to comply with new reporting
rules. Empire believes that the most cost effective method of growing its
business would be through the acquisition or merger with other oil and gas
companies who had proven oil and gas properties as well as development
properties and began actively seeking such candidates in early 2000. Because of
the relatively high number of small publicly traded companies with modest market
capitalization who are engaged in oil and gas producing activities, Empire
believed that it could merge with or acquire such a company possessing valuable
oil and gas properties for a purchase price less than the cost the Company would
incur acquiring and developing the properties singularly. Empire observed that
during the past year the increase in natural gas prices and elevated oil prices
drove the industry into an environment that had not been seen in quite some
time. As the commodity prices increased, so did the cost of doing business. The
ability to locate, research, understand, evaluate, close and develop prospect
properties became more competitive and costly to do. Because Commonwealth had
established a portfolio of properties consisting of operations in three U.S.
states (Texas, Oklahoma and Wyoming) and in Canada, and because they had the
infrastructure in place in each of these vastly differing regions which include
working interest and net revenue interest positions, property expertise,
geologic knowledge, engineering knowledge, leasor relationships, database
management, etc., that Empire would save considerable time, effort and cost by
acquiring Commonwealth. This was viewed as the most efficient and expeditious
vehicle to building asset and shareholder value, increased revenues and
diversification than if we attempted to do it on an individual
property-by-property basis.
Empire's management identified approximately seven or eight targets
(through review of the target's publicly available reports) that Empire believed
to be potential merger/acquisition candidates. Also during this time, Empire
observed in various industry periodicals a market trend of U.S. oil and gas
companies acquiring/merging with Canadian oil and gas companies. This caused
Empire to expand its search to include Canadian public reporting companies.
Empire's research revealed that several Canadian public reporting companies met
its search criteria. The impetus behind this activity appeared to be both the
exchange rate issue and the fact that the trading prices of these companies were
below their book values. Thus, Empire began searching for a Canadian public
company with significant oil and gas properties in the United States. Empire's
search generated five or six companies that might be viable acquisition
candidates. After analyzing many factors, including public availability of the
target's company information, the location of their properties, the balance of
their production (whether in oil or gas) and the capital structure of the
potential target (shares outstanding, debt, revenues, book value, trading price,
etc.), Empire's management determined that Commonwealth was the best
merger/acquisition candidate for the following reasons: 1) access to
Commonwealth's natural gas properties, 2) Commonwealth was trading below book
value at the time, 3) Commonwealth's ownership of the Leon County, Texas
property, which was attractive to Empire management (high development potential
due to a two-play option: the pinnacle reef structures and the Bossier sand
formation as well as a good working interest position and the fact that there
was an existing well on the lease), 4) most of Commonwealth's assets were in the
21
US, 5) the diversity in the location of their other properties, 6) Commonwealth
had nominal debt and, 7) the acquisition of Commonwealth would provide Empire
with sufficient assets to allow application for listing on the American Stock
Exchange which would be a benefit to the shareholders of both companies. After
making this determination, Empire's President, Bryan Ferguson, contacted Lorne
Torjhelm, President of Commonwealth in August of 2000 at which time they began
entering preliminary merger discussions. After several "fact finding"
discussions with Mr. Torjhelm, Empire proposed a verbal proposal, outlining the
terms described below and received a favorable response, that these terms were
acceptable. There were no further negotiations on the terms of the transaction
with the exception of discussion of some of the mechanics of getting the
transaction completed.
The six-to-one merger/conversion ratio was determined by Empire management
estimating underlying fair market value of Commonwealth's oil and gas properties
less existing liabilities. In performing this analysis, Empire estimated that
Commonwealth's properties had a net fair market value of approximately
$10,000,000. The $10,000,000 valuation was based on both tangible and intangible
items but primarily on the estimated reserves represented in engineering reports
provided by Commonwealth. Empire assigned a $8.2MM current value based on PW10
future net cash flow value to the Leon County, Texas, property based on
$4.00/MCF and 12.3 BCF recoverable reserves (probable). Empire assigned a
$342,000 current value based on PW10 future net cash flow value of to the Parker
County, Texas property based on $4.00/MCF and 441,970 MCF proved, developed
producing reserves. Empire assigned a $318,000 current value based on PW10
future net cash flow value to the Coleman County, Texas property based on
$4.00/MCF and 297,029 MCF proved, developed producing and 523,896 MCF proved
non-producing. Additionally, Empire assigned an estimated value of approximately
$1,000,000 based on estimated future net cash flow of probable coal bed methane
gas reserves from the Mulky coal and oil reserves on the Washington County,
Oklahoma, properties. This value is not based on independent engineering reports
but rather Empire's valuations of the geology and production from that area.
Empire did not assign significant asset value to the Wyoming leases but did give
consideration to the land costs and development potential provided by
Commonwealth's familiarity and knowledge of the properties and geology in the
region. When evaluating the asset value of Commonwealth's working interest in
the Alberta gas operations, Empire relied solely on the projected monthly cash
flow of $7,500. Empire primarily relied upon review of the reports that
Commonwealth provided and in verbal discussions with Commonwealth and their
operating consultants regarding production and development potential of their
properties.
Based upon Commonwealth's estimated 32,000,000 outstanding shares, Empire
management determined that Commonwealth had an underlying value per share of
approximately $.32 ($10,000,000/32,000,000 shares). Further, Empire valued its
shares for the transaction at $2.00 per share because of their stock's trading
price at the time that negotiations began and factoring in the stocks volatility
and liquidity. Empire stock was trading between $1.87 and $2.75 during the month
of August 2000. Based upon these values per share, Empire determined that the
conversion ratio upon the exchange should be six Commonwealth shares for each
share of Empire stock issued in connection with the acquisition. Essentially,
Empire divided the $.32 per share of Commonwealth into $2.00 per share of Empire
to come up with the 6 to 1 ratio. This equation was viewed to be both logical
and appropriate because of its focus on the fundamentals of the transaction.
Empire's Board of Directors and management believe that the 6 to 1 exchange
ratio (Commonwealth shares to Empire shares) is fair from a financial point of
view to the Empire shareholders. Commonwealth accepted Empire's initial proposal
of the 6 to 1 ratio. The negotiation between the two companies primarily focused
on the conditions precedent to the transaction's closing (i.e. Empire share
trading price, Empire's working capital as of the closing date and Empire's
hydrocarbon production levels).
The Empire Board of Directors also considered several possible negative
factors related to the transaction which included: the possible collapse of oil
and natural gas prices, the inability of Commonwealth's current technical
22
experts to assist in property development, Empire's ability to effectively take
on the operations required to manage such a large portfolio of projects and the
ability of Empire to raise sufficient funds to develop these properties. Upon
review and consideration of the possible negative factors, Empire's Board of
Directors still believes that the Acquisition of Commonwealth based on the
proposed structure is fair from a financial point of view to the Empire
shareholders.
Purposes of the transaction and plans or proposals.
Empire's Board of Directors is proposing approval of the Merger Agreement
by Empire Shareholders to acquire Commonwealth because management believes that
the combination of Empire and Commonwealth will be beneficial to Empire
Shareholders as the combined company will have a larger asset base, better
access to capital financing and better cash flow than Empire alone.
The board believes that the acquisition will provide the Company with
valuable oil and gas properties in a cost effective manner particularly in light
of recent trends in wholesale oil and gas prices. In addition, the board
believes that the merged company will have better access to capital financing in
order to explore for and develop oil and gas reserves held by both companies.
Empire has been actively seeking potential acquisition or merger candidates
and has held preliminary discussions with several companies. In the board of
directors and management's opinion, the acquisition of Commonwealth proposed
herein represents the most cost efficient transaction providing Empire with
significant new oil and gas properties with development potential. Empire is not
currently engaged in any discussions with other potential acquisition or merger
candidates however the Company will continue to seek potential acquisition or
merger candidates meeting its criteria.
Empire plans to retain the Commonwealth shares that it will receive in the
acquisition and continue Commonwealth's existing operations.
Reports, opinions, appraisals and negotiations.
Empire management discussed and considered engaging an independent firm to
render a fairness opinion and discussed such with the Board of Directors.
Management concluded that an independent fairness opinion was unnecessary for
the following reasons: 1) The assets of the company being acquired consisted
almost entirely of oil and gas leases, the most valuable of which had recent
engineering reports. 2) Management felt such reports in themselves gave the
company an independent valuation of the assets similar to what would be expected
from an independent fairness opinion. 3) Liabilities of the target company could
be obtained from recent audited and unaudited financial statements and would be
the same information used by anyone preparing a fairness opinion. 4) The
fairness opinion obtained by Commonwealth was made available to Empire's
management. 5) The Board of Directors felt that Empire's management possessed
sufficient skills and experience to calculate a fair exchange ratio for shares
that would be issued for these to Commonwealth shareholders and, 6) In addition
to the above reasons, management believed that a fairness opinion would not
differ from the independent reserve analyses and valuation that the company
already possessed and therefore would not be a prudent use of company funds.
23
Past contacts, transactions, negotiations and agreements.
In November and December 2000, Empire acquired a 44.6% working interest in
approximately 704 acres of oil and gas properties in Leon County, Texas,
primarily from Trend Capital Corporation ("Trend"). The total consideration paid
was 1,784,000 shares of Empire Class A Common Stock with a fair value of
approximately $2,063,000. One of Trend's principals is Lorne Torhjelm, who is
the current chairman of Commonwealth and who is proposed to be appointed to the
Empire board upon the closing of the Acquisition. Empire learned of the Leon
County oil and gas properties through its due diligence performed while it was
considering Commonwealth as a potential merger/acquisition candidate. As of
November 2000, the acquired properties were not generating revenues.
INTEREST OF CERTAIN PERSONS IN MATTERS TO BE ACTED UPON
No Empire director, officer or other member of management has any interest
(material or immaterial), direct or indirect, in the transaction other than as
an Empire shareholder.
To the knowledge of the directors and senior officers of Empire, no person,
firm or corporation beneficially owns, directly or indirectly, or exercised
control or direction over voting securities carrying more than 5% of the voting
rights attached to any class of voting securities of Empire except as set out in
the table below:
- ---------------------------------------------------------------------------------------------------------------------
Title of Class
More than 5% owners
Amount of
Nature of Percentage of
Name of Beneficial Owner Beneficial Ownership Class
- ---------------------------------------------------------------------------------------------------------------------
Common Stock Norman Peterson 4,390,875 30%
(beneficially owned through
Peterson & Sons Holding
Company)
7500 College Blvd.
Suite 1215
Overland Park, KS 66210
- ---------------------------------------------------------------------------------------------------------------------
24
The members of the board of directors and executive officers of Empire are
the beneficial owners of Empire common stock as shown in the table below:
- --------------------------- ------------------------- -------------------------- ------------------------
Title of Class Board Members Amount of Percent of class
nature of
Name of beneficial owner beneficial
ownership
- --------------------------- ------------------------- -------------------------- ------------------------
Class A Common Stock Norman L. Peterson 4,390,875 29.8%
Director, CEO
- --------------------------- ------------------------- -------------------------- ------------------------
Class A Common Stock Bryan S. Ferguson, 32,800 0.2%
President
- --------------------------- ------------------------- -------------------------- ------------------------
Class A Common Stock John Garrison, Director 52,500 0.4%
- --------------------------- ------------------------- -------------------------- ------------------------
Class A Common Stock John R. Dixon, Director 72,500 0.45
- --------------------------- ------------------------- -------------------------- ------------------------
Class A Common Stock Elliott M. Kaplan, 27,500 0.2%
Director
- --------------------------- ------------------------- -------------------------- ------------------------
Class A Common Stock John L. Hersma, Director 190,000 1.3%
- --------------------------- ------------------------- -------------------------- ------------------------
The members of the board of directors and executive officers of Empire
cumulatively are the beneficial owners of Empire common stock shown in the table
below:
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Title of Class Name of beneficial owner Amount of Percent of class
nature of beneficial
ownership
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Common Stock Management and directors, 4,766,175 32.3%
as a group
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
25
TERMS OF THE TRANSACTION
Material Terms
Brief description of the transaction.
The principal terms of the transaction provide that at the effective time
of the merger (anticipated to occur on May 1, 2001) all Commonwealth
shareholders will be deemed to have exchanged their Commonwealth Common Shares
on a six-for-one basis for Empire Class A Common Shares. Note, each Commonwealth
shareholder has the right to elect to receive one share of Empire Class B
Redeemable Voting Common Stock and one share of Empire Exchangeco Common Stock
(the "Exchangeable Shares") in lieu of Empire Class A shares. Such Exchangeable
Shares will be exchangeable at any time chosen by the holder into publicly
traded Class A Common Shares of Empire ("Empire Common Shares") on a one-for-one
basis. Commonwealth Shareholders will also be concurrently issued directly by
Empire, $0.0001 par value redeemable Empire Class B Redeemable Common Voting
shares (the "Empire Voting Shares") so that Commonwealth Shareholders will have
voting rights equivalent to Empire Common Shares until they elect to exchange
Exchangeable Shares for Empire Common Shares. As of January 8, 2001 Commonwealth
has 32,578,544 of Commonwealth Common Shares outstanding which will be exchanged
on a six-to-one basis for Empire Common Shares. In addition, Commonwealth has
warrants and options outstanding that will be exchanged for 650,516 options to
purchase Empire Class A Common Shares with exercise prices ranging from US$.80
to US$1.20. Commonwealth Option Holders and Commonwealth Warrant Holders will
receive options and warrants in Empire, appropriately adjusted as to number and
exercise price (herein "Replacement Option" and "Replacement Warrants").
At the conclusion of the transaction, subject to approval of Empire
shareholders and certain business conditions (U.S.$1.20 minimum Empire Common
Share trading price, minimum working capital and hydrocarbon production for
Empire), Commonwealth will become a controlled subsidiary of Empire, to be
renamed Empire Energy Canada Ltd. Commonwealth Shareholders would hold, upon
exchange of their Exchangeable Shares, approximately 27% of the 20.2 million
Empire Common Shares anticipated to be then outstanding (assuming all
replacement options and warrants are exercised).
Commonwealth Securityholders' Approvals
The transaction and Plan of Arrangement was approved by the requisite
majority of Commonwealth's shareholders and security holders at Commonwealth's
special shareholder meeting held on February 12, 2001.
Canadian Court Approval
Commonwealth applied for and received the Final Order from the Queen's
bench of Alberta on February 14, 2001. In contemplating issuing the Final Order,
it should be noted that the court passed upon the fairness of the transaction,
was advised of the fact that Empire and Commonwealth were relying on the hearing
as the basis for exemption from registration under the 1933 Securities Act; and
each person that will receive Empire shares in the transaction had the right to
appear at and received actual notice of the final court hearing. The final order
is not effective until filed with the Director appointed under the CBCA and the
Final Order will only be filed when all other conditions to closing have been
met. Any security holder or creditor of Commonwealth has the right to appear at
such hearing, be heard and present evidence if such person is of the view that
his or her interests are prejudiced by the transaction.
26
Timing
It is anticipated that the closing of the transaction will occur in May
2001; however, it is possible that closing may be delayed later than this date
if conditions to closing cannot be timely met in which event Empire will, in
consultation with Commonwealth, make a joint announcement updating the status of
the transaction.
Consideration offered to security holders.
The Commonwealth shareholders are entitled to receive one share of Empire
Class A Common Shares for every six shares of Commonwealth. In lieu of receiving
Empire Class A Common Shares, each Commonwealth shareholder may elect to receive
one share of Empire Exchangeco Common Stock and one share of Empire Class B
Redeemable Voting Common Stock for every six shares of Commonwealth. The Empire
Class A Common Shares to be issued to Commonwealth shareholders are exempt from
registration under Section 3(a)(10) of the Securities Act of 1933. A court order
was issued on February 14, 2001 that constitutes the basis for the exemption to
apply to the Empire shares that are to be issued to the Commonwealth
shareholders in exchange for their Commonwealth shares. With respect to the
application of Section 3(a)(10), it is observed that:
a) The Court of Queen's bench of Alberta passed upon the fairness of the
transaction;
b) The Court was advised prior to the hearing that Commonwealth and
Empire were relying on the hearing as a basis for exemption from
registration under the 1933 Act under Section 3(a)(10); and
c) Each person to whom securities will be issued under the Arrangement
had the right to appear at and received actual notice of the final
court hearing (details of which are in the Commonwealth proxy
materials).
The Class B Redeemable Voting Common Shares and Exchangeco Shares
The Class B Redeemable Voting Common Stock shall not be entitled to
dividend rights. The shares are exchangeable on a one-for-one basis for Empire
Class A Common Stock. However, because each share of Class B Redeemable Voting
Common Stock is paired to a share of Exchangeable Stock the holder must also
tender one Exchangeable Share in order to be able to exchange a share of Class B
Redeemable Voting Common Stock for a share Class A Common Stock. A sinking fund
has not been established in connection with the Class B Redeemable Voting Common
Stock. The Class B shares are entitled to one vote per share for each share held
at all meetings of stockholders. The Class B shares shall vote together with the
Class A shares as a single class. There is no cumulative voting. The Class B
shares are not entitled to receive any assets of the corporation upon the
dissolution or liquidation except for their par value. The Class B shares do not
possess pre-emption rights. The Class B shares are subject to transfer
restrictions. The shares may not be transferred to a third party. A Class B
share can only be "put" to Empire in exchange for one share in Empire. However,
as noted above, the holder must also "put" an equal number of Exchangeable
Shares to Empire. The Class B shares do not contain any limiting provisions with
respect to significant shareholders.
The rights of the holders can only be modified by a vote of a majority of
the shares outstanding. No preferred shares are being issued. The rights of
holders of the Class B shares are "paired" to a class of Exchangeable Shares in
Empire Exchangeco. It is anticipated that Empire Exchangeco will be a
wholly-owned Canadian subsidiary that will serve as a holding company for the
Commonwealth operations. The Exchangeable Shares are entitled to dividends. A
dividend must be declared on the Exchangeable Shares to the extent that a
dividend is declared on the Class A Common Shares. A sinking fund has not been
established in connection with the Exchangeable Shares. The Exchangeable Shares
27
are not entitled to vote. The Exchangeable Shares provide rights for the holder
to participate equally with the Class A Common Shareholders in the event of
dissolution or liquidation. In order to protect this right, the Exchangeable
Shares contain provisions requiring the creation of a Trust in the event of
Empire's dissolution or liquidation. The Exchangeable Shares do not possess
pre-emption rights. The Exchangeable Shares are "paired" to the Class B
Redeemable Voting Common Shares and are subject to identical transfer
restrictions. A holder may only "put" an Exchangeable Share (along with a Class
B Redeemable Voting Common Share) to Empire in exchange for one share of Class A
Common Stock. The Exchangeable Shares do not contain any limiting provisions
with respect to significant shareholders.
The Empire Class B Redeemable Voting Common Shares will not be registered
under the Securities Act of 1933, and therefore will not be freely tradeable. In
addition, the shares contain transfer restrictions that only allow the holder to
"put" the shares back to Empire in exchange for Empire Class A Common Shares or
for Empire to "call" the shares in exchange for Empire Class A Common Shares or
for the cash equivalent of that day's current trading price.
Replacement Options and Warrants
The Empire Class A Common Shares underlying the replacement options and
warrants issued to Commonwealth securityholders will not be registered
securities under the Securities Act of 1933. Holders will need to register such
securities or have a valid exemption under the Securities Act of 1933 in order
to effect transfers.
Explanation of any material differences in the rights of security holders as a
result of the transaction.
The rights of the Empire shareholders will be identical in all material
respects before and after the acquisition transaction.
Accounting treatment of the transaction
The transaction will be treated for financial accounting and reporting
purposes as a purchase of Commonwealth by Empire.
Federal income tax consequences of the transaction.
The transaction has been structured so that it should not result in any
taxable gain or loss to existing Empire shareholders.
Eligibility for listing or trading.
The Exchangeable Shares and Empire Class B Redeemable Voting Common Shares
to be issued to the Commonwealth shareholders will not be registered under the
Securities Act of 1933. The Empire Class A Common Shares issued in exchange for
the Exchangeable Shares and Empire Class B Redeemable Voting Common Shares will
be issued either (i) in reliance upon the exemption provided by Section 3(a)(10)
of the 1933 Act or (ii) in reliance upon exemptions from registration provided
by Regulation S or Rule 506 of Regulation D of the 1933 Act.
Section 3(a)(10):
Section 3(a)(10) exempts securities issued in exchange for one or more
outstanding securities from the general requirement of registration where the
terms and conditions of the issuance and exchange of such securities have been
approved by a recognized court, after a hearing upon the fairness of the terms
28
and conditions of the issuance and exchange at which all Persons to whom such
securities will be issued have the right to appear. The Court is authorized to
conduct a hearing to determine the fairness of the terms and conditions of the
Arrangement, including the proposed issuance of securities in exchange for other
outstanding securities. The Court entered the Interim Order on January 8, 2001
and, the Final Order was issued on February 14, 2001.
The Exchangeable Shares and Empire Class B Redeemable Voting Common Shares
received in exchange for Commonwealth Common Shares in the Arrangement in
reliance upon the exemption provided by Section 3(a)(10) will be freely
transferable under United States federal securities laws, except for such shares
held by persons who are deemed to be "affiliates" (as such term is defined under
the 1933 Act see below) of Commonwealth prior to the Arrangement which may be
resold by them only in transactions permitted by the resale provisions of Rule
145(d)(1), (2), or (3) promulgated under the 1933 Act or as otherwise permitted
under the 1933 Act. In the event Empire Class A Common Shares are publicly
listed, Rule 145(d)(1) generally provides that "affiliates" of Commonwealth may
sell securities of Empire received in the Arrangement if such sale is effected
pursuant to the volume, current public information and manner of sale
limitations of Rule 144 promulgated under the 1933 Act, including Regulation S
thereunder.
Rule 144 limitations generally require that any sales in any 3 month period
made by a securityholder who is subject to such limitations shall not exceed the
greater of 1% of the outstanding shares of the securities being sold or the
average weekly trading volume over the 4 calendar weeks preceding the placement
of the sell order and that such sales be made in unsolicited, open market
"brokers transactions". Rules 145(d)(2) and (3) generally provide that the
foregoing limitations lapse for non-affiliates of Empire after a period of 1 or
2 years, respectively, depending upon whether certain currently available
information continues to be available with respect to Empire. Persons who may be
deemed to be affiliates of an issuer generally include individuals or entities
that control, are controlled by, or are under common control with, such issuer
and may include certain officers and directors of such issuer as well as
principal shareholders of such issuer. Under Rule 904 of Regulations S, persons
who are not "affiliates" of Empire (or who are affiliates of Empire solely by
virtue of holding a position as an officer or director of Empire) may sell
Exchangeable Shares if no "directed selling efforts" (as defined in Rule 902 of
Regulation S) are made by the seller or any of its affiliates or any person on
their behalf, no offer is made to a person in the United States, and either (i)
at the time the buy order is originated, the buyer is outside the United States,
or the seller and any person acting on behalf of the seller reasonably believes
the buyer is outside the United States, or (ii) the transaction is executed in,
on or through the facility of a recognized Stock Exchange and neither the seller
nor any person acting on behalf of the seller knows that the Transaction has
been pre-arranged with a buyer in the United States. In the case of sales by a
person who is an officer or director of Empire and is an affiliate of Empire
solely by virtue of holding that position, no selling concession, fee or other
remuneration may be paid in connection with the offer or sale other than the
usual and customary broker's commission that would be received by a person
executing the transaction as agent. Additional conditions apply to resales by
persons who are affiliates of Empire other than by virtue of holding a position
as an officer or director of Empire. There will be no listing of Exchangeable
Shares or Empire Class B Redeemable Voting Common Shares upon completion of the
Arrangement or in the foreseeable future.
The Empire Class A Common Shares issued by Empire upon the exchange of the
Exchangeable Shares, in accordance with the terms of the pairing agreement, will
be issued in reliance upon the exchange exemption provided for in Section
3(a)(9) of the 1933 Act. Section 3(a)(9) exempts securities issued in exchange
by the issuer with its existing securities holders exclusively where no
commission or other remuneration is paid or given directly or indirectly for
soliciting such exchange. The Empire Common Shares issued in exchange for the
Exchangeable Shares should be freely transferable under United States federal
securities laws, in the same manner and subject to the same limitations as the
Exchangeable Shares and Empire Voting Shares.
29
Regulation S and Rule 506 of Regulation D:
In the event that the issuance of Exchangeable Shares and Empire Class B
Redeemable Voting Common Shares to Commonwealth Shareholders cannot be issued in
reliance upon the exemption provided by Section 3(a)(10) of the 1933 Act, the
Exchangeable Shares and the Empire Voting Shares will be issued (i) to non-U.S.
persons outside the United States pursuant to an exemption from registration
provided by Regulation S and (ii) to U.S. persons or persons in the United
States in reliance upon an exemption from registration under Rule 506 of
Regulation D under the 1933 Act, in such an event Commonwealth Shareholders
shall be required to make certain representations and warranties in connection
with the issuance of the Exchangeable Shares and the Empire Voting Shares .
Exchangeable Shares and the Empire Voting Shares issued in reliance upon
exemptions from registration under Regulation S and Rule 506 of Regulation D
will not be freely tradable and may not be offered for sale, sold or otherwise
transferred or assigned for value, directly or indirectly, unless registered
under all applicable United States federal and state securities laws or in a
transaction that complies with an applicable exemption from registration under
the 1933 Act, such as that provided by Rule 144 or Rule 904, and other
applicable securities laws. In general, under Rule 144 as currently in effect, a
Commonwealth Common Shareholder who has beneficially owned the securities for at
least one year and who is not an affiliate would be entitled to sell such
securities, subject to the Rule 144 limitations described above.
Empire Class A Common Shares are anticipated to be issued by Empire in
exchange for the Exchangeable Shares in reliance upon the exchange exemption
provided for in Section 3(a)(9) of the 1933 Act. Empire Class A Common Shares
issued in exchange for the Exchangeable Shares in reliance upon Section 3(a)(9)
should have the same restrictions on resale as were applicable to the
Exchangeable Shares, described above, and have the same applicable holding
period for the purposes of Rule 144.
This summary is of a general nature only and is not intended to be, and is
not to be construed as, securities resale advice to any particular Holder.
Accordingly, each Holder is urged to consult the Holder's own professional
advisors with respect to the particular tax and legal implications of the
Arrangement to such Holder. Except as otherwise expressly stated, this summary
does not take into account any provincial, state, "bluesky" territorial or
foreign tax law or treaty.
Dividends.
Neither Empire nor Commonwealth has paid dividends to date and Empire will
not pay dividends in the foreseeable future. There is no restriction on
Commonwealth's current or future ability to pay dividends.
Prior stock purchases.
Neither Empire nor any of its directors and management have purchased any
Commonwealth shares during the past two years.
30
Expenses.
- ---------
Empire has incurred or expects to incur the following expenses in
connection with the acquisition:
Legal fees $10,000
Accounting fees $15,000
Printing costs $2,500
Filing fees $1,450
Overnight services $375
Engineer fees $3,600
Travel $1,550
Lodging $1,080
Miscellaneous $545
Interest in securities of the subject company.
Securities ownership.
- ---------------------
Currently, neither Empire nor any of its board members or officers have any
ownership (including beneficial) of Commonwealth shares.
31
SELECTED FINANCIAL DATA
Summary Financial Information of Empire (US$) (using United States generally
accepted accounting principles)
- ------------------- ----------------- -------------- -------------- --------------- -------------- -----------------
Balance Sheet As of and for As of and As of and As of and for As of and As of and for
- ------------- the 9 mos. for the 12 for the 12 the 12 mos. for the 12 the 12 mos.
ended Sept. 30, mos. ended mos. ended ended Dec. mos. ended ended Dec. 31,
2000 (unaudited) Dec. 31, 1999 Dec. 31, 1998 31, 1997 Dec. 31, 1996 1995
- ------------------- ----------------- -------------- -------------- --------------- -------------- -----------------
Working Capital $222,641 $(354,979) $4,195 $(50,703) $(164,381) $(285,458)
(deficit)
- ------------------- ----------------- -------------- -------------- --------------- -------------- -----------------
Long-term Assets 234,329 62,091 0 0 0 0
- ------------------- ----------------- -------------- -------------- --------------- -------------- -----------------
Total Assets 500,355 126,147 5,000 0 41,012 0
- ------------------- ----------------- -------------- -------------- --------------- -------------- -----------------
Long-term 0 0 0 0 0 0
Obligations
- ------------------- ----------------- -------------- -------------- --------------- -------------- -----------------
Accumulated (6,283,034) (478,056) (192,033) (200,667) (94,857) (8,633)
Earnings Deficit
- ------------------- ----------------- -------------- -------------- --------------- -------------- -----------------
Shareholders' 456,970 $(292,888) 4,195 (50,703) (164,381) (285,458)
Equity (deficit)
- ------------------- ----------------- -------------- -------------- --------------- -------------- -----------------
Statement of
Operations
- ------------------- ----------------- -------------- -------------- --------------- -------------- -----------------
Revenue 414,826 69,401 0 0 0 0
- ------------------- ----------------- -------------- -------------- --------------- -------------- -----------------
Net Income (Loss) (263,462) (670,089) (8,634) (37,368) (8,860) (6,001)
from continuing
operations
- ------------------- ----------------- -------------- -------------- --------------- -------------- -----------------
Net Income (Loss) (0.02) (0.06) (0.01) (0.02) (0.01) 0.00
from continuing
operations per
share
- ------------------- ----------------- -------------- -------------- --------------- -------------- -----------------
Net Income (Loss) (0.45) (0.06) (0.01) 0.06 0.08 (0.00)
per common share
- ------------------- ----------------- -------------- -------------- --------------- -------------- -----------------
Other information:
- ------------------- ----------------- -------------- -------------- --------------- -------------- -----------------
32
Cash dividends 0 0 0 0 0 0
declared per
common share
- ------------------- ----------------- -------------- -------------- --------------- -------------- -----------------
Ratio of earnings (35.7) (8.7) N/A N/A N/A N/A
to fixed charges
- ------------------- ----------------- -------------- -------------- --------------- -------------- -----------------
Book value per 0.03 (0.03) (0.00) (0.03) (0.13) (0.23)
share
- ------------------- ----------------- -------------- -------------- --------------- -------------- -----------------
Commonwealth was incorporated and began operations on December 14, 1997,
and accordingly, the selected financial data represented above includes
operations from that date forward. The above summary financial information of
Empire should be read in conjunction with the Annual Report to Shareholders on
Form 10KSB/A for the year ended December 31, 1999 and the Quarterly Report to
Shareholders on Form 10QSB/A for the 9 months ended September 30, 2000 which is
incorporated herein by reference. Copies of such reports are also available by
contacting the Company.
Summary Financial Information of Commonwealth (Cdn.$)
(using Canadian generally accepted accounting principles)
- ------------------------------------------- ------------------- ----------------- ---------------- -----------------
As of and for the As of and for As of and for As of and for
9 mos. ended the 12 mos. the 12 mos. the 12 mos.
Sept. 30, 2000 ended Dec. 31, ended Dec. 31, ended Dec. 31,
Balance Sheet (unaudited) 1999 1998 1997
- -------------
- ------------------------------------------- ------------------- ----------------- ---------------- -----------------
Working Capital (deficit)................. $(379,266) $(360,636) $(216,704) $66,427
- ------------------------------------------- ------------------- ----------------- ---------------- -----------------
Long-term Assets.......................... 5,618,309 4,670,911 4,486,380 3,776,037
- ------------------------------------------- ------------------- ----------------- ---------------- -----------------
Total Assets 5,857,039 4,801,703 4,694,523 4,108,477
- ------------------------------------------- ------------------- ----------------- ---------------- -----------------
Long-term Obligations..................... 0 0 0 0
- ------------------------------------------- ------------------- ----------------- ---------------- -----------------
Accumulated Deficit....................... (1,750,220) (1,408,174) (821,161) (329,623)
- ------------------------------------------- ------------------- ----------------- ---------------- -----------------
Shareholders' Equity...................... 5,239,043 4,310,275 4,287,039 3,967,350
- ------------------------------------------- ------------------- ----------------- ---------------- -----------------
Statement of Operations
- ------------------------------------------- ------------------- ----------------- ---------------- -----------------
Revenue................................... 228,933 146,148 41,973 35,158
- ------------------------------------------- ------------------- ----------------- ---------------- -----------------
Net Income (loss) from continuing (342,046) (587,013) (491,538) (100,301)
operations................................
- ------------------------------------------- ------------------- ----------------- ---------------- -----------------
Net Income (Loss) from continuing (0.02) (0.04) (0.03) (0.01)
operations per share
- ------------------------------------------- ------------------- ----------------- ---------------- -----------------
33
As of and for the As of and for As of and for As of and for
9 mos. ended the 12 mos. the 12 mos. the 12 mos.
Sept. 30, 2000 ended Dec. 31, ended Dec. 31, ended Dec. 31,
Balance Sheet (unaudited) 1999 1998 1997
- -------------
Net Income (Loss) per share (0.02) (0.04) (0.03) (0.01)
- ------------------------------------------- ------------------- ----------------- ---------------- -----------------
Other information
- ------------------------------------------- ------------------- ----------------- ---------------- -----------------
Cash dividends declared per common share 0 0 0 0
- ------------------------------------------- ------------------- ----------------- ---------------- -----------------
Ratio of earnings to fixed changes (13.3) (11.1) (19.9) N/A
- ------------------------------------------- ------------------- ----------------- ---------------- -----------------
Book value per common share 0.25 0.27 0.30 0.21
- ------------------------------------------- ------------------- ----------------- ---------------- -----------------
Commonwealth was incorporated and began operations on December 14, 1997,
and accordingly, the selected financial data represented above includes
operations from that date forward. The above summary financial information of
Commonwealth should be read in conjunction with the Audited Financial Statements
of Commonwealth for the year ended December 31, 1999 appended to this proxy
statement as Appendix B and the Unaudited Financial Statements of Commonwealth
for the 9 months ended September 30, 1999 appended to this proxy statement
Appendix B. In addition, refer to page 41 for more detailed discussion of the
history and operations of Commonwealth.
Summary of Empire Pro Forma Financial Information
Following is pro forma selected financial data which assumes the
acquisition was completed as of September 30, 2000 for the balance sheet and
January 1, 1999 with respect to the statement of operations:
-------------------------------------------------------------------------------------------------------------------
Balance Sheet Data Empire (Actual) Empire (Actual) Empire (Pro Forma) September
------------------ December 31, 1999 September 30, 2000 30, 2000
U.S. $
- -------------------------------------------------------------------------------------------------------------------
Working Capital (deficit) $(354,979) $222,641 $(281,940)
-------------------------------------------------------------------------------------------------------------------
Long-term assets 62,091 234,329 7,520,748
-------------------------------------------------------------------------------------------------------------------
Total assets 126,147 500,355 7,939,591
-------------------------------------------------------------------------------------------------------------------
Long-term obligations 0 0 0
-------------------------------------------------------------------------------------------------------------------
Total stockholders equity (292,888) 456,970 7,238,808
-------------------------------------------------------------------------------------------------------------------
Book value per share (0.03) 0.03 0.40
-------------------------------------------------------------------------------------------------------------------
34
- ------------------ -------------- ----------------------- ---------------------- ---------------------
Income Statement Empire Pro Forma Year Ended Empire actual nine Pro forma nine
Data Actual Year December 31, 1999 months ended months ended
Ended September 30, 2000 September 30, 2000
December 31,
U.S. $ 1999
- ------------------ -------------- ----------------------- ---------------------- ---------------------
Revenues $69,401 $169,992 $414,826 $569,142
- ------------------ -------------- ----------------------- ---------------------- ---------------------
Net loss from (670,089) (1,089,401) (263,462) (482,999)
continuing
operations
- ------------------ -------------- ----------------------- ---------------------- ---------------------
Loss per share (0.06) (0.07) (0.02) (0.03)
from continuing
operations
- ------------------ -------------- ----------------------- ---------------------- ---------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Other Data (Actual) year (Pro Forma) year (Actual) 9 months (Pro Forma) 9 months
- ---------- ended December ended December ended September months ended September
31, 1999 31, 1999 30, 2000 30, 2000
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Cash dividends per $0 $0 $0 $0
common share
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Book value per share (0.03) N/A 0.03 0.40
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
The above summary pro forma financial information regarding Empire should
be read in conjunction with the Unaudited Proforma Financial Statements included
in this Proxy Statement on page 10.
35
Incorporation by Reference of Information
Certain information regarding Empire is incorporated herein by reference
and is available by contacting Empire directly or through the website
www.sec.com. Such information includes without limitation the following:
- Annual Report on Form 10KSB/A for the year ended December 31, 1999
- Quarterly Report on Form 10QSB/A for the 9 months ended September 30,
2000.
- Quarterly Report on Form 10QSB/A for the 6 months ended June 30, 2000.
- Quarterly Report on Form 10QSB/A for the 3 months ended March 31,
2000.
- Report on Form 8-K/A (Omega acquisition).
- Report on Form 8-K (Talisman acquisition).
- Report on Form 8-K (One E Group acquisition).
- Report on Form 8-K (One E Group disposition).
- Report on Form 8-K (Bedsole acquisition).
POST-ACQUISITION INFORMATION ABOUT EMPIRE
Directors and Officers of Empire
The following is brief description of the current and intended management
and directors of Empire:
- --------------------------------------------------------------------------------------------------------------
Name and Municipality of Age Position Number of Empire Securities
Residence Owned
- --------------------------------------------------------------------------------------------------------------
Norman L. Peterson 61 CEO, Treasurer, Chairman of 4,390,875
(Peterson & Sons Holding Co.) the Board
Overland Park, Kansas
- --------------------------------------------------------------------------------------------------------------
Bryan S. Ferguson 38 President 32,800
Lenexa, Kansas
- --------------------------------------------------------------------------------------------------------------
John Garrison 48 Director 52,500
Overland Park, Kansas
- --------------------------------------------------------------------------------------------------------------
John R. Dixon 67 Director 72,500
Overland Park, Kansas
- --------------------------------------------------------------------------------------------------------------
Elliott M. Kaplan 49 Director 27,500
Overland Park, Kansas
- --------------------------------------------------------------------------------------------------------------
John L. Hersma 53 Director 190,000
Overland Park, Kansas
- --------------------------------------------------------------------------------------------------------------
Lorne Torhjelm 56 Director (to be appointed 1,628,888*
White Rock, BC pending transaction approval)
- --------------------------------------------------------------------------------------------------------------
Sieg Deckert 65 Director (to be appointed 889,871*
Grand Cayman, B.W.I. pending transaction approval)
- --------------------------------------------------------------------------------------------------------------
36
* Estimated number assuming approval and completion of Merger.
Norman L. Peterson has been Chief Executive Officer, Treasurer and Chairman
of the Board of Directors of Empire since it began active operations in April of
1999. From 1974 to 1979, he was a senior officer, director and stockholder of
the holding company that owned Platte Valley Bank and Trust Company as well as a
director and shareholder of the bank. From 1988 to 1996, he was chairman and
chief executive officer of Advanced Financial, Inc. a publicly held mortgage
lending financial institution located in Shawnee, Kansas. Since 1984, he has
also been president of Peterson and Sons Holding Company, a privately held
investment and financial consulting company. From the period 1996 to 1999, Mr.
Peterson operated as an independent businessman performing consulting work for
finance and banking related activities.
Bryan Ferguson is President of Empire. He is a Registered Professional
Geologist who received a Bachelor of Science Degree in Geology from Emporia
State University in 1984. He has over 15 years of experience in prospect
evaluation, prospect generation, assessment and management in the oil field and
engineering consulting industry. He began his professional career as a well-site
geologist based in western Colorado in the middle 80's and for a period of
approximately 10 years served as a project manager in environmental engineering
for IT Corporation, an engineering and consulting company. He left IT
Corporation in 1999 to join the management of Empire. His work experience
includes electric log interpretation, cuttings interpretation, geological and
geophysical data interpretation, ranking and high-grading of prospects for
formulation of exploration strategy, basin analysis, risk assessment, ultimate
potential and economic analyses, seismic interpretation, basin modelling,
stratigraphic trap modelling, evaluation of structural relief prospects,
near-surface static and velocity problems, surface topographic interpretation,
market analyses, research, economic evaluation, AFE preparation and, industry
forecast modelling.
John C. Garrison has been a director of Empire since April 1999. Mr.
Garrison is a certified public accountant with over twenty-five years of
experience in accounting, auditing and financial management. He served as
corporate secretary, director and chief accounting officer of Infinity, Inc., a
publicly traded oilfield service and oil and gas exploration and development
company from April 1995 to August 1999. He is also a director of one other
public traded energy company, Quest Resources, Inc. He is licensed to practice
public accountancy in Kansas and Missouri and has been involved in an active
practice since 1976. Mr. Garrison received a degree in business administration
and accounting from Kansas State University.
John R. Dixon has been a director of Empire since April 1999. He received a
degree from the University of Kentucky in 1958 in electrical engineering. He has
worked in the public utility industry and as a consultant to private industry
regarding rate analysis, service-contract negotiations and related functions. He
founded two consulting firms and served as director on several publicly traded
companies. Mr. Dixon served as President of Synergy, Inc. from 1978 to 1982 and
from 1982 to 1988 he served as CEO of HSD, Inc., an engineering holding company.
Since 1988, Mr. Dixon has acted as a private consultant to three private clients
of HSD, Inc. and as a consultant to the public corporation to whom HSD was sold.
37
Elliot M. Kaplan has been a director of Empire since 1999. He is a
practicing attorney and an officer and director of Daniels & Kaplan, P.C.,
Attorneys at Law where he has been employed since 1994. Mr. Kaplan received his
Bachelor of Arts Degree from Antioch University in 1978 and received both Juris
Doctor and Master of Business Administration degrees from Whittier College in
1982. Mr. Kaplan is a member of the American Bar Association, the Missouri Bar,
and the District of Columbia Bar.
John L. Hersma has been a director of Empire since 1999. A former Chief
Operating Officer with AMSCO International, a healthcare equipment manufacturer,
which was acquired by Steris, Inc. in 1996. Mr. Hersma has served in various
sales, marketing and management capacities in the health care industry, retiring
in July of 1996 to pursue personal business interests and investment strategies.
Mr. Hersma graduated in 1968 with a degree in Business Administration and
Marketing from Northern Illinois University.
Lorne Torhjelm, age 56, is the President & CEO and a director of
Commonwealth Energy Corp. He has served in these capacities since 1997. Mr.
Torhjelm is also currently President of R.N.J. Ventures Ltd., a private real
estate and financial investment corporation. Mr. Torhjelm was actively involved
in real estate investing from July 1996 to the time that he joined Commonwealth
in 1997. Mr. Torhjelm has over 30 years of experience in the oil and gas
industry, and has served as a director of a number of public and private oil and
natural gas companies. He most recently served as a director of Scimitar
Hydrocarbons Corporation, a public oil and natural gas exploration and
development company trading on the Alberta Stock Exchange (April 1995 to July
1996).
Sieg Deckert, age 65, currently serves as a director of Commonwealth Energy
Corp. He has served as a director for Commonwealth since September 1997. Mr.
Deckert has been an independent businessman with various financial investments
and land development activities since 1990. From July, 1980 to September, 1990,
Mr. Deckert, was the founder and Chairman of Muffin Break Intl. Inc., a
franchise chain of approximately 100 retail stores with operations throughout
Canada, USA, Australia and New Zealand. Prior thereto, Mr. Deckert was the
founder and President of the Tropic Sun Fruit and Nut Franchise chain which
established 19 stores throughout Ontario prior to its sale in April, 1980.
Compensation of Empire Executives
The only compensated member of Empire's management is Bryan Ferguson whose
compensation is under $100,000 US per annum. Empire plans to retain the services
of three Commonwealth executives for an aggregate salary not to exceed US$10,000
per month.
Impace on benefits, compensation of Empire management the acquisition will not
impact Empire management's employee benefits, compensation structuring, etc.
38
Principal Holders of Empire Voting Securities after Acquisition
(assuming conversion of Exchangeable Shares but excluding options and warrants)
Name and Municipality of Residence Number of Securities % of Class % of Class
Prior to Acquisition After Acquisition
- ------------------------------------- ------------------------ ------------------------- ----------------------
Norman L. Peterson 4,390,875 30% 21.8%
(Peterson & Sons Holding Co.)
Overland Park, Kansas
Lorne Torhjelm 1,628,888 N/A 8.0%
White Rock, BC
Sieg Deckert 889,871 N/A 4.4%
Vancouver, BC
OPTIONS AND WARRANTS TO PURCHASE EMPIRE COMMON SHARES
Existing Empire Options
Expiration
Name Status Number Exercise Price Date
---- ------ ------ -------------- ----
Norm Peterson Director 62,500 $0.60 March 23, 2004
John Dixon Director 75,000 $0.60 March 23, 2004
John Hersma Director 62,500 $0.60 March 23, 2004
Elliot Kaplan Director 62,500 $0.60 March 23, 2004
John Garrison Director 62,500 $0.60 March 23, 2004
Owen Enterprises LLC Former Consultant 450,000 $1.00 March 23, 2004
Allen Reeves Attorney 125,000 $1.00 August 9, 2002
Karen Taylor Consultant 50,000 $1.00 August 9, 2002
Phil Snowden Consultant 149,500 $1.00 August 9, 2002
Clark Burns Consultant 151,000 $1.00 August 9, 2002
Ted Abele Consultant 19,000 $1.00 August 9, 2002
Robert Kane Consultant 4,000 $1.00 August 9, 2002
Bryan Ferguson President 240,000 $1.00/$2.50 June 30, 2005
John Garrison Consultant 75,000 $1.00 August 9, 2002
Mike Cuniff Consultant 8,000 $2.00 December 31, 2002
-------------------
1,596,500
===================
39
Existing Empire Warrants
Name Status Number Exercise Price Expiration Date
- ---- ------ ------ -------------- ---------------
Torreon Holdings Inc. Investor 11,000,000 $3.00 June, 2001
Replacement Options and Warrants (from Empire) US$ to Cdn$ (US1.00:1.50 Cdn.)
Status (with Exercise Price
Name Commonwealth) Number (US$) Expiration Date
- ---- ------------- ------ -------------- ---------------
Lorne Torhjelm Director 83,333 $0.80 Nov. 30, 2004
93,906 $1.20 Jan. 18, 2005
Robert Stewart Director 8,444 $1.20 Dec. 21, 2003
100,000 $1.00 Oct. 23, 2005
Sieg Deckert Director 85,734 $1.20 Jan. 18, 2005
Doug Wolters Employee 16,666 $1.20 Dec. 21, 2003
16,666 $0.80 Nov. 30, 2004
8,333 $1.80 April 17, 2005
Gordon Bradford Director 41,667 $1.20 Jan. 18, 2005
Fred Chelstad Director 33,333 $1.20 Jan. 18, 2005
----------------------
488,082
======================
Note:
The above figures do not include an anticipated additional 540,000 Empire
options to be granted to members of Commonwealth management who will become
members of Empire management after the Acquisition.
Replacement Warrants
Status (with Exercise Price
Name Commonwealth) Number (US$) Expiration Date
- ---- ------------- ------ -------------- ---------------
Sieg Deckert Director 50,000 $1.20 Jan., 2002
61,602 $1.20 July, 2001
Doug Wolters Employee 7,083 $1.20 Jan., 2002
Abe Reimer 41,666 $1.20 July, 2001
Others 2,083 $1.20 July, 2001
----------------------
162,434
======================
40
Public and Insider Ownership
Upon completion of the Acquisition the following is the estimated
distribution of Empire Shares (excluding options/warrants).
Number of Shares %
----------------- ---------
Current Empire board members and management 4,766,175 23.6%
Commonwealth Management joining Empire
(Sieg Deckert, Lorne Torhjelm) 1,518,759 12.5%
Public Shareholders 12,890,886 69.9%
----------------- ---------
20,925,820 100.0%
================= ==========
Auditors, Transfer Agent
The auditors of Empire are Sartain Fishbein & Co., Tulsa, Oklahoma. No
change in auditors or transfer agent is anticipated upon completion of the
Acquisition. The Transfer Agent of Empire is Interwest Transfer Company, Salt
Lake City, Utah.
The Company has invited its principal accountant, Sartain Fischbein &
Company ("Sartain") to attend or otherwise participate in the Special Meeting
and Sartain will have the opportunity to make a statement if it desires to do
so. The Company anticipates that Sartain will be available to respond to
appropriate questions raised at the meeting.
BUSINESS OF COMMONWEALTH
Overview
Commonwealth is primarily engaged in the acquisition and exploration of
petroleum and natural gas properties in the United States. Commonwealth was
incorporated on December 14, 1997 and listed for trading on the Canadian Venture
Exchange (formerly the Alberta Stock Exchange) in 1997. Commonwealth has two
wholly owned subsidiaries, Blue Mountain Resources Inc. and Commonwealth Energy
(USA) Inc.
Properties
1. Wyoming Properties
The following are descriptions of Commonwealth's principal producing,
exploration and development properties located in the State of Wyoming, USA.
They are held by its wholly owned subsidiary Commonwealth Energy (USA) Inc.
(a) 7 Channel Sand Prospects, Powder River Basin, Weston County, Wyoming
Commonwealth owns a group of 7 Prospects located in the Powder River Basin
in Weston County, Wyoming. All of these Prospects are targeting the Fall River
(Dakota) Formation and are referred to as the Channel Sand Prospects.
41
Commonwealth purchased these 7 Prospects from a group of geologists in
Wyoming who completed geological studies from which they derived there to be
potential for economic hydrocarbons.
Commonwealth has signed an exclusive 5-year agreement with Electro Seise
Inc. of Fort Worth, Texas to employ their proprietary 3-D gravity/E geological
survey technology in the Powder River Basin of Wyoming. They have completed
their Airborne Survey on each of the above-mentioned Prospects. Two test wells
were drilled unsuccessfully to test targets suggested by this survey.
(b) Beacon Prospect, Wyoming
Commonwealth has acquired a 100% interest in a 2,215.28 acre lease known as
the Beacon Prospect in Converse County, Wyoming. The Prospect is located a few
miles south of Douglas, Wyoming in T. 32 N., Rgs. 70-71 W. Commonwealth will
retain a 25% working interest in this well and intends to farm out the balance.
Detailed correlation of the Canyon Springs interval shows two separate
sandstone units, with the upper sand completely pinching-out along the updip
(south) edge of the Prospect area. The lower, more massive sand persists
southward to the outcrop flanking LaBonte Anticline. A strong east-southeast
plunging nose can be documented with subsurface control, and parallels other
structural noses to the south associated with LaBonte Anticline. The upper
Canyon Springs sand pinchout crosses this plunging nose, forming the trap area.
Reservoir studies of other areas producing from the Canyon Springs sand
confirm the presence of a very high quality reservoir, with porosities commonly
exceeding 20% and permeabilities up to several hundred millidarcies. Secondary
objectives with shows in the immediate area include Jurassic marine sands above
the Canyon Springs, and the shallower Cretaceous Muddy, Dakota, and Lakota
sandstones. A 2,600 foot test well will evaluate the section through the Canyon
Springs sand objective. High gravity (40 degrees API) green oil is anticipated.
(c) The Seedy Draw Extension Prospect, Wyoming
Commonwealth holds a 45% working interest in 3,304 (1,486 net) acres in the
form of leases near the Giggs Thompson and Seedy Draw oil fields in the Weston
and Niobrara Counties. The lands lie in Townships 40 and 41N, Ranges 63 and 64W
in the Powder River Basin. In this area, regional stratigraphic dip is to the
southwest. Three oil-bearing target zones have been encountered in this area.
The Upper Cretaceous Turner Sandstone, and the Lower Cretaceous Muddy and Dakota
reservoirs, have formed the principal prospects to date. These lands appear to
lie over Dakota channel sands.
(d) Double Dare Prospect (Powder River Basin, Wyoming)
The prospect is located in the heart of the Powder River Basin near the
Sand Dune field (discovered by Kerr McGee). This field has produced 30 Million
Barrels of Oil.
This new exploration prospect is in the evaluation stage.
2. Texas Properties
The following are descriptions of Commonwealth's principal producing,
exploration and development properties located in the State of Texas, USA. They
are held by its wholly owned subsidiary Commonwealth Energy (USA) Inc.
42
(a) Bedsole Unit, Leon County, Texas
Commonwealth is the operator of and holds a 50% Working Interest in the
703.96 acre Bedsole Unit located in Leon County, Texas.
Commonwealth hired the engineering firm of William M. Cobb & Associates
Inc., Worldwide Petroleum Consultants to do an Engineering and Economic study of
the existing well bore on the property. The study completed on April 1, 2000
analyzed the Bossier Zone at a depth of 14,140 feet, the Cotton Valley Sand Zone
at a depth of 12,738 feet, and the Travis Peak Zone at a depth of 9,370 feet.
The results of the Engineering Study indicate Natural Gas unproven probable
Reserves in this may be in excess of 30 Billion Cubic feet of Gas with a net
probable recovery in excess of 12 Billion Cubic feet of Gas. This is the
combined total of gas reserves in the three zones behind casing in the well
based on a 160-acre spacing unit.
In addition 3D Seismic as well as Electro-Seise Inc.'s airborne Gravity
Seismic technology both indicate that there are two Pinnacle Reef potential
drilling targets contained within the 700-acre Bedsole Unit. The Bedsole Unit
lies on trend within 1.5 miles of two Reef discoveries. The Marshall A-1
discovery has to date produced 90 Billion Cubic feet of Gas in 15 years and
continues to produce 10 Million Cubic feet of Gas per Day. The Poth Discovery
has produced more than 60 Billion Cubic feet of Gas from 2 wells and current
production is more than 20 Million Cubic feet of Gas per Day. Pinnacle Gas, a
subsidiary of Western Gas Pipeline has a 20-inch pipeline within 3,000 feet of
the Amerada Hess T-BAR-X Bedsole #1 well (Bedsole #1 well).
(b) Camp Colorado Prospect; Coleman County, Texas
Commonwealth is the operator of and holds a 39% working interest in the
Camp Colorado Prospect located in Coleman County, Texas.
Coleman County is situated in north central Texas and lies on the Bend
Arch. The Bend Arch is a region well known for its concentration of oil and gas
fields. This prospect is in the northeast quarter of the county. Production in
the immediate area is primarily gas.
There are multiple target formations on the Prospect. The Duffer formation,
Caddo Limestone formation, and Marble Falls formation are 3 primary target
zones. Wells in the area drilled to each of the Duffer and Marble Falls
formations have produced in excess of 1 BCF of gas per well.
Commonwealth has drilled 2 wells that are currently producing on the
Prospect. The Warren / Thurmond #1 well was successfully drilled and completed
in July 1999. The Warren / Thurmond #2 well was successfully drilled and
completed in January / February 2000. Commonwealth is now putting together a
further development program for this Prospect.
(c) Old World Prospect, Parker County, Texas
Commonwealth owns a 50% working interest in the 3,000 acre Old World
Prospect located in Parker County, Texas.
An independent engineering report dated April 9, 1999 by Thos D. Humphery
Oil Properties, Inc. states that the 3,000 acre Old World field contains proven
and unproven gas reserves. The proved developed producing gross reserves of the
6 (six) wells currently producing are 844,980,000 cubic feet of gas.
Furthermore, the report states that there are an additional 716,361,000 cubic
43
feet of gas in gross reserves behind pipe in these 6 (six) wells. In addition to
these proven reserves, engineering opinions suggest the 3,000 acre prospect
potentially contains additional undeveloped gas reserves.
3. Oklahoma Properties
The following are descriptions of Commonwealth's principal producing,
exploration and development properties located in the State of Oklahoma. They
are held by its wholly owned subsidiary Commonwealth Energy (USA) Inc.
(a) Oklahoma Johnston & Tyler Leases
Blue Mountain Resources Inc.; a wholly owned subsidiary of Commonwealth,
holds a 50% working interest in Johnston and Tyler Lease (Contiguous), a 480
acre project located in Washington County, Oklahoma, near Bartlesville,
Oklahoma. The Johnston Lease produces oil from the Wayside sand formation from
four producing wells at a current of 155.41 bbls/mo. The Tyler Lease produces
oil from the Wayside and Bartlesville Sand formations and is currently off-line.
There are a total of 29 existing wells on the property. Current engineering
reserve reports have been order buy not yet received, as such, reserve values
have not been included herein.
(b) Spring Creek, Oklahoma
Commonwealth holds a working interest in the Spring Creek field. At the
moment, no drilling is being conducted on this site. However, in the future
there may be further exploration conducted on this property.
Management Discussion & Analysis of Commonwealth
Financing Activities:
Commonwealth raised $650,000.00 Cdn in two private placements in 1999 and
2000. The first was completed in July, 1999 raising $500,000.00 Cdn. The second
was completed between December 1999 - March 2000 and raised $150,000.00 Cdn. The
Company also raised $845,814.30 Cdn through the exercise of Warrants and Stock
Options. In addition, $1,023,048.70 US was raised through the selling of working
interests in 4 drilling projects completed between July 1999 and April 2000 in
Wyoming and Texas.
An approximate total of $1,730,000.00 US was utilized to finance the
various purchasing, leasing, drilling, and completion activities of the Wyoming
and Texas projects listed below. The following is a summary of the drilling and
completion projects completed from January, 1999 to the present: (a) Camp
Colorado Prospect (Coleman County, Texas): Warren/Thurmond #1 Well Drilled
(July/August, 1999), Warren/Thurmond #2 Well Drilled (January/February, 2000);
(b) Old World Prospect (Parker County, Texas): Acquired (March, 1999), Byrd #1
Well Reentered and Completed (October, 1999); (c) Alkali Draw Prospect
(Wyoming): F24-5 Beltch Well Drilled (September, 1999); (d) Madren Draw Prospect
(Wyoming): Driscoll 22-19 Well Drilled (April, 2000); (e) Bedsole Unit (Leon
County, Texas): Bedsole #1 Well Completion Operations (July, 2000 - Present).
Field Operations:
Commonwealth made a natural gas discovery in Coleman County, Texas on the
Prospect known as Camp Colorado. Management anticipates a development program
for this 2,600 acre Prospect will be implemented in the next 12 months. Two
successful wells have been drilled on this prospect, the Warren/Thurmond #1 and
44
the Warren/Thurmond #2. They are each producing from two different formations.
The two formations where discoveries were made are known as the Caddo Limestone
and the Duffer formations. Both formations exist in each well. The wells have
been through an evaluation period and management has decided to open up the
alternate zones in each of the wells and then proceed with an initial 3-well
development drilling plan for the prospect. The estimated cost of this drilling
plan is $400,000.00 US.
The first step will be to treat the Warren/Thurmond #1 well to unload the
water that has built up in the well preventing production of the natural gas.
Then, alternate zones will be opened in each well. Following this, the Company
plans to drill 3 additional developmental wells on the property before further
evaluating the potential of the field. Gas reserves attributed to the Caddo and
the Duffer included 297,029 MCF proved, developed producing and 523,896 MCF
proved, developed non-producing. Management intends to have an Engineering Field
Development study completed as the company goes forward with its development
plan.
Current Production Data:
- -------------------------------------------------- ----------------------- ---------------------------------
Well Name Water Production (Barrels Oil Production Gas Production
of Water) (Barrels of Oil) MCF (Thousand Cubic Feet)
- -------------------------------------------------- ----------------------- ---------------------------------
Warren/Thormond #1 0 0 Well is currently filled with
water and needs treatment.
- -------------------------------------------------- ----------------------- ---------------------------------
Warren/Thurmond #2 62.64 0 2,422
- -------------------------------------------------- ----------------------- ---------------------------------
The Bedsole #1 well on the Company's Bedsole Unit in Leon County, Texas is
currently undergoing completion operations in the Cotton Valley formation. The
estimated cost to complete the entire Cotton Valley zone is approximately $1
million US. A 3D Seismic study also suggests the potential of 2 Pinnacle Reef
targets on the Prospect. The Company will be completing an additional 3D Seismic
study and then will approach several larger oil and gas companies, offering them
the opportunity to participate in drilling for the Pinnacle Reef gas targets.
The cost to drill one Pinnacle Reef well is approximately $3 million US.
Therefore, the Company may finance this project by inviting a larger oil and gas
company fully finance the drilling and completion of the well for a portion of
the working interest.
A study will be completed on the 3,000 acre Old World Gas field in Parker
County, Texas to determine the most efficient development program to ensure
maximum recovery of the potential natural gas reserves (441,970 MCF proved,
developed producing). Currently there is production from 6 wells. The results of
the study will determine the necessary capital investment needed to maximize
daily production from this field.
45
The following table shows the production for the month of February,
2001 for 7 wells on the Old World Project in Parker County, Texas.
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Well Name Water Production (Barrels Gas Production MCF Oil Production (Barrels of
of Water) (Thousand Cubic Feet) Oil)
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Byrd Unit #1 0 588 0
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Ellis, A-2 0 1,542 0
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Lester B#3 0 2,546 0
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Leonard #1 0 420 0
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Lester B#1 0 145 0
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
LS Byrd #2 0 0 0
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Byrd #1 0 0 0
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Ellis B-3 0 0 0
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Currently, there are 5 wells producing. The number of wells producing
changes from month to month.
Commonwealth's wholly owned subsidiary 638260 Alberta Inc. owns small
Working Interests and Royalty Interests in a group of 740 proven producing oil
and natural gas wells as well as several plant facilities and gas gathering
facilities throughout Alberta, Canada. The majority of the wells are located in
the Vermilion area of East Central Alberta. 90% of the 740 wells are designated
as natural gas wells. The portfolio of oil and gas assets are fully managed by
an intermediate operator, Signalta Resources Limited. Commonwealth purchased
638260 Alberta Inc. in December, 1999. The cash flow realized in 2000 from
638260 Alberta Inc. was $101,716.28 compared with monthly costs of approximately
$1,000.00.
In the Powder River Basin of Wyoming, Commonwealth owns ten Oil & Gas
Prospects. They are as follows:
1. Seedy Draw 6. West Hay Creek
2. Double Dare 7. Hay Creek
3. Beacon 8. Jim Creek
4. Alkali Draw 9. West Fork
5. Madren Draw 10. Lodgepole Creek
Management of Commonwealth believes that a 10 well drilling program is
necessary to evaluate the potential of further development programs on the 10
Wyoming Prospects listed above. The costs to drill on each of these Prospects
vary according to the target formations depth. Drilling and Completion costs can
range from $150,000.00 to $500,000.00 US per well.
The estimated amount of capital that is needed to proceed with the
development plans on the Camp Colorado and Bedsole Prospects in Texas is
approximately $1,400,000.00 US. The estimated capital needed to properly assess
the development potential of the 10 Wyoming Prospects is approximately $3
million US. Further studies are to be completed to evaluate the necessary
capital investment necessary to extract the hydrocarbon reserves of the
Company's Johnston & Tyler Lease in Oklahoma and the Old World Prospect in
Texas.
46
Business of Empire
Introduction
Empire Energy Corporation ("Empire") is a reporting company under the US
1934 Securities Act whose common shares trade on the OTC bulletin board under
ticker symbol EECI.OB. The company is headquartered in Overland Park, Kansas
(Kansas City area). Empire was incorporated in November of 1983 in the state of
Utah under the name Medivest, Inc. Medivest engaged in various business
enterprises and eventually filed for protection under the bankruptcy laws. The
company emerged from bankruptcy and had its corporate charter reinstated in 1995
but remained inactive until 1999. At that time, Peterson & Sons Holding Company
acquired control by purchasing a majority of the then outstanding shares of
Empire from the majority shareholder. Empire has previously financed through the
issuance of convertible debentures (now converted) at $1.00 US per Empire share,
raising $500,000 in 1999. On May 17, 1999, the shareholders of Medivest approved
a change of name from Medivest Inc. to Empire Energy Corporation (reverse
merger) and Empire commenced commercial activity in the oil and gas industry.
The company was subsequently reorganized with new management with the
objective of accumulating oil and gas production and properties at a time when
oil and gas prices were at 25-year lows. The primary prospect, at inception, was
the opportunity presented in the country of Nicaragua. In the interim, the
company began participating in an exploration program in Tennessee and realized
its first revenues from that program in late 1999. In November 2000, the company
acquired a working interest in a natural gas field in Texas. An overview of
these projects as well as the company's plan for growth is provided below.
Empire is engaged in oil and natural gas exploration, development and
production operations. Empire's operations primarily involve oil and gas
exploration, development and production in the Cumberland Plateau Region of
north-central Tennessee (Overton County). Empire is also expanding its
operations into an international setting and has recently focussed in the areas
of Central America and Africa. Empire owns 51% of Industria Oklahoma-Nicaragua,
S.A., a Nicaraguan company that has been legally, technically and financially
qualified under Nicaragua's 1998 Hydrocarbon law. The company is currently
awaiting the opening of a licensing round by the country in which it anticipates
that a hydrocarbon exploration concession will be granted. The licensing round
refers to a bidding round that the Nicaraguan Hydrocarbon Law No. 286 allows for
whereby bid packages will be provided to qualified companies, bids prepared and
returned and a possible bid award made in the form of an exploration concession.
Empire has a 100% wholly-owned subsidiary named Omega International, Inc., which
operates in the country of Ghana, West Africa. Operations in this subsidiary
have been suspended pending economic and political difficulties in the West
African sub-region.
Empire's corporate strategy is to expand its domestic reserve base through
acquisitions and additional exploration and developmental drilling under its
existing oil and gas exploration program and to reinvest a substantial portion
of the cash flow generated from its domestic operations to acquire or
participate in international prospects that have the potential for larger
petroleum reserves and greater revenues.
Exploration and Development Activities
Tennessee Exploration Program
In the third quarter of 1999, Empire signed an agreement to participate in
a Joint Venture Exploration Agreement with Pryor Oil Company of Parkville,
Missouri where Empire has a 60% working interest. Pryor Oil, an unrelated entity
whose Tennessee operations are based in Livingston, Tennessee, had been engaged
47
in the evaluation of large areas of central Tennessee, where Overton County is
located, to eastern Tennessee, where significant reserves of natural gas had
been reported to have been discovered by others. Pryor planned to establish
operations and explore for oil and gas in the north-central portion of the state
and engaged Empire in a Participation Agreement to conduct the exploration
program. In this program, Empire bears its share of the acquisition, drilling,
extraction and production costs incurred and Pryor Oil is responsible for
conducting and managing all drilling, production and marketing activities to
exploit the prospects. To date, this arrangement has worked well for Empire,
producing cash flows of $20,000 to $80,000 per month and providing a gross
profit on the investment. This prospect is characterized by very shallow
reserves (less than 2,000 feet), light sweet crude (41 gravity and low sulfur),
and favorable, available leasing conditions. Since initiating this project in
mid 1999, Empire has returned a profit on its investment and expects to continue
as such over this long-term development project.
The exploration program was developed under the concept of using
technology-based criteria to search for and locate oil and gas producing
reservoirs. Target reservoirs are all present in geologic formations that are no
deeper than 2,000 feet below ground surface. Of the current producing oil wells
in the program, oil production is from depths of 835 feet and 790 feet below
ground surface.
During the fiscal year ended December 31, 1999, domestic oil sales for
Empire from Tennessee included production during the fourth quarter only. A new
field discovery well was spud on September 9, 1999 and was brought onto
production on October 5, 1999. Total production from the field during this
period (fourth quarter, fiscal year 1999) was 6,577 barrels of oil. Total field
production through October 2000 was approximately 35,065 barrels. Sales from the
program are to Somerset Refinery, Inc., Somerset, Kentucky and represented 100%
of Empire's consolidated oil revenues at this time.
The program currently consists of the oil production and an estimated seven
(7) gas wells. In November 1999, an offset well was drilled which encountered
commercial quantities of gas but the well has been shut-in awaiting a market in
which to sell the gas. The second producing oil well in the program was spud in
fiscal year 2000 (January 25, 2000) and brought onto production on March 5,
2000. During the year 2000, the program drilled an estimated nine (9) wells with
approximately 70% encountering commercial quantities of hydrocarbons. The
production is characterized as a gas-driven, fractured porosity and, as such,
quantitative volumetrics of hydrocarbons cannot be reliably estimated and thus
cannot be categorized as proved reserves. Initial production data can be
measured but due to the uncertainty of the nature and extent of the fractures in
which the hydrocarbons reside, including the aerial extent, the total volume is
unknown. To date, the three oil wells that have been placed onto production have
produced 15,000, 14,000 and 12,000 barrels of oil respectively. In addition, the
region has proven to be prolific in natural gas. Approximately 70% of the wells
drilled encounter significant natural gas. Although there are currently no gas
pipelines in which the gas can be delivered to market, dialogue with pipeline
companies was initiated in late 2000 with the anticipation that a market may be
available in 2001 in which the gas reserves may be sold. The closest pipeline at
the present time is located approximately four miles from the company's gas
reserves. The Company was advised in February 2001 that a 4" gas pipeline was
being laid into the area that would provide a market for which the company can
sell its gas reserves. According to the pipeline company, Coastal Hydrocarbons,
LLC, the pipeline system should be completed on or about June 1, 2001.
In so far as additional drilling targets are present on existing leases
that are held in the program, it is the desire to lease an extensive land block
(32,000 acres) in a region located to the east of the current program drill
sites. This acreage is believed to be host to deeper, more extensive formations.
Operating costs to drill and produce on the acreage is expected to increase
however, production of oil and gas is expected to increase as well.
Additionally, gas pipelines are present in the vicinity providing an immediate
market in which to sell any production that is encountered. In 2000, Empire
48
expended an estimated $186,000 in the program and realized revenues of
approximately $413,000. The average cost to Empire to drill a producing well in
this program was $42,000 including completion costs. Moreover, the dry hole
costs averaged approximately $12,000 per well.
The initial exploration activity has resulted in an improved exploration
database and the program is actively engaged in a leasing and exploration
program to expand activities and prospects in the region. Moreover, the operator
is currently conducting an expanded seismic shoot in an effort to further
understand the geology of the region using existing wells and existing
production horizons as control points. Planned activities include the drilling
of additional wells during the year 2001.
Nicaraguan Exploration Activities
Empire has a 51% ownership in Industria Oklahoma-Nicaragua S.A., a company
that has been technically, legally and financially qualified by the government
of Nicaragua to conduct oil exploration under a new law (circa 1998) in that
country. Industria Oklahoma-Nicaragua, S.A. along with Empire and other members
of the consortium are actively pursuing the execution of a contract with the
government of Nicaragua for a contract (oil and gas concession) allowing the
firms the rights to explore on a substantial acreage block, never before
explored in the Central American nation. In management's view, Nicaragua has not
been adequately explored and data suggests that this land mass may be host to
hydro-carbons. Empire management has traveled to the country, representatives
have met with officials and an ongoing dialogue between energy ministry
officials and company representatives are continuing. It is anticipated that
once the licensing round is officially opened by the government, the consortium
will be granted a concession. Plans are being evaluated to joint venture with a
moderate to large independent oil company to fully exploit this prospect. At
this time, the company has not identified a possible joint venture partner and
does not have an executed agreement or letter of intent. There are four other
oil companies and three individuals that own the balance of the 49% of Industria
Oklahoma-Nicaragua S.A. not owned by Empire.
Due to the sensitive nature of the process, Empire has been directed by its
consultants in the U.S. and in Nicaragua to limit public dissemination of
projections and potential success related to this project. As such, Empire has
chosen not to exploit or fully recognize all of the characteristics or
fundamentals related to its potential. Empire has been involved in and working
towards this concession for a period of nearly two years. Total funds expended
to date are approximately $250,000 and if the concession is granted, Empire's
portion of the cost to drill a first well would be approximately $1 million US.
Texas Natural Gas Prospect
Empire acquired a 44.6% working interest in a 704-acre lease located in
Leon County, Texas of which Commonwealth currently owns 50%. The Bedsole lease
has one well, drilled by Amerada Hess to 16,300 feet deep, completed and logged.
Seismic information suggests that there are two pinnacle reef structures present
on the lease that could be host to hydrocarbons. Similar structures in the area
have produced in excess of 30 BCF. A 20" gas pipeline is present within 3000
feet of the well. Empire will acquire an additional 50% working interest in the
lease at the close of the Empire transaction and will become the operator of the
lease. It is anticipated that once Empire owns 94.6% or greater that the
opportunity to do a farm-out for drilling the reefs will be increased
significantly.
Empire does not have formal reserve reports on its properties and does not claim
to have any "proven reserves".
49
Other Activities
In February 2000, the company acquired all of the outstanding common stock
of Omega International, Inc. (Omega) for 560,000 shares of the company's common
stock. The transaction was accounted for as a purchase for financial accounting
purposes. Omega is focussed on business opportunities in Africa, primarily the
purchase and resale of minerals in Ghana. Activities in this subsidiary have
been suspended due to the depressed price of gold on the international marker as
well as the economic and political unrest in the West African sub-region.
Messrs. Ferguson and Garrison received 20,000 Empire shares each as part of the
transaction in that they sold their interests in Omega to Empire. Refer to Form
8-K/A filed with the SEC dated March 23, 2001 with respect to this transaction.
In April 2000, the company acquired substantially all of the assets of
Talisman Marketing, Inc. for 562,150 shares of the company's common stock. The
objective of this acquisition was to build a "non-energy" business unit as well
as to build the asset base of the company. Subsequently, this activity lost key
personnel and has been discontinued. Refer to Form 8-K filed with the SEC dated
March 26, 2001 with respect to this transaction.
In June 2000, the company acquired a majority ownership interest in One E
Group, Inc. in exchange for a total of 846,667 shares of the company's common
stock. The objective of this acquisition was an attempt to continue construction
of the "non-energy" business unit. One E Group provides leading-edge technology
solutions to companies seeking to broaden their market penetration via the
Internet. Complementing these activities is the Company's ability to design and
host web sites. In August 2000, One E Group lost the services of critical
personnel and key proposed contracts and, as a result, the company discontinued
operations and liquidated equipment and assets in settlement of corporate
liabilities. Subsequently, the company sold its investment in One E Group and
any claims the company may have against the sellers to Norman Peterson in
exchange for 750,000 shares of Empire common stock. Subsequently, this activity
lost key personnel and has been discontinued. Refer to Form 8-K filed with the
SEC dated March 27, 2001 with respect to this transaction.
Material Agreements:
Pryor Oil Co.: Participation Agreement - The agreement dated August 6, 1999
between Pryor Oil Co. and Empire provides for Empire to participate in the
Tennessee drilling program on a 60% working interest basis. Empire has the
option to participate on a well by well basis with no obligation to proceed,
allowing it the opportunity to review technical data for each proposed well
and/or completion.
Industria Oklahoma-Nicaragua, S.A.: Participation Agreement - The agreement
dated April 24, 1999 between Industria Oklahoma-Nicaragua, S.A. and Empire
provides for Empire to fund approximately 67% of the costs through the first
well estimated at US$1.5 million. As such, Empire has and will continue to fund
all activities related to obtaining the concession and their proportionate share
of drilling the first well.
Mike Cunniff: Consulting Agreement - The agreement provides for Mr. Cunniff
to provide consulting services related to market conditions, investor relations
and public relations. The terms of the agreement are as follows: six-month term
(September 2000 through February 2001), $1,500 per month fee, 2,000 options per
month at an exercise price of $2.00 per share.
OTHER MEETING MATTERS
The Management of Empire knows of no other matters to come before the
Meeting other than those referred to in the Notice of Meeting. Should any other
matters properly come before the Meeting, the shares represented by the Proxy
solicited hereby will be voted on such matters in accordance with the best
judgment of the persons voting the proxy.
50
WHERE YOU CAN FIND MORE INFORMATION
Empire files annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any reports, statements or
other information we file at the SEC's public reference rooms in Washington,
D.C., New York, New York and Chicago, Illinois. Please call the SEC at
1-800-SEC-0330 for further information on the public reference rooms. Our SEC
filings are also available to the public on the Free Edgar website at
"http://www.freeedgar.com" and at the website maintained by the SEC at
"http://www.sec.gov".
The SEC allows us to "incorporate by reference" information into this proxy
statement, which means that we can disclose important information to you by
referring you to another document filed separately with the SEC. The information
incorporated by reference is deemed to be part of this proxy statement, except
for any information superseded by information in, or incorporated by reference
in, this proxy statement. This proxy statement incorporates by reference the
documents set forth below that we have previously filed with the SEC. These
documents contain important information about our company and its finances.
Empire SEC Filings Period
(File No. 1-10077)
- --------------------------------- ------------------------------------
Annual Report on Form 10-KSB/A Year ended December 31, 1999
Quarterly Report on Form 10-QSB/A Quarter ended March 31, 2000
Quarterly Report on Form 10-QSB/A Quarter ended June 30, 2000
Quarterly Report on Form 10-QSB/A Quarter ended September 30, 2000
Current Report on Form 8-K/A Filed on March 23, 2001
Current Report on Form 8-K Filed on March 26, 2001
Current Report on Form 8-K Filed on March 27, 2001
Current Report on Form 8-K Filed on March 28, 2001
Current Report on Form 8-K Filed on March 28, 2001
If you are a stockholder, we may have sent you some of the documents
incorporated by reference, but you can obtain any of them by contacting Empire
directly, or the SEC. Documents incorporated by reference are available from us
without charge, excluding all exhibits unless we have specifically incorporated
by reference an exhibit in this proxy statement. Stockholders may obtain
documents incorporate by reference in this proxy statement by requesting them in
writing, by e-mail or by telephone from the appropriate party at the following
address:
Empire Energy Corporation
7500 College Blvd.
Suite 1215
Overland Park, KS 66210
Attn: Corporate Secretary
Tel: (913) 469 - 5615
bryan@empireenergy.com
You should rely only on the information contained or incorporated by
reference in this proxy statement. We have not authorized anyone to provide you
with information that is different form what is contained in this proxy
statement. This proxy statement is dated March 30, 2001.
CERTIFICATES
------------
The foregoing constitutes full, true and plain disclosure of all material facts
relation to the securities of Empire assuming completion of the transactions
described herein.
/s/ Norman Peterson /s/ Bryan Ferguson
- ----------------------------- ----------------------------------
Norman Peterson Bryan Ferguson
Chief Executive Officer President
/s/ John Garrison /s/ John Hersma
- ----------------------------- ----------------------------------
John Garrison John Hersma
Director Director
Dated: March 30, 2001
51
APPENDIX A
MERGER AGREEMENT
MEMORANDUM OF AGREEMENT made as of the 12th day of December, 2000.
AMONG:
EMPIRE ENERGY CORPORATION, a corporation existing under the laws of
the State of Utah, U.S.A.
("Empire")
AND:
3828395 CANADA LTD., a company existing under the federal laws of
Canada
("Empire Exchangeco")
AND:
COMMONWEALTH ENERGY CORP., a corporation existing under the laws of
the Province of Alberta, Canada
("Commonwealth")
THIS AGREEMENT WITNESSES that in consideration of the respective covenants and
agreements herein contained, the parties hereto covenant and agree as follows:
Part 1
INTERPRETATION
Definitions
1.1 In this Agreement, unless there is something in the subject matter or
context inconsistent therewith, the following terms shall have the following
meanings respectively:
"1933 Act" means the United States Securities Act of 1933, as amended;
"ABCA" means the Alberta Business Corporations Act;
"Acquisition Proposal" means any bona fide proposal with respect to any
merger, amalgamation, arrangement, take-over bid, sale of assets (excluding
inventory sold in the ordinary course of business) representing more than
25% of the book value (on a consolidated basis) of Commonwealth's total
assets (or any lease, long-term supply agreement or other arrangement
having the same economic effect as a sale), any sale of more than 75% of
the Commonwealth Common Shares then outstanding or similar transactions
involving Commonwealth or any Material Subsidiary, or a proposal to do so,
excluding the Arrangement;
"Affected Employees" has the meaning ascribed thereto in ss.4.10;
"affiliate" has the meaning ascribed thereto in the Securities Act, unless
otherwise expressly stated herein;
"Affiliate's Letter" means a letter, to be substantially in the form and
content of Schedule A hereto;
"Appropriate Regulatory Approvals" means those sanctions, rulings,
consents, orders, exemptions, permits and other approvals (including the
lapse, without objection, of a prescribed time under a statute or
regulation that states that a transaction may be implemented if a
prescribed time lapses following the giving of notice without an objection
being made) of Governmental Entities, regulatory agencies or
self-regulatory organizations, as set out in Schedule B hereto;
"Arrangement" means an arrangement under section 192 of the CBCA on the
terms and subject to the conditions set out in the Plan of Arrangement,
subject to any amendments or variations thereto made in accordance with
section 6.1 or Article 6 of the Plan of Arrangement or made at the
direction of the Court in the Final Order;
"Arrangement Resolutions" means the special resolution of the Commonwealth
Securityholders, to be substantially in the form and content of Schedule C
annexed hereto;
"Articles of Arrangement" means the articles of arrangement of Commonwealth
in respect of the Arrangement that are required by the CBCA to be sent to
the Director after the Final Order is made;
"Business Day" means any day on which commercial banks are generally open
for business in Seattle, Washington and Vancouver, British Columbia other
than a Saturday, a Sunday or a day observed as a holiday in Overland Park,
Kansas under the laws of the State of Kansas or the federal laws of the
United States of America or in Vancouver, British Columbia under the laws
of the Province of British Columbia or the federal laws of Canada;
"CBCA" means the Canada Business Corporations Act as now in effect and as
it may be amended from time to time prior to the Effective Date;
"CDNSC" means the British Columbia and Alberta Securities Commissions;
"CDNX" means the Canadian Venture Exchange Inc., being the stock exchange
where the shares of Commonwealth are listed as of the date hereof;
2
"Circular" means the notice of the Commonwealth Meeting and accompanying
management information circular, including all appendices thereto, to be
sent to holders of Commonwealth Common Shares in connection with the
Commonwealth Meeting;
"Code" has the meaning ascribed thereto in ss.3.1(k)(ii);
"Commonwealth Common Shares" means the outstanding common shares in the
capital of Commonwealth;
"Commonwealth Documents" has the meaning ascribed thereto in ss.3.1(m);
"Commonwealth Meeting" means the special meeting of Commonwealth
Securityholders, including any adjournment thereof, to be called and held
in accordance with the Interim Order to consider the Arrangement;
"Commonwealth Options" means the Commonwealth Common Share purchase options
being outstanding and unexercised on the Effective Date;
"Commonwealth Securityholders" means the holders of Commonwealth Common
Shares, Commonwealth Warrants and Commonwealth Options, collectively;
"Commonwealth Stock Options" means those options to purchase Commonwealth
shares described on Schedule G hereto;
"Commonwealth Warrants" means the outstanding non-transferable warrants of
Commonwealth exercisable for Commonwealth Common Shares as described in
Schedule G hereto;
"Confidentiality Agreement" means the confidentiality provisions of the
letter of intent dated October 23, 2000 between Empire and Commonwealth;
"Continuance" means the change of legal domicile of Commonwealth from the
ABCA to the CBCA;
"Court" means the Court of Queen's Bench of Alberta;
"Depositary" means CIBC Mellon Trust Company at its offices set out in the
letter of transmittal and election form for use by holders of Commonwealth
Common Shares, in the form accompanying the Circular;
"Director" means the Director appointed pursuant to section 260 of the
CBCA;
"Dissent Rights" means the rights of dissent in respect of the Continuance
described in section 3.1 of the Plan of Arrangement;
"Dissenting Shareholder" has the meaning ascribed thereto in the Plan of
Arrangement;
3
"Effective Date" means the date shown on the certificate of arrangement to
be issued by the Director under the CBCA giving effect to the Arrangement
provided that such date occurs on or prior to the Termination Date;
"Effective Time" has the meaning ascribed thereto in the Plan of
Arrangement;
"Empire Common Shares" means the shares of common stock in the capital of
Empire;
"Empire Holdings" means Empire Holdings Limited, a company existing under
the federal laws of Canada which, at the time of the consummation of the
Arrangement, will be an indirect wholly-owned subsidiary of Empire;
"Empire Options and Warrants" means those options and warrants to purchase
Empire shares set forth on Schedule H hereto;
"Empire Parties" means Empire, Empire Holdings and Empire Exchangeco;
"Environmental Laws" means all applicable Laws, including applicable common
law, relating to the protection of the environment and public health and
safety;
"Environmental Permits" has the meaning ascribed thereto in ss.3.1(j)(ii);
"ERISA" has the meaning ascribed thereto in ss.3.1(l)(i);
"Exchange Act" has the meaning ascribed thereto in ss.2.6(d);
"Exchange Ratio" has the meaning ascribed thereto in the Plan of
Arrangement;
"Exchangeable Shares" means the non-voting exchangeable shares in the
capital of Empire Exchangeco, having substantially the rights, privileges,
restrictions and conditions set out in Appendix 1 to the Plan of
Arrangement;
"Exchange Trust Agreement" means an agreement to be made between Empire,
Empire Exchangeco and the Trustee in connection with the Plan of
Arrangement substantially in the form and content of Schedule F annexed
hereto, with such changes thereto as the parties hereto, acting reasonably,
may agree;
"Final Order" means the final order of the Court approving the Arrangement
as such order may be amended by the Court at any time prior to the
Effective Date or, if appealed, then, unless such appeal is withdrawn or
denied, as affirmed;
"Form SB2" has the meaning ascribed thereto in ss.2.6(b);
"Form S-8" has the meaning ascribed thereto in ss.2.6(c);
"Governmental Entity" means any
4
(a) multinational, federal, provincial, state, regional, municipal,
local or other government, governmental or public department, central
bank, court, tribunal, arbitral body, commission, board, bureau or
agency, domestic or foreign,
(b) any subdivision, agent, commission, board, or authority of any of
the foregoing, or
(c) any quasi-governmental or private body exercising any regulatory,
expropriation or taxing authority under or for the account of any of
the foregoing;
"Hazardous Substance" means any pollutant, contaminant, waste of any
nature, hazardous substance, hazardous material, toxic substance, dangerous
substance or dangerous good as defined or identified in or regulated by any
Environmental Law;
"holders" means, when used with reference to the Commonwealth
Securityholders, the holders of Commonwealth Common Shares, Commonwealth
Options and Commonwealth Warrants shown from time to time in the register
or other record maintained by or on behalf of Commonwealth in respect of
such Commonwealth securities and, when used with reference to the
Exchangeable Shares, means the holders of Exchangeable Shares shown from
time to time in the register maintained by or on behalf of Empire
Exchangeco in respect of the Exchangeable Shares;
"including" means including without limitation;
"Information" has the meaning ascribed thereto in ss.4.7(b);
"Interim Order" means the interim order of the Court, as the same may be
amended, in respect of the Arrangement, as contemplated by ss.2.3;
"Information" has the meaning ascribed thereto in ss.4.7(b);
"Laws" means all statutes, regulations, statutory rules, orders, and terms
and conditions of any grant of approval, permission, authority or license
of any court, Governmental Entity, statutory body (including the CDNX and
OTC Bulletin Board and the NASDAQ-AMEX Market) or self-regulatory
authority, and the term "applicable" with respect to such Laws and in the
context that refers to one or more Persons, means that such Laws apply to
such Person or Persons or its or their business, undertaking, property or
securities and emanate from a Governmental Entity having jurisdiction over
the Person or Persons or its or their business, undertaking, property or
securities;
"Material Adverse Change", when used in connection with Empire or
Commonwealth, means any change, effect, event or occurrence with respect to
its condition (financial or otherwise), properties, assets, liabilities,
obligations (whether absolute, accrued conditional or otherwise),
businesses, operations or results of operations or those of its
subsidiaries that is, or would reasonably be expected to be, material and
adverse to the business, operations or financial condition of such party
and its subsidiaries taken as a whole other than any change, effect, event
or occurrence
5
(a) relating to the Canadian or United States' economy or securities
markets in general, or
(b) affecting the Canadian or United States oil and gas industry in
general;
"Material Adverse Effect" when used in connection with Empire or
Commonwealth, means any effect that is, or would reasonably be expected to
be, material and adverse to the business, operations or financial condition
of such party and its subsidiaries taken as a whole;
"Material Subsidiary" means each subsidiary of Commonwealth or Empire, the
total assets of which constituted more than ten percent of the consolidated
assets of Commonwealth or Empire or the total revenues of which constituted
more than ten percent of the consolidated revenues of Commonwealth or
Empire, in each case as set out in the financial statements of Commonwealth
or Empire for the period ended September 30, 2000 and including each
affiliate of Commonwealth or Empire that directly or indirectly holds an
equity interest in each such subsidiary;
"Person" includes any individual, firm, partnership, joint venture, venture
capital fund, limited liability company, unlimited liability company,
association, trust, trustee, executor, administrator, legal personal
representative, estate, group, body corporate, corporation, unincorporated
association or organization, Governmental Entity, syndicate or other
entity, whether or not having legal status;
"Plan of Arrangement" means the plan of arrangement substantially in the
form and content of Schedule D annexed hereto and any amendments or
variations thereto made in accordance with section 6.1 or Article 6 of the
Plan of Arrangement or made at the direction of the Court in the Final
Order;
"Pre-Effective Date Period" shall mean the period from and including the
date hereof to and including the Effective Time on the Effective Date;
"Publicly Disclosed" means disclosed by Commonwealth or Empire in any news
release or in a public filing or news release from January 1, 1999 to and
including the date of this Agreement;
"Redeemable Voting Shares" means the $0.0001 par value redeemable voting
shares to be created in the capital of Empire and having substantially the
rights, privileges, restrictions and conditions described in the Support
Agreement and which will be issued in pairs on a one-for-one basis with the
Exchangeable Shares;
"Replacement Option" has the meaning ascribed thereto in ss.2.4(d);
"Replacement Warrant" has the meaning ascribed thereto in ss.2.4(c);
"Representatives" has the meaning ascribed thereto in ss.4.7(a);
"SEC" means the United States Securities and Exchange Commission;
6
"Securities Acts" means the Securities Act (British Columbia) and the
Securities Act (Alberta) and the rules, regulations and policies made
thereunder, as now in effect and as they may be amended from time to time
prior to the Effective Date;
"Specified Empire Event" means the occurrence of a Material Adverse Change
with respect to Empire, or a breach by a Empire Party of its obligations
hereunder, if by reason thereof, and taking into account ss.5.4,
Commonwealth would be entitled to rely on the failure of a condition set
forth in sections 5.3(a), 5.3(b) or 5.3(c) as a reason not to complete the
Arrangement;
"subsidiary" means, with respect to a specified body corporate, any body
corporate of which more than 50% of the outstanding shares ordinarily
entitled to elect a majority of the board of directors thereof (whether or
not shares of any other class or classes shall or might be entitled to vote
upon the happening of any event or contingency) are at the time owned
directly or indirectly by such specified body corporate and shall include
any body corporate, partnership, joint venture or other entity over which
it exercises direction or control or which is in a like relation to a
subsidiary;
"Superior Proposal" means any bona fide proposal by a third party directly
or indirectly, to acquire assets representing more than 25% of the book
value (on a consolidated basis) of Commonwealth's total assets or more than
25% of the outstanding Commonwealth Common Shares, whether by way of
merger, amalgamation, arrangement, take-over bid, sale of assets or
otherwise, and that in the good faith determination of the Board of
Directors of Commonwealth after consultation with financial advisors and
outside counsel
(a) is reasonably capable of being completed, taking into account all
legal, financial, regulatory and other aspects of such proposal and
the party making such proposal, and
(b) would, if consummated in accordance with its terms, result in a
transaction
(i) more favourable to the Commonwealth Securityholders than the
transaction contemplated by this Agreement, and
(ii) having a blended value per Commonwealth Common Share greater
than the per share value attributable thereto under the
transaction contemplated by this Agreement;
"Support Agreement" means an agreement to be made between Empire, Empire
Holdings and Empire Exchangeco substantially in the form and content of
Schedule E annexed hereto, with such changes thereto as the parties hereto,
acting reasonably, may agree;
"Termination Date" means February 28, 2001, or such later date as may be
mutually agreed by the parties to this Agreement;
7
"Trustee" means the trustee to be chosen by Empire and Commonwealth, acting
reasonably, to act as trustee under the Exchange Trust Agreement;
"Urax" and "Uraxes" have the respective meanings ascribed thereto
in ss.3.1(k)(iii);
"Urax Returns" means all returns, declarations, reports, information
returns and statements required to be filed with any taxing authority
relating to Taxes;
Interpretation Not Affected by Headings, etc.
1.2 The division of this Agreement into Parts, sections and other portions and
the insertion of headings are for convenience of reference only and shall not
affect the construction or interpretation hereof. Unless otherwise indicated,
all references to an "Part" or "section" followed by a number and/or a letter
refer to the specified Part or section of this Agreement. The terms "this
Agreement", "hereof", "herein" and "hereunder" and similar expressions refer to
this Agreement (including the Schedules hereto) and not to any particular Part,
section or other portion hereof and include any agreement or instrument
supplementary or ancillary hereto.
Currency
1.3 Unless otherwise specifically indicated, all sums of money referred to in
this Agreement are expressed in lawful money of the United States of America.
Number, etc.
1.4 Unless the context otherwise requires, words importing the singular shall
include the plural and vice versa and words importing any gender shall include
all genders.
Date For Any Action
1.5 In the event that any date on which any action is required to be taken
hereunder by any of the parties hereto is not a Business Day, such action shall
be required to be taken on the next succeeding day which is a Business Day.
Entire Agreement
1.6 This Agreement and the agreements and other documents herein referred to
constitute the entire agreement between the parties hereto pertaining to the
terms of the Arrangement and supersede all other prior agreements,
understandings, negotiations and discussions, whether oral or written, between
the parties hereto with respect to the terms of the Arrangement.
Schedules
1.7 The following Schedules are annexed to this Agreement and are hereby
incorporated by reference into this Agreement and form part hereof:
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Schedule A - Affiliate's Letter
Schedule B - Appropriate Regulatory Approvals
Schedule C - Arrangement Resolutions
Schedule D - Plan of Arrangement
Schedule E - Support Agreement
Schedule F - Exchange Trust Agreement
Schedule G - Commonwealth Capitalization Table
Schedule H - Empire Capitalization Table
Accounting Matters
1.8 Unless otherwise stated, all accounting terms used in this Agreement in
respect of Commonwealth shall have the meanings attributable thereto under
Canadian generally accepted accounting principles and all determinations of an
accounting nature in respect of Commonwealth required to be made shall be made
in a manner consistent with Canadian generally accepted accounting principles
and past practice. Unless otherwise stated, all accounting terms used in this
Agreement in respect of Empire shall have the meanings attributable thereto
under United States generally accepted accounting principles and all
determinations of an accounting nature required to be made in respect of Empire
shall be made in a manner consistent with United States generally accepted
accounting principles and past practice.
Knowledge
1.9 Each reference herein to the knowledge of a party means, unless otherwise
specified, the existing knowledge of such party without specific or special
inquiry.
Part 2
THE ARRANGEMENT
Implementation Steps by Commonwealth
2.1 Commonwealth covenants in favour of the Empire Parties that Commonwealth
shall:
(a) apply to the Registrar of Corporations (Alberta) for permission to
continue Commonwealth from the jurisdiction of the ABCA to the CBCA;
(b) subject to ss.2.5, as soon as reasonably practicable, apply in a manner
acceptable to the Empire Parties, acting reasonably, under section 186 of
the ABCA for the Interim Order, and thereafter proceed with and diligently
seek the Interim Order;
(c) subject to ss.2.5 convene and hold the Commonwealth Meeting for the
purpose of considering the Continuance and the Arrangement Resolutions (and
for any other proper purpose as may be set out in the notice for such
meeting);
9
(d) subject to obtaining the approvals as are required by the Interim
Order, proceed with and diligently pursue the application to the Court for
the Final Order; and
(e) subject to obtaining the Final Order and the satisfaction or waiver of
the other conditions herein contained in favour of each party, send to the
Director, for endorsement and filing by the Director, the Articles of
Arrangement and such other documents as may be required in connection
therewith under the CBCA to give effect to the Arrangement.
Implementation Steps by Empire Parties
2.2 The Empire Parties covenant in favour of Commonwealth that, on or prior to
the Effective Date and subject to the satisfaction or waiver of the other
conditions herein contained in favour of each such party:
(a) Empire, Empire Holdings and Empire Exchangeco shall execute and deliver
the Support Agreement;
(b) Empire and Empire Exchangeco shall execute and deliver the Exchange
Trust Agreement; and
(c) Empire shall issue the Redeemable Voting Shares in accordance with the
Support Agreement at the Effective Time.
Interim Order
2.3 The notice of motion for the application referred to in ss.2.1(b) shall
request that the Interim Order provide:
(a) for the class of Persons to whom notice is to be provided in respect of
the Arrangement and the Commonwealth Meeting and for the manner in which
such notice is to be provided;
(b) that the requisite approval for the Arrangement Resolutions shall be 66
2/3% of the votes cast on the Arrangement Resolutions (i) by holders
present in person or by proxy of Commonwealth Common Shares and also (ii)
by 66?% of Commonwealth Securityholders present in person or by proxy at
the Commonwealth Meeting (such that for such additional vote, each holder
of Commonwealth Common Shares is entitled to one vote for each Commonwealth
Common Share held, each holder of Commonwealth Options is entitled to one
vote for each Commonwealth Common Share such holder would have received on
a valid exercise of Commonwealth Options and each holder of Commonwealth
Warrants is entitled to one vote for each Commonwealth Common Share such
holder would have received on a valid exercise of Commonwealth Warrants);
(c) that, in all other respects, the terms, restrictions and conditions of
the by-laws and articles of Commonwealth, including quorum requirements and
all other matters, shall apply in respect of the Commonwealth Meeting; and
(d) for confirmation of the Dissent Rights.
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Articles of Arrangement
2.4 The Articles of Arrangement shall, with such other matters as are necessary
to effect the Arrangement, and all as subject to the provisions of the Plan of
Arrangement, provide substantially as follows:
(a) each outstanding Commonwealth Common Share that is not held by a holder
who has exercised its Dissent Rights and is ultimately entitled to be paid
the fair value of the Commonwealth Common Shares (other than Commonwealth
Common Shares held by Empire or any affiliate thereof), will be transferred
by the holder thereof to Empire Exchangeco in exchange for that number of
fully paid and non-assessable Exchangeable Shares and Redeemable Voting
Shares, as the case may be, equal to the Exchange Ratio, and the name of
each such holder of Commonwealth Common Shares will be removed from the
register of holders of Commonwealth Common Shares and added to the register
of holders of Exchangeable Shares and Redeemable Voting Shares, as the case
may be, and Empire Exchangeco will be recorded as the registered holder of
such Commonwealth Common Shares so exchanged and will be deemed to be the
legal and beneficial owner thereof;
(b) Commonwealth Common Shares held by Dissenting Shareholders who are
ultimately entitled to be paid the fair value of the Commonwealth Common
Shares held by them shall also be so transferred to Empire Exchangeco and
Commonwealth Common Shares held by Empire or any affiliate thereof will be
transferred by the holder thereof, without any act or formality on its
part, to Empire Exchangeco in exchange for that number of fully paid and
non-assessable Exchangeable Shares and Redeemable Voting Shares equal to
the Exchange Ratio, and the name of each such holder of Commonwealth Common
Shares will be removed from the register of holders of Commonwealth Common
Shares and added to the register of holders of Exchangeable Shares and
Redeemable Voting Shares and Empire Exchangeco will be recorded as the
registered holder of such Commonwealth Common Shares so exchanged and will
be deemed to be the legal and beneficial owner of such Commonwealth Common
Shares;
(c) each Commonwealth Warrant shall be transferred by the holder thereof,
without any act or formality on its part, to Empire in exchange for that
number of fully paid and non-assessable warrants ("Replacement Warrants")
proportionate to the Exchange Ratio with the exercise price appropriately
adjusted by the Exchange Ratio; and
(d) each Commonwealth Option shall be exchanged for an option (a
"Replacement Option") to purchase that number of Exchangeable Shares
proportionate to the Exchange Ratio with the exercise price appropriately
adjusted by the Exchange Ratio.
Circular
2.5 As promptly as practicable after the execution and delivery of this
Agreement, Empire and Commonwealth shall prepare the Circular together with any
other documents required by the Securities Acts or other applicable Laws in
connection with the Arrangement, and as promptly as practicable after the
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execution and delivery of this Agreement, with a target date of January 8, 2001,
Commonwealth shall cause the Circular and other documentation required in
connection with the Commonwealth Meeting to be sent to each holder of
Commonwealth Common Shares, Commonwealth Warrants and Commonwealth Options and
filed as required by the Interim Order and applicable Laws.
Securities Compliance
2.6 (a) Empire shall use all reasonable efforts to obtain any necessary orders
required from the CDNSC and other applicable Canadian securities
authorities to permit the first resale of
(i) the Exchangeable Shares and Redeemable Voting Shares issued
pursuant to the Arrangement,
(ii) the Empire Common Shares issued upon exchange of the Exchangeable
Shares (and concurrent redemption of the Redeemable Voting Shares)
from time to time, and
(iii) the Empire Common Shares issued from time to time upon the
exercise of the Replacement Options and Replacement Warrants,
in each case without qualification with or approval of or the filing of any
prospectus or similar document, or the taking of any proceeding with, or
the obtaining of any further order, ruling or consent from, any
Governmental Entity or regulatory authority under any Canadian federal,
provincial or territorial securities or other Laws or pursuant to the rules
and regulations of any regulatory authority administering such Laws, or the
fulfilment of any other legal requirement in any such jurisdiction (other
than, with respect to such first resales, any restrictions on transfer by
reason of, among other things, a holder being a "control person" of Empire
or Commonwealth for purposes of Canadian federal, provincial or territorial
securities Laws).
(b) As promptly as practicable after the date hereof, Empire shall file, if
determined to be necessary, a registration statement on Form SB2 (or other
applicable form) (the "Form SB2") in order to register under the 1933 Act
the Empire Common Shares to be issued from time to time after the Effective
Time upon exchange of the Exchangeable Shares (and redemption of the
Redeemable Voting Shares) and shall use its reasonable efforts to cause the
Form SB2 to become effective and to maintain the effectiveness of such
registration for the period that such Exchangeable Shares remain
outstanding.
(c) As promptly as practicable after the Effective Date, Empire shall file
a registration statement on Form S-8 (or other applicable form) (the "Form
S-8") in order to register under the 1933 Act those Empire Common Shares to
be issued from time to time after the Effective Time upon the exercise of
the Replacement Options and Replacement Warrants.
(d) Commonwealth and Empire shall take all such steps as may be required to
cause the transactions contemplated by Part 2 hereof and any other
dispositions of Commonwealth equity securities and/or acquisitions of
Empire equity securities (including, in each case derivative securities) in
connection with this Agreement or the transactions contemplated hereby by
any individual who is a director or officer of Commonwealth, to be exempt
under Rule 16b-3 promulgated under the United States Securities Exchange
Act of 1934, as amended (the "Exchange Act").
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Preparation of Filings
2.7 Empire and Commonwealth shall cooperate in:
(a) the preparation of any application for the orders and the preparation
of any required registration statements and any other documents reasonably
deemed by Empire or Commonwealth to be necessary to discharge their
respective obligations under United States and Canadian federal,
provincial, territorial or state securities Laws in connection with the
Arrangement and the other transactions contemplated hereby;
(b) the taking of all such action as may be required under any applicable
United States and Canadian federal, provincial, territorial or state
securities Laws (including "blue sky laws") in connection with the issuance
of the Exchangeable Shares and the Empire Common Shares in connection with
the Arrangement or the exercise of the Replacement Options and Replacement
Warrants; provided, however, that with respect to the United States "blue
sky" and Canadian provincial qualifications neither Empire nor Commonwealth
shall be required to register or qualify as a foreign corporation or to
take any action that would subject it to service of process in any
jurisdiction where such entity is not now so subject, except as to matters
and transactions arising solely from the offer and sale of the Exchangeable
Shares and the Redeemable Voting Shares and, if applicable, the listing of
Empire Common Shares on the CDNX; and
(c) the taking of all such action as may be required under the ABCA and
CBCA in connection with the transactions contemplated by this Agreement and
the Plan of Arrangement.
2.8 Each of Empire and Commonwealth shall furnish to the other all such
information concerning it and its securityholders as may be required (and, in
the case of its securityholders, available to it) for the effectuation of the
actions described in sections 2.5 and 2.6 and the foregoing provisions of this
ss.2.8, and each covenants that no information furnished by it (to its knowledge
in the case of information concerning its shareholders) in connection with such
actions or otherwise in connection with the consummation of the Arrangement and
the other transactions contemplated by this Agreement will contain any untrue
statement of a material fact or omit to state a material fact required to be
stated in any such document or necessary in order to make any information so
furnished for use in any such document not misleading in the light of the
circumstances in which it is furnished.
2.9 Empire and Commonwealth shall each promptly notify the other if at any time
before or after the Effective Time it becomes aware that the Circular or an
application for an order or a registration statement described in ss.2.6
contains any untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements contained
therein not misleading in light of the circumstances in which they are made, or
that otherwise requires an amendment or supplement to the Circular or such
application or registration statement. In any such event, Empire and
Commonwealth shall cooperate in the preparation of a supplement or amendment to
the Circular or such other document, as required and as the case may be, and, if
required, shall cause the same to be distributed to shareholders of Empire or
Commonwealth and/or filed with the relevant securities regulatory authorities.
13
2.10 Commonwealth shall ensure that the Circular complies with all applicable
Laws and, without limiting the generality of the foregoing, that the Circular
does not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
contained therein not misleading in light of the circumstances in which they are
made (other than with respect to any information relating to and provided by the
Empire Parties or any third party that is not an affiliate of Commonwealth).
Without limiting the generality of the foregoing, Commonwealth shall ensure that
the Circular provides Commonwealth Securityholders with information in
sufficient detail to permit them to form a reasoned judgment concerning the
matters to be placed before them at the Commonwealth Meeting and Empire shall
provide all information regarding it necessary to do so.
2.11 Empire shall ensure that the Form SB2 and Form S-8 comply with all
applicable Laws and, without limiting the generality of the foregoing, that such
documents do not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements contained therein not misleading in light of the circumstances in
which they are made (other than with respect to any information relating to and
provided by Commonwealth or any third party that is not an affiliate of Empire)
and Commonwealth shall provide all information regarding it necessary to do so.
Part 3
REPRESENTATIONS AND WARRANTIES
Representations and Warranties of Commonwealth
3.1 Commonwealth represents and warrants to and in favour of the Empire Parties
as follows and acknowledges that the Empire Parties are relying upon such
representations and warranties in connection with the matters contemplated by
this Agreement:
(a) Organization.
(i) Each of Commonwealth and the Material Subsidiaries has been duly
incorporated or formed under all applicable Laws, is validly
subsisting and has full corporate or legal power and authority to own
its properties and conduct its businesses as currently owned and
conducted. All of the outstanding shares and other ownership interests
of the Material Subsidiaries which are held directly or indirectly by
Commonwealth are validly issued, fully paid and non-assessable and all
such shares and other ownership interests are owned directly or
indirectly by Commonwealth, free and clear of all material liens,
claims or encumbrances, except as set forth in the Commonwealth
Disclosure Letter or pursuant to restrictions on transfers contained
in constating documents, and except as aforesaid there are no
outstanding options, rights, entitlements, understandings or
commitments (contingent or otherwise) regarding the right to acquire
any such shares or other ownership interests in any of the Material
Subsidiaries. Commonwealth has disclosed in the Commonwealth
Disclosure Letter the names and jurisdictions of incorporation of each
of the Material Subsidiaries.
14
(ii) Neither Commonwealth nor any Material Subsidiary has any minority
interest in any other corporation or entity, which minority interest
is material in relation to the consolidated financial position of
Commonwealth.
(b) Capitalization. The authorized capital of Commonwealth consists of an
unlimited number of Commonwealth Common Shares and an unlimited number of
preferred shares, issuable in series. As of the date of this Agreement
there are 34,578,544 Common Shares issued and outstanding, nil preferred
shares issued and the number of Common Shares issuable on the exercise of
Commonwealth Options and Warrants is 5,903,116 as more particularly
described in Schedule G and including a 2 million unit private placement
which is intended to close before the Effective Date although the failure
to so close this private placement will not affect the other terms and
conditions hereof. Except as described in the preceding sentences of this
ss.3.1(b), there are no options, warrants, conversion privileges or other
rights, agreements, arrangements or commitments (pre-emptive, contingent or
otherwise) obligating Commonwealth or any Material Subsidiary to issue or
sell any shares of Commonwealth or any of the Material Subsidiaries or
securities or obligations of any kind convertible into or exchangeable for
any shares of Commonwealth, any Material Subsidiary or any other Person,
nor is there outstanding any stock appreciation rights, phantom equity or
similar rights, agreements, arrangements or commitments based upon the book
value, income or any other attribute of Commonwealth or any subsidiary.
There have been no Commonwealth Common Shares issued or purchased for
cancellation since December 31, 1998. All outstanding Commonwealth Common
Shares have been duly authorized and are validly issued and outstanding as
fully paid and non-assessable shares, free of pre-emptive rights (except
the 2 million units for which all funds have not yet been received). There
are no outstanding bonds, debentures or other evidences of indebtedness of
Commonwealth or any subsidiary having the right to vote (or that are
convertible for or exercisable into securities having the right to vote)
with the holders of the Commonwealth Common Shares on any matter. Except as
set forth in the Commonwealth Disclosure Letter, there are no outstanding
contractual obligations of Commonwealth or any of the Material Subsidiaries
to repurchase, redeem or otherwise acquire any of its outstanding
securities or with respect to the voting or disposition of any outstanding
securities of any of the Material Subsidiaries.
(c) Authority and No Violation.
(i) Commonwealth has the requisite corporate power and authority to
enter into this Agreement and to perform its obligations hereunder.
The execution and delivery of this Agreement by Commonwealth and the
consummation by Commonwealth of the transactions contemplated by this
Agreement have been duly authorized by its Board of Directors and no
other corporate proceedings on its part are necessary to authorize
this Agreement, or the transactions contemplated hereby other than:
15
(A) with respect to the Circular and other matters relating
solely thereto, including the implementation of the Arrangement,
the approval of the Board of Directors of Commonwealth; and
(B) with respect to the completion of the Arrangement, the
approval of the Commonwealth Securityholders.
(ii) This Agreement has been duly executed and delivered by
Commonwealth and constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms, subject to
bankruptcy, insolvency and other applicable Laws affecting creditors'
rights generally, and to general principles of equity and to the fact
that the Currency Act (Canada) precludes a court in Canada from giving
judgment in' any currency other than Canadian currency.
(iii) The Board of Directors of Commonwealth has
(A) determined unanimously that the Arrangement is fair to the
holders of the Commonwealth Common Shares and is in the best
interests of Commonwealth,
(B) has requested an opinion from Ross Glanville & Associates
Ltd. to the effect that, as of the date of this Agreement, the
Exchange Ratio or the Arrangement is fair from a financial point
of view to the holders of the Commonwealth Common Shares, and
(C) determined unanimously to recommend that the holders of the
Commonwealth Common Shares vote in favour of the Arrangement.
Commonwealth is not subject to a shareholder rights plan or
"poison pill" or similar plan.
(iv) The approval of this Agreement, the execution and delivery by
Commonwealth of this Agreement and the performance by it of its
obligations hereunder and the completion of the Arrangement and the
transactions contemplated thereby, will not, except as disclosed in
the Commonwealth Disclosure Letter:
(A) result in a violation or breach of, require any consent to be
obtained under or give rise to any termination, purchase or sale
rights or payment obligation under any provision of:
(I) its or any Material Subsidiary's certificate of
incorporation, articles, by-laws or other charter documents,
including any unanimous shareholder agreement or any other
agreement or understanding relating to ownership of shares
or other interests or to corporate governance with any party
holding an ownership interest in any Material Subsidiary;
16
(II) subject to obtaining the Appropriate Regulatory
Approvals relating to Commonwealth, any Laws, judgment or
decree except to the extent that the violation or breach of,
or failure to obtain any consent under, any Laws, judgment
or decree would not, individually or in the aggregate, have
a Material Adverse Effect on Commonwealth; or
(III) subject to obtaining the Appropriate Regulatory
Approvals relating to Commonwealth and except as would not,
individually or in the aggregate, have a Material Adverse
Effect on Commonwealth, any material contract, agreement,
license, franchise or permit to which Commonwealth or any
Material Subsidiary is party or by which it is bound or
subject or is the beneficiary;
(B) give rise to any right of termination or acceleration of
indebtedness of Commonwealth or any subsidiary, or cause any such
indebtedness to come due before its stated maturity or cause any
available credit of Commonwealth or any subsidiary to cease to be
available other than as would not, individually or in the
aggregate, have a Material Adverse Effect on Commonwealth;
(C) except as would not, individually or in the aggregate, have a
Material Adverse Effect on Commonwealth, result in the imposition
of any encumbrance, charge or lien upon any of its assets or the
assets of any Material Subsidiary, or restrict, hinder, impair or
limit the ability of Commonwealth or any Material Subsidiary to
carry on the business of Commonwealth or any Material Subsidiary
as and where it is now being carried on; or
(D) result in any payment (including severance, unemployment
compensation, golden parachute, bonus or otherwise) becoming due
to any director or employee of Commonwealth or any subsidiary or
increase any benefits otherwise payable under any Commonwealth
Plan or result in the acceleration of time of payment or vesting
of any such benefits, including the time of exercise of stock
options.
No consent, approval, order or authorization of, or declaration or filing
with, any Governmental Entity is required to be obtained by Commonwealth
and its subsidiaries in connection with the execution and delivery of this
Agreement or the consummation by Commonwealth of the transactions
contemplated hereby other than (A) any approvals required by the Interim
Order, (B) the Final Order, (C) filings with the Director under the CBCA,
(D) the Appropriate Regulatory Approvals relating to Commonwealth and (E)
any other consents, approvals, orders, authorizations, declarations or
filings of or with a Governmental Entity which, if not obtained, would not,
individually or in the aggregate, have a Material Adverse Effect on
Commonwealth.
17
(d) No Defaults. Subject to obtaining the Appropriate Regulatory Approvals
relating to Commonwealth and except as disclosed in the Commonwealth
Disclosure Letter, neither Commonwealth nor any of its subsidiaries is in
default under, and there exists no event, condition or occurrence which,
after notice or lapse of time or both, would constitute such a default
under, any contract, agreement, license or franchise to which it is a party
which would, if terminated due to such default, cause a Material Adverse
Effect.
(e) Absence of Certain Changes or Events. Except as disclosed in the
Commonwealth Disclosure Letter or Publicly Disclosed by Commonwealth, from
December 31, 1998 through to the date hereof each of Commonwealth and the
Material Subsidiaries has conducted its business only in the ordinary and
regular course of business consistent with past practice and there has not
occurred:
(i) a Material Adverse Change with respect to Commonwealth;
(ii) any damage, destruction or loss, whether covered by insurance or
not, that could reasonably be expected to have a Material Adverse
Effect on Commonwealth;
(iii) any redemption, repurchase or other acquisition of Commonwealth
Common Shares or Commonwealth Preferred Shares by Commonwealth or any
declaration, setting aside or payment of any dividend or other
distribution (whether in cash, stock or property) with respect to
Commonwealth Common Shares;
(iv) any material increase in or modification of the compensation
payable or to become payable by it to any of its directors or
officers, or any grant to any such director or officer of any increase
in severance or termination pay;
(v) any increase in or modification of any bonus, pension, insurance
or benefit arrangement (including the granting of stock options,
restricted stock awards or stock appreciation rights) made to, for or
with any of its directors or officers;
(vi) any acquisition or sale of its property or assets to a Person not
dealing at arm's length;
(vii) any entering into, amendment of, relinquishment, termination or
non-renewal by it of any material contract, agreement, license,
franchise, lease transaction, commitment or other right or obligation,
other than in the ordinary and regular course of business consistent
with past practice;
(viii) any resolution to approve a split, combination or
reclassification of any of its outstanding shares;
18
(ix) any change in its accounting methods, principles or practices; or
(x) any agreement or arrangement to take any action which, if taken
prior to the date hereof, would have made any representation or
warranty set forth in this Agreement materially untrue or incorrect as
of the date when made.
(f) Employment.
(i) Except as set forth in the management information circular
prepared in connection with the Commonwealth Meeting or the
Commonwealth Disclosure Letter, neither Commonwealth nor any Material
Subsidiary is a party to any written or oral policy, agreement,
obligation or understanding providing for severance or termination
payments to, or any employment agreement with, any director or
officer.
(ii) Except as set forth in the Commonwealth Disclosure Letter,
neither Commonwealth nor any Material Subsidiary is a party to any
collective bargaining agreement nor subject to any application for
certification or, to the knowledge of Commonwealth, threatened or
apparent union-organizing campaigns for employees not covered under a
collective bargaining agreement nor are there any current, pending or,
to the knowledge of Commonwealth, threatened strikes or lockouts at
Commonwealth or any Material Subsidiary that would, individually or in
the aggregate, have a Material Adverse Effect on Commonwealth.
(iii) Neither Commonwealth nor any Material Subsidiary is subject to
any claim for wrongful dismissal, constructive dismissal or any other
tort claim, actual or, to the knowledge of Commonwealth, threatened,
or any litigation, actual or, to the knowledge of Commonwealth,
threatened, relating to employment or termination of employment of
employees or independent contractors, other than those claims or such
litigation as would, individually or in the aggregate, not have a
Material Adverse Effect on Commonwealth.
(iv) Commonwealth and all Material Subsidiaries have operated in
accordance with all applicable Laws with respect to employment and
labour, including, but not limited to, employment and labour
standards, occupational health and safety, employment equity, pay
equity, workers' compensation, human rights and labour relations and
there are no current, pending or, to the knowledge of Commonwealth,
threatened proceedings before any board or tribunal with respect to
any of the above areas, other than where the failure to so operate or
such proceedings which, individually or in the aggregate, would not
have a Material Adverse Effect on Commonwealth.
(g) Financial Statements. The audited consolidated financial statements for
Commonwealth as at and for each of the 12-month periods ended December 31,
1999 and 1998 and the unaudited consolidated financial statements for the
9-month period ended September 30, 2000 have been prepared in accordance
with Canadian generally accepted accounting principles (subject, in the
case of such unaudited financial statements, to the absence of notes and to
year-end adjustments), the requirements of applicable Governmental Entities
and applicable securities Laws; such financial statements present fairly,
in all material respects, the consolidated financial position and results
of operations of Commonwealth and its subsidiaries as of the respective
dates thereof and for the respective periods covered thereby, subject, in
the case of such unaudited financial statements, to year-end adjustments.
19
(h) Books and Records. The books, records and accounts of Commonwealth and
its subsidiaries, in all material respects,
(i) have been maintained in accordance with good business practices on
a basis consistent with prior years,
(ii) are stated in reasonable detail and accurately and fairly reflect
the transactions and dispositions of the assets of Commonwealth and
its subsidiaries and
(iii) accurately and fairly reflect the basis for the Commonwealth
consolidated financial statements. Commonwealth has devised and
maintains a system of internal accounting controls sufficient to
provide reasonable assurances that
(A) transactions are executed in accordance with management's
general or specific authorization; and
(B) transactions are recorded as necessary
(I) to permit preparation of financial statements in
conformity with Canadian generally accepted accounting
principles or any other criteria applicable to such
statements and
(II) to maintain accountability for assets.
(i) Litigation, Etc. Except as set forth in the Commonwealth Disclosure
Letter or Publicly Disclosed by Commonwealth, there is no claim, action,
proceeding or investigation (including any native land claims) pending or,
to the knowledge of Commonwealth, threatened against Commonwealth or any
Material Subsidiary before any court or Governmental Entity that, if
adversely determined, would reasonably be expected to have a Material
Adverse Effect on Commonwealth, or prevent or materially delay consummation
of the transactions contemplated by this Agreement or the Arrangement.
Neither Commonwealth nor any Material Subsidiary, nor their respective
assets and properties, is subject to any outstanding judgment, order, writ,
injunction or decree that has had or is reasonably likely to have a
Material Adverse Effect on Commonwealth or that would prevent or materially
delay consummation of the transactions contemplated by this Agreement or
the Arrangement.
(j) Environmental. Except for any matters that, individually or in the
aggregate, would not have a Material Adverse Effect on Commonwealth:
20
(i) all operations of Commonwealth and its Material Subsidiaries have
been conducted, and are now, in compliance with all Environmental
Laws;
(ii) Commonwealth and its Material Subsidiaries are in possession of,
and in compliance with, all permits, authorizations, certificates,
registrations, approvals and consents necessary under Environmental
Laws to own, lease and operate their properties and to conduct their
respective businesses as they are now being conducted or as proposed
to be conducted (collectively the "Environmental Permits"); and
(iii) except as set forth in the Commonwealth Disclosure Letter,
neither Commonwealth nor any Material Subsidiary is aware of, or is
subject to:
(A) any Environmental Laws which requires or may require any
work, repairs, construction, change in business practices or
operations, or expenditures, including capital expenditures for
facility upgrades, environmental investigation and remediation
expenditures, or any other such expenditures;
(B) any written demand or written notice with respect to the
breach of or liability under any Environmental Laws applicable to
Commonwealth or any subsidiary, including any regulations
respecting the use, storage, treatment, transportation or
disposition (including disposal or arranging for disposal) of
Hazardous Substances;
(C) any written demand or written notice with respect to
liability, by contract or operation of applicable Laws, under
Environmental Laws applicable to Commonwealth or any current or
former subsidiary or any of their respective predecessor
entities, divisions or any formerly owned, leased or operated
properties or assets of the foregoing, including liability with
respect to the presence, release or discharge of Hazardous
Substances; or
(D) any changes in the terms or conditions of any Environmental
Permits or any renewal, modification, revocation, re-issuance,
alteration, transfer or amendment of such Environmental Permits,
or any review by, or approval of, any Governmental Entity of such
Environmental Permits that are required in connection with the
execution or delivery of this Agreement, the consummation of the
transactions contemplated hereby or the continuation of business
of Commonwealth or any subsidiaries following such consummation.
(k) Tax Matters. Except as set forth in the Commonwealth Disclosure Letter:
(i) Commonwealth and each of its subsidiaries have filed, or caused to
be filed, all material Tax Returns required to be filed by them (all
of which returns were correct and complete in all material respects)
and have paid, or caused to be paid, all material amounts of Taxes
shown to be due and payable thereon, and Commonwealth's most recently
published financial statements contain an adequate provision in
accordance with generally accepted accounting principles for all
material amounts of Taxes payable in respect of each period covered by
21
such financial statements and all prior periods to the extent such
Taxes have not been paid, whether or not due and whether or not shown
as being due on any Tax Returns. Commonwealth and each of its
subsidiaries have made adequate provision in accordance with generally
accepted accounting principles in their books and records for any
material amounts of Taxes accruing in respect of any accounting period
which has ended subsequent to the period covered by such financial
statements.
(ii) Neither Commonwealth nor any subsidiary has received any written
notification that any issues involving a material amount of Taxes have
been raised (and are currently pending) by Revenue Canada, the United
States Internal Revenue Service or any other taxing authority,
including, without limitation, any sales tax authority, in connection
with any of the Tax Returns referred to above and no waivers of
statutes of limitations have been given or requested with respect to
Commonwealth or any Material Subsidiary. To the best of the knowledge
of Commonwealth, there are no proposed in writing (but unassessed)
additional Taxes involving a material amount of Taxes and none has
been asserted in writing. No Tax liens have been filed for material
amounts of Taxes other than for Taxes not yet due and payable. Neither
Commonwealth nor any of its subsidiaries (i) has made an election to
be treated as a "consenting corporation" under Section 341(f) of the
United States Internal Revenue Code (the "Code") or (ii) is a party to
any Tax sharing or other similar agreement or arrangement of any
nature with any other person (other than Commonwealth or any of its
subsidiaries) pursuant to which Commonwealth or any of its
subsidiaries has or could have any material liabilities in respect of
Taxes, other than any liability arising under an agreement providing
for the sale or other disposition of property by Commonwealth or any
of its subsidiaries. Commonwealth has not made an election under
Section 897(i) of the Code to be treated as a domestic corporation for
purposes of Sections 897, 1445 and 6039C of the Code.
(iii) "Urax" and "Taxes" means, with respect to any entity, all income
taxes (including any tax on or based upon net income, gross income,
income as specially defined, earnings, profits or selected items of
income, earnings or profits) and all capital taxes, gross receipts
taxes, environmental taxes, sales taxes, use taxes, ad valorem taxes,
value added taxes, transfer taxes, franchise taxes, license taxes,
withholding taxes, payroll taxes, employment taxes, Canada Pension
Plan premiums, excise, severance, social security premiums, workers'
compensation premiums, unemployment insurance or compensation
premiums, stamp taxes, occupation taxes, premium taxes, property
taxes, windfall profits taxes, alternative or add-on minimum taxes,
goods and services tax, customs duties or other taxes, fees, imports,
assessments or charges of any kind whatsoever, together with any
interest and any penalties or additional amounts imposed by any taxing
authority (domestic or foreign) on such entity, and any interest,
penalties, additional taxes and additions to tax imposed with respect
to the foregoing. For purposes of this ss.3.1(k), the term "material
amount of Taxes" shall mean an amount of Taxes that is material to
Commonwealth and its subsidiaries taken as a whole.
22
(l) Pension and Employee Benefits. Commonwealth has confirmed in the
Disclosure Letter that it has no employee benefit, health, welfare,
supplemental unemployment benefit, bonus, pension, profit sharing, deferred
compensation, stock compensation, stock purchase, retirement,
hospitalization insurance, medical, dental, legal, disability and similar
plans or arrangements or practices, whether written or oral, which are
maintained by Commonwealth and/or a Material Subsidiary (collectively
referred to as the "Commonwealth Plans").
(m) Reports. Commonwealth has filed with the CDNSC true and complete copies
of all forms, reports, schedules, statements and other documents required
to be filed by it since December 31, 1998 (such forms, reports, schedules,
statements and other documents, including any financial statements or other
documents, including any schedules included therein, are referred to as the
"Commonwealth Documents"). The Commonwealth Documents at the time filed (i)
did not contain any misrepresentation (as defined in the Securities Acts)
and (ii) complied in all material respects with the requirements of
applicable securities Laws. Commonwealth has not filed any confidential
material change report with the CDNSC or any other securities authority or
regulator or any stock exchange or other self-regulatory authority which at
the date hereof remains confidential.
(n) Compliance with Laws. Except as disclosed in the Commonwealth
Disclosure Letter or Publicly Disclosed by Commonwealth, Commonwealth and
the Material Subsidiaries have complied with and are not in violation of
any applicable Laws, orders, judgments and decrees other than
non-compliance or violations which would not, individually or in the
aggregate, have a Material Adverse Effect on Commonwealth. Without limiting
the generality of the foregoing, all securities of Commonwealth (including,
all options, rights or other convertible or exchangeable securities) have
been issued in compliance, in all material respects, with all applicable
securities Laws and all securities to be issued upon exercise of any such
options, rights and other convertible or exchangeable securities will be
issued in compliance with all applicable securities Laws.
(o) Restrictions on Business Activities. Except as set forth in the
Commonwealth Disclosure Letter or Publicly Disclosed by Commonwealth, there
is no agreement, judgment, injunction, order or decree binding upon
Commonwealth or any Material Subsidiary that has or could reasonably be
expected to have the effect of prohibiting, restricting or materially
impairing any business practice of Commonwealth or any Material Subsidiary,
any acquisition of property by Commonwealth or any Material Subsidiary or
the conduct of business by Commonwealth or any Material Subsidiary as
currently conducted other than such agreements, judgments, injunctions,
orders or decrees which would not, individually or in the aggregate, have a
Material Adverse Effect on Commonwealth.
23
(p) Material Customers. There is no single customer of Commonwealth or its
subsidiaries, the loss of which would have a Material Adverse Effect on
Commonwealth.
(q) Intellectual Property. Except as set forth in the Commonwealth
Disclosure Letter, Commonwealth and its subsidiaries own, or are validly
licensed or otherwise have the right to use, all patents, patent rights,
trade-marks, trade names, service marks, copyrights, know how and other
proprietary intellectual property rights that are material to the conduct
of the business, as presently conducted, of Commonwealth and its
subsidiaries taken as a whole.
(r) Insurance. Commonwealth has policies of insurance in force as of the
date hereof naming Commonwealth as an insured which, having regard to the
nature of such risk and the relative cost of obtaining insurance,
Commonwealth believes are reasonable.
(s) Property. Except as disclosed in the Commonwealth Disclosure Letter,
Commonwealth and each Material Subsidiary have good and sufficient title to
the real property interests including leases, easements, rights of way,
permits or licences from land owners or authorities permitting the use of
land by Commonwealth or such Material Subsidiary, necessary to permit the
operation of its businesses as presently owned and conducted except for
such failure of title that would individually or in the aggregate not have
a Material Adverse Effect on Commonwealth.
(t) Licences, Etc. Except as disclosed in the Commonwealth Disclosure
Letter, Commonwealth and each Material Subsidiary owns, possesses, or has
obtained and is in compliance with, all licences, permits, certificates,
orders, grants and other authorizations of or from any Governmental Entity
necessary to conduct its businesses as now conducted or as proposed to be
conducted except for such failure that would individually or in the
aggregate not have a Material Adverse Effect on Commonwealth.
(u) Registration Rights. No holder of securities issued by Commonwealth has
any right to compel Commonwealth to register or otherwise qualify such
securities for public sale in Canada or the United States.
Representations and Warranties of the Empire Parties
3.2 The Empire Parties jointly and severally represent and warrant to and in
favour of Commonwealth as follows and acknowledge that Commonwealth is relying
upon such representations and warranties in connection with the matters
contemplated by this Agreement:
(a) Organization. Each of the Empire Parties and the Empire Material
Subsidiaries has been duly incorporated or formed under all applicable
Laws, is validly subsisting and has full corporate or legal power and
authority to own its properties and conduct its businesses as currently
owned and conducted. All of the outstanding shares of capital stock and
other ownership interests of Empire's subsidiaries which are held directly
or indirectly by Empire are validly issued, fully paid and non-assessable
and all such shares and other ownership interests are owned directly or
indirectly by Empire, free and clear of all material liens, claims or
encumbrances except as disclosed by Empire to Commonwealth or pursuant to
restrictions on transfer contained in constating documents, and there are
no outstanding options, rights, entitlements, understandings or commitments
(pre-emptive, contingent or otherwise) regarding the right to acquire any
such shares of capital stock or other ownership interests in any of its
subsidiaries.
24
(b) Capitalization. The authorized capital of Empire consists of 50 million
shares of common stock, $001 par value. As of the date hereof, there are
13,712,062 Empire Common Shares issued and outstanding and 12,761,000
Empire Common Shares reserved for issuance for 1,588,500 stock options and
11,000,000 warrants. There are no other options, warrants, conversion
privileges or other rights, agreements, arrangements or commitments
(contingent or otherwise) obligating Empire to issue or sell any shares or
securities or obligations of any kind convertible into or exchangeable for
any shares. All outstanding Empire Common Shares have been duly authorized
and are validly issued and outstanding as fully paid and non-assessable
shares, free of pre-emptive rights. There are no outstanding bonds,
debentures or other evidences of indebtedness of Empire having the right to
vote (or that are convertible for or exercisable into securities having the
right to vote) with the holders of the Empire Common Shares on any matter.
Other than under employee stock option plans, there are no outstanding
contractual obligations of Empire to repurchase, redeem or otherwise
acquire any of its outstanding securities or with respect to the voting or
disposition of any outstanding securities of any of its subsidiaries.
(c) Authority and No violation.
(i) Each of the Empire Parties has the requisite corporate power and
authority to enter into Agreement, the Support Agreement and the
Exchange Trust Agreement and to perform its obligations hereunder and
thereunder. The execution and delivery of this Agreement, the Support
Agreement and the Exchange Trust Agreement by each of the Empire
Parties and the consummation by each of the Empire Parties of the
transactions contemplated by this Agreement, the Support Agreement and
the Exchange Trust Agreement have been duly authorized by its
respective Board of Directors and no other corporate proceedings on
its part are necessary to authorize this Agreement, the Support
Agreement and the Exchange Trust Agreement or the transactions
contemplated hereby or thereby.
(ii) This Agreement has been duly executed and delivered by each of
the Empire Parties and constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms,
subject to bankruptcy, insolvency and other applicable Laws affecting
creditors' rights generally, and to general principles of equity. Each
of the Support Agreement and the Exchange Trust Agreement will be duly
executed and delivered by each of the Empire Parties party thereto
and, when so executed and delivered, will constitute its legal, valid
and binding obligation, enforceable against it in accordance with its
terms, subject to bankruptcy, insolvency and other applicable Laws
affecting creditors' rights generally, and to general principles of
equity.
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(iii) The approval of this Agreement, the Support Agreement and the
Exchange Trust Agreement, the execution and delivery by each of the
Empire Parties of this Agreement, the Support Agreement and the
Exchange Trust Agreement and the performance by it of its obligations
hereunder and thereunder and the completion of the Arrangement and the
transactions contemplated thereby, will not:
(A) result in a violation or breach of, require any consent to be
obtained under or give rise to any termination, purchase or sale
rights or payment obligation under any provision of:
(I) its or any Empire Material Subsidiary's certificate of
incorporation, articles, by-laws or other charter documents,
including any unanimous shareholder agreement or any other
agreement or understanding relating to ownership of shares
or other interests or to corporate governance with any party
holding an ownership interest in any Empire Material
Subsidiary;
(II) subject to obtaining the Appropriate Regulatory
Approvals relating to the Empire Parties, any Laws, judgment
or decree except to the extent that the violation or breach
of, or failure to obtain any consent under, any Laws,
judgment or decree would not, individually or in the
aggregate, have a Material Adverse Effect on Empire; or
(III) subject to obtaining the Appropriate Regulatory
Approvals relating to the Empire Parties and except as would
not, individually or in the aggregate, have a Material
Adverse Effect on Empire, any material contract, agreement,
license, franchise or permit to which it is party or by
which it is bound or is subject or is the beneficiary;
(B) give rise to any right of termination or acceleration of
indebtedness of any Empire Party or any Empire Material
Subsidiary, or cause such indebtedness to come due before its
stated maturity or cause any available credit of any Empire Party
or any Empire Material Subsidiary to cease to be available; or
(C) except as would not, individually or in the aggregate, have a
Material Adverse Effect on Empire, result in the imposition of
any encumbrance, charge or lien upon any of its assets, or
restrict, hinder, impair or limit its ability to carry on its
business as and where it is now being carried on.
No consent, approval, order or authorization of, or declaration or filing
with, any Governmental Entity is required to be obtained by any of the
Empire Parties or the Empire Material Subsidiaries in connection with the
execution and delivery of this Agreement, the Support Agreement and the
Exchange Trust Agreement or the consummation by any of the Empire Parties
of the transactions contemplated hereby or thereby other than (A) the
Appropriate Regulatory Approvals relating to the Empire Parties, (B) any
26
filings required in connection with the creation and issue of the
Redeemable Voting Share, (C) any approval required in connection with the
amendment of the articles of Empire Exchangeco to create the Exchangeable
Shares and (D) any other consents, approvals, orders, authorizations,
declarations or filings of or with a Governmental Entity which, if not
obtained, would not, individually or in the aggregate, have a Material
Adverse Effect on Empire.
(d) Absence of Certain Changes or Events. Except as Publicly Disclosed by
Empire, since December 31, 1998 through to the date hereof each of the
Empire Parties and each Empire Material Subsidiary has conducted its
business only in the ordinary and regular course of business consistent
with past practice and there has not occurred:
(i) a Material Adverse Change with respect to Empire;
(ii) any agreement or arrangement to take any action which, if taken
prior to the date hereof, would have made any representation or
warranty set forth in this Agreement materially untrue or incorrect as
of the date when made;
(iii) any resolution to approve a split, combination or
reclassification of the Empire Common Shares; or
(iv) any material change in its accounting methods, principles or
practices.
(e) Financial Statements. The audited consolidated financial statements for
Empire as at and for each of the 12-month periods ended on December 31,
1999 and 1998 and the unaudited consolidated financial statements for the
nine-months ended September 30, 2000 have been prepared in accordance with
United States generally accepted accounting principles, the requirements of
applicable Governmental Entities and applicable securities Laws; such
financial statements present fairly, in all material respects, the
consolidated financial position and results of operations of Empire and its
subsidiaries as of the respective dates thereof and for the respective
periods covered thereby.
(f) Reports. Empire and/or its predecessor, Medivest, Inc. has filed with
the SEC true and complete copies of all forms, reports, schedules,
statements and other documents required to be filed by it since January 1,
1997, and such documents, at the time filed; (i) did not contain any
misrepresentation (as defined in the 1933 Act) and (ii) complied in all
material respects with the requirements of applicable securities Laws.
Empire has not filed any confidential material change report with the SEC
or any other securities authority or regulator or any stock exchange or
other self-regulatory authority which at the date hereof remains
confidential.
(g) Exchangeable Shares and Redeemable Voting Shares. The Exchangeable
Shares and Redeemable Voting Shares to be issued in connection with the
Arrangement will be duly and validly issued by Empire Exchangeco and
Empire, respectively, on the Effective Date as fully paid and
non-assessable shares.
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(h) Empire Common Shares. The Empire Common Shares to be issued pursuant to
the Arrangement or upon the exchange from time to time of the Exchangeable
Shares or upon the exercise from time to time of the Replacement Options
will, in all cases, be duly and validly issued by Empire on their
respective dates of issue as fully paid and non-assessable shares.
(i) Compliance with Laws. Except as disclosed in writing by Empire to
Commonwealth or Publicly Disclosed by Empire, Empire and the Empire
Material Subsidiaries have complied with and are not in violation of any
applicable Laws, orders, judgments and decrees other than non-compliance or
violations which would not, individually or in the aggregate, have a
Material Adverse Effect on Empire. Without limiting the generality of the
foregoing, all securities of Empire (including all options, rights or other
convertible or exchangeable securities) have been issued in compliance in
all material respects with all applicable securities Laws and all
securities to be issued upon exercise of any such options, rights and other
convertible or exchangeable securities will be issued in compliance with
all applicable securities Laws.
(j) Litigation, Etc. Except as disclosed in writing by Empire to
Commonwealth or Publicly Disclosed by Empire, there is no claim, action,
proceeding or investigation (including any native land claims) pending or,
to the knowledge of Empire, threatened against Empire or any Empire
Material Subsidiary before any court or Governmental Entity that, if
adversely determined, would reasonably be expected to have a Material
Adverse Effect on Empire, or prevent or materially delay consummation of
the transactions contemplated by this Agreement or the Arrangement. Neither
Empire nor any Empire Material Subsidiary, nor their respective assets and
properties, is subject to any outstanding judgment, order, writ, injunction
or decree that has had or is reasonably likely to have a Material Adverse
Effect on Empire or that would prevent or materially delay consummation of
the transactions contemplated by this Agreement or the Arrangement.
(k) Tax Matters. Except as disclosed in writing by Empire to Commonwealth
or Publicly Disclosed by Empire:
(i) Empire and each of its subsidiaries have timely filed, or caused
to be filed, all material Tax Returns required to be filed by them
(all of which returns were correct and complete in all material
respects) and have paid, or caused to be paid, all material amounts of
Taxes shown to be due and payable thereon, and Empire's most recently
published financial statements contain an adequate provision in
accordance with generally accepted accounting principles for all
material amounts of Taxes payable in respect of each period covered by
such financial statements and all prior periods to the extent such
Taxes have not been paid, whether or not due and whether or not shown
as being due on any Tax Returns. Empire and each of its subsidiaries
have made adequate provision in accordance with generally accepted
accounting principles in their respective books and records for any
Taxes accruing in respect of any accounting period which has ended
subsequent to the period covered by such financial statements; and
28
(ii) neither Empire nor any subsidiary has received any written
notification that any issues involving a material amount of Taxes have
been raised (and are currently pending) by Revenue Canada, the United
States Internal Revenue Service or any other taxing authority,
including, without limitation, any sales tax authority, in connection
with any of the Tax Returns referred to above and no waivers of
statutes of limitations have been given or requested with respect to
Empire or any subsidiary. To the best of the knowledge of Empire,
there are no proposed (but unassessed) additional Taxes involving a
material amount of Taxes and none has been asserted in writing. No Tax
liens have been filed other than for Taxes not yet due and payable.
Neither Empire nor any of its subsidiaries (i) has made an election to
be treated as a "consenting corporation" under Section 341(f) of the
Code or (ii) is a party to any Tax sharing or other similar agreement
or arrangement of any nature with any other person (other than
Commonwealth or any of its subsidiaries) pursuant to which Empire or
any of its subsidiaries has or could have any material liabilities in
respect of Taxes. Empire has not made an election under Section 897(i)
of the Code to be treated as a domestic corporation for purposes of
Sections 897, 1445 and 6039C of the Code.
(l) Environmental. Except for matters that, individually or in the
aggregate, would not have a Material Adverse Effect on Empire:
(i) all operations of Empire and the Empire Material Subsidiary have
been conducted, and are now, in compliance with all Environmental
Laws; and
(ii) Empire and the Empire Material Subsidiaries are in possession of,
and in compliance with, all permits, authorizations, certificates,
registrations, approvals and consents necessary under Environmental
Laws to own, lease and operate their properties and conduct their
respective businesses as they are now being conducted or as proposed
to be conducted.
Survival
3.3 For greater certainty, the representations and warranties of Commonwealth
and each Empire Party contained herein shall survive the execution and delivery
of this Agreement and shall terminate on the earlier of the termination of this
Agreement in accordance with its terms and the Effective Time. Any investigation
by a party hereto and its advisors shall not mitigate, diminish or affect the
representations and warranties of another party to this Agreement.
Part 4
COVENANTS
Retention of Goodwill
4.1 During the Pre-Effective Date Period, Commonwealth will, subject to the fact
that a transaction involving its businesses is contemplated hereby, continue to
carry on the business of Commonwealth and its subsidiaries in a manner
consistent with prior practice, working to preserve the attendant goodwill of
such entities and to contribute to retention of that goodwill to and after the
Effective Date, but subject to the following provisions of this Part 4. The
following provisions of this Part 4 are intended to be in furtherance of this
general commitment.
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Material Commitments
4.2 Subject to applicable Law and the other provisions of this Agreement, during
the Pre-Effective Date Period, Commonwealth and its subsidiaries will consult on
an ongoing basis with senior officers of Empire in order to provide for an
orderly integration of operations.
Covenants of Commonwealth
4.3 (a) Commonwealth covenants and agrees that, until the Effective Date or the
earlier termination of this Agreement in. accordance with Part 6, except
(i) with the consent of Empire on behalf of the Empire Parties to any
deviation therefrom, which shall not be unreasonably withheld; (ii) with
respect to any matters which were disclosed in the Commonwealth Disclosure
Letter; or (iii) with respect to any matter contemplated by this Agreement
or the Plan of Arrangement, including the transactions involving the
businesses of Commonwealth and Empire contemplated hereby, Commonwealth
will, and will cause its subsidiaries to:
(i) carry on its business in, and only in, the ordinary and regular
course in substantially the same manner as heretofore conducted and,
to the extent consistent with such business, use all reasonable
efforts to preserve intact its present business organization and keep
available the services of its present officers and employees and
others having business dealings with it to the end that its goodwill
and business shall be maintained;
(ii) not commence to undertake a substantial expansion of its business
facilities or an expansion that is out of the ordinary and regular
course of business consistent with prior practice in light of current
market and economic conditions;
(iii) not split, combine or reclassify any of the outstanding shares
of Commonwealth nor declare, set aside or pay any dividends on or make
any other distributions on or in respect of the outstanding shares of
Commonwealth;
(iv) not amend the articles or by-laws of Commonwealth or materially
amend the articles or by-laws of any subsidiary;
(v) not sell, pledge, encumber, allot, reserve, set aside or issue,
authorize or propose the sale, pledge, encumbrance, allotment,
reservation, setting aside or issuance of, or purchase or redeem or
propose the purchase or redemption of, any shares in its capital stock
or of any subsidiary thereof or any class of securities convertible or
exchangeable into, or rights, warrants or options to acquire, any such
shares or other convertible or exchangeable securities, except for (a)
transactions between two or more wholly-owned Commonwealth
subsidiaries or between a wholly-owned subsidiary of Commonwealth and
Commonwealth, (b) the issuance of Commonwealth Common Shares pursuant
to fully vested Commonwealth Options granted prior to the date hereof,
(c) the issuance of Commonwealth Common Shares pursuant to the
exercise of Commonwealth Warrants;
30
(vi) not, whether through its Board of Directors or otherwise,
accelerate the vesting of any unvested Commonwealth Options or
accelerate the release of, or the expiry date of any hold period
relating to, any Commonwealth Common Shares held in the Commonwealth
Stock Option Plan;
(vii) not reorganize, amalgamate or merge Commonwealth or any of its
subsidiaries with any other Person, nor acquire or agree to acquire by
amalgamating, merging or consolidating with, purchasing substantially
all of the assets of or otherwise, any business of any corporation,
partnership, association or other business organization or division
thereof, which acquisition would be material to its business or
financial condition on a consolidated basis (other than relating to
transactions between two or more wholly-owned Commonwealth
subsidiaries or between a wholly-owned subsidiary of Commonwealth and
Commonwealth);
(viii) except with respect to the sale of assets of Commonwealth or
any subsidiary in the ordinary and regular course of business
consistent with past practice, not sell, pledge, encumber, lease or
otherwise dispose of any material assets (other than relating to
transactions between two or more wholly-owned Commonwealth
subsidiaries or between a wholly-owned subsidiary of Commonwealth and
Commonwealth);
(ix) not guarantee the payment of material indebtedness or incur
material indebtedness for money borrowed or issue or sell any debt
securities except in the ordinary and regular course of business
consistent with past practice;
(x) carry out the terms of the Interim Order and the Final Order
applicable to it and use its reasonable efforts to comply promptly
with all requirements which applicable Laws may impose on Commonwealth
or its subsidiaries with respect to the transactions contemplated
hereby and by the Arrangement;
(xi) not, and cause each of its subsidiaries not:
(A) other than in the usual, ordinary and regular course of
business and consistent with past practice or pursuant to
existing employment, pension, supplemental pension, termination,
compensation arrangements or policies, enter into or materially
modify any employment, severance, collective bargaining or
similar agreements, policies or arrangements with, or grant any
material bonuses, salary increases, stock options, pension or
supplemental pension benefits, profit sharing, retirement
allowances, deferred compensation, incentive compensation,
severance or termination pay to, or make any loan to, any
officers or directors of it; or
31
(B) other than in the usual, ordinary and regular course of
business and consistent with past practice or pursuant to
existing employment, pension, supplemental pension, termination,
compensation arrangements or policies, in the case of employees
who are not officers or directors, take any action with respect
to the entering into or modifying of any material employment,
severance, collective bargaining or similar agreements, policies
or arrangements or with respect to the grant of any material
bonuses, salary increases, stock options, pension or supplemental
pension benefits, profit sharing, retirement allowances, deferred
compensation, incentive compensation, severance or termination
pay or any other form of compensation or profit sharing or with
respect to any increase of benefits payable;
(xii) not, except in the usual, ordinary and regular course of
business and consistent with past practice: (A) satisfy or settle any
claims or liabilities prior to the same being due, except such as have
been reserved against in the financial statements of Commonwealth and
its subsidiaries or disclosed in the Commonwealth Disclosure Letter,
which are, individually or in the aggregate, material; (B) grant any
waiver, exercise any option or relinquish any contractual rights which
are, individually or in the aggregate, material; or (C) enter into any
interest rate, currency or commodity swaps, hedges or other similar
financial instruments;
(xiii) use its reasonable commercial efforts (or cause each of its
subsidiaries to use reasonable commercial efforts) to cause its
current insurance (or re-insurance) policies not to be cancelled or
terminated or any of the coverage thereunder to lapse, unless
simultaneously with such termination, cancellation or lapse,
replacement policies underwritten by insurance and re-insurance
companies of nationally recognized standing providing coverage equal
to or greater than the coverage under the cancelled, terminated or
lapsed policies for substantially similar premiums are in full force
and effect;
(xiv) not, and will cause its subsidiaries not to, settle or
compromise any claim brought by any present, former or purported
holder of any of its securities in connection with the transactions
contemplated by this Agreement or the Arrangement prior to the
Effective Date;
(xv) except in the usual, ordinary and regular course of business and
consistent with past practice or as required by applicable Laws, not,
and will cause its subsidiaries not to, enter into or modify in any
material respect any contract, agreement, commitment or arrangement
which new contract or series of related new contracts or modification
to an existing contract or series of related existing contracts would
have a Material Adverse Effect on Commonwealth;
(xvi) incur or commit to capital expenditures prior to the Effective
Date only in the ordinary course consistent with past practice and
not, in any event, exceeding $500,000, individually or in the
aggregate;
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(xvii) not make any changes to existing accounting practices relating
to Commonwealth or any subsidiary except as required by Law or
required by generally accepted accounting principles or make any
material tax election inconsistent with past practice; and
(xviii) promptly advise Empire orally and, if then requested, in
writing:
(A) of any event occurring subsequent to the date of this
Agreement that would render any representation or warranty of
Commonwealth contained in this Agreement (except any such
representation or warranty which speaks as of a date prior to the
occurrence of such event), if made on or as of the date of such
event or the Effective Date, untrue or inaccurate in any material
respect;
(B) of any Material Adverse Change in respect of Commonwealth;
and
(C) of any material breach by Commonwealth of any covenant or
agreement contained in this Agreement; and
(b) Commonwealth shall and shall cause its subsidiaries to perform all
obligations required or desirable to be performed by Commonwealth or any of
its subsidiaries under this Agreement, co-operate with Empire in connection
therewith, and do all such other acts and things as may be necessary or
desirable in order to consummate and make effective, as soon as reasonably
practicable, the transactions contemplated in this Agreement and, without
limiting the generality of the foregoing, Commonwealth shall and where
appropriate shall cause its subsidiaries to:
(i) use all reasonable efforts to obtain the approvals of holders of
Commonwealth Common Shares to the Arrangement, subject, however, to
the exercise by the Board of Directors of Commonwealth of its
fiduciary duties as provided herein;
(ii) apply for and use all reasonable efforts to obtain all
Appropriate Regulatory Approvals relating to Commonwealth or any of
its subsidiaries and, in doing so, to keep Empire reasonably informed
as to the status of the proceedings related to obtaining the
Appropriate Regulatory Approvals, including, but not limited to,
providing Empire with copies of all related applications and
notifications, in draft form, in order for Empire to provide its
reasonable comments;
(iii) apply for and use all reasonable efforts to obtain the Interim
Order and the Final Order;
(iv) defend all lawsuits or other legal, regulatory or other
proceedings challenging or affecting this Agreement or the
consummation of the transactions contemplated hereby;
33
(v) use its reasonable efforts to have lifted or rescinded any
injunction or restraining order or other order which may adversely
affect the ability of the parties to consummate the transactions
contemplated hereby;
(vi) effect all necessary registrations, filings and submissions of
information required by Governmental Entities from Commonwealth or any
of its subsidiaries;
(vii) use its reasonable efforts to obtain all necessary waivers,
consents and approvals required to be obtained by Commonwealth or a
subsidiary from other parties to loan agreements, leases or other
contracts; and
(viii) use its reasonable efforts to ensure that Commonwealth's
affiliates (for the purposes of Rule 145 under the 1933 Act) execute
and deliver to Empire, on or prior to the Effective Date, an
Affiliate's Letter.
Covenants of the Empire Parties
4.4 Each of the Empire Parties hereby jointly and severally covenants and agrees
(and, if applicable, will cause its subsidiaries):
(a) to perform all obligations required or desirable to be performed by it
under this Agreement, to co-operate with Commonwealth in connection
therewith, and to do all such other acts and things as may be necessary or
desirable in order to consummate and make effective, as soon as reasonably
practicable, the transactions contemplated by this Agreement and, without
limiting the generality of the foregoing, to:
(i) apply for and use all reasonable efforts to obtain all Appropriate
Regulatory Approvals relating to the Empire Parties, and, in doing so,
to keep Commonwealth reasonably informed as to the status of the
proceedings related to obtaining the Appropriate Regulatory Approvals,
including; but not limited to, providing Commonwealth with copies of
all related applications and notifications, in draft form, in order
for Commonwealth to provide its reasonable comments;
(ii) defend all lawsuits or other legal, regulatory or other
proceedings to which it is a party challenging or affecting this
Agreement or the consummation of the transactions contemplated hereby;
(iii) use all reasonable efforts to have lifted or rescinded any
injunction or restraining order or other order relating to the Empire
Parties which may adversely affect the ability of the parties to
consummate the transactions contemplated hereby;
(iv) effect all necessary registrations, filings and submissions of
information required by Governmental Entities from the Empire Parties
or their subsidiaries;
(v) cause the articles of Empire Exchangeco and Empire to be amended
to, among other things, create the Exchangeable Shares and Redeemable
Voting Shares respectively; and
34
(vi) cause Empire to reserve a sufficient number of Empire Common
Shares for issuance upon the completion of the Arrangement and the
exchange from time to time of Exchangeable Shares (including
Replacement Warrants) and the exercise from time to time of
Replacement Options and Replacement Warrants;
(b) carry out the terms of the Interim Order and Final Order applicable to
it and use its reasonable efforts to comply promptly with all requirements
which applicable Laws may impose on Empire or its subsidiaries with respect
to the transactions contemplated hereby and by the Arrangement;
(c) in connection with the consummation of the transactions contemplated
hereby and by the Arrangement, use its reasonable efforts to obtain all
necessary waivers, consents and approvals required to be obtained by Empire
or a subsidiary of Empire from other parties to leases or other contracts;
(d) at or prior to the Effective Time, Empire shall appoint two of the
current directors of Commonwealth to become directors of Empire;
(e) until the Effective Date or the earlier termination of this Agreement
in accordance with Part 6, except (i) with the consent of Commonwealth to
any deviation therefrom, which shall not be unreasonably withheld; (ii)
with respect to any matters which were disclosed by Empire to Commonwealth
in writing; or (iii) with respect to any matter contemplated by this
Agreement or the Plan of Arrangement, including the transactions involving
the businesses of Commonwealth and Empire contemplated hereby, Empire will:
(i) not split, combine or reclassify any of the outstanding shares of
Empire nor declare, set aside or pay any dividends on or make any
other distributions on or in respect of the outstanding shares of
Empire;
(ii) not make any changes to existing accounting practices related to
Empire except as required by a change in United States generally
accepted accounting practice or by applicable Law;
(iii) not reorganize, amalgamate or merge Empire with any other
Person, nor acquire by amalgamating, merging or consolidating with,
purchasing a majority of the voting securities or substantially all of
the assets of or otherwise, any business or Person which acquisition
would reasonably be expected to materially delay the transactions
contemplated hereby;
(iv) promptly advise Commonwealth orally and, if then requested, in
writing:
(A) of any event occurring subsequent to the date of this
Agreement that would render any representation or warranty of
Empire contained in this Agreement (except any such
representation or warranty which speaks as of a date prior to the
occurrence of such event), if made on or as of the date of such
event or the Effective Date, untrue or inaccurate in any material
respect;
35
(B) of any Material Adverse Change in respect of Empire; and
(C) of any material breach by Empire of any covenant or agreement
contained in this Agreement;
(f) the Empire Parties shall not take any action which may jeopardise the
exchange of the Commonwealth Common Shares by holders of the Commonwealth
Common Shares resident in Canada for the purposes of the Income Tax Act
(Canada) from being treated on a tax deferred basis under the Income Tax
Act (Canada) for holders who are otherwise eligible for such treatment; and
(g) from and after the Effective Time will use their best efforts to cause
to be released from any escrow restrictions, any shares of Empire
Exchangeco which are issued in exchange for shares of Commonwealth which
are currently held in escrow by the CIBC Mellon Trust Company under an
agreement dated December 18, 1997 respecting 9,865,390 Commonwealth shares.
Notwithstanding the generality of the foregoing commitment, the Empire
Parties agree they will not oppose any application for release from escrow
made to the CDNX or any CDNSC of Commonwealth shares or Empire Exchangeco
shares or of Empire shares in the event of exchange for such escrowed
Commonwealth shares and will assist the registered holders of such escrowed
shares to make such escrow release applications and will also consent to
the escrow agreement being amended or terminated and all escrowed shares
being released to the holders thereof if acceptable to the shareholders of
Commonwealth. In the event the escrowed Commonwealth shares or Empire
Exchangeco shares issued in substitution therefor are for any reason
cancelled, Empire agrees to forthwith issue to the former holders thereof
on a one for six basis for escrowed Commonwealth shares, common shares of
Empire (as currently constituted) free of any lien, encumbrance or
restriction (except for hold periods of general application) providing the
Arrangement contemplated hereby does complete.
Covenants Regarding Non-Solicitation
4.5 (a) Subject to ss.4.6, Commonwealth shall not, directly or indirectly,
through any officer, director, employee, representative or agent of
Commonwealth or any of its subsidiaries, (i) solicit, initiate or knowingly
encourage (including by way of furnishing information or entering into any
form of agreement, arrangement or understanding) the initiation of any
inquiries or proposals regarding an Acquisition Proposal, (ii) participate
in any discussions or negotiations regarding any Acquisition Proposal,
(iii) withdraw or modify in a manner adverse to Empire the approval of the
Board of Directors of Commonwealth of the transactions contemplated hereby,
(iv) approve or recommend any Acquisition Proposal or (v) enter into any
agreement, arrangement or understanding related to any Acquisition
Proposal. Notwithstanding the preceding part of this ss.4.5(a) and any
other provision of this Agreement, nothing shall prevent the Board of
Directors of Commonwealth prior to the issuance of the Final Order from
considering, participating in any discussions or negotiations, or entering
into a confidentiality agreement and providing information pursuant to
ss.4.5(c), regarding an unsolicited bona fide written Acquisition Proposal
that did not otherwise result from a breach of this ss.4.5 and that the
36
Board of Directors of Commonwealth determines in good faith, after
consultation with financial advisors and outside counsel, is reasonably
likely to result in a Superior Proposal; provided, however, that prior to
taking such action, the Board of Directors must receive advice of outside
counsel that it is appropriate that the Board of Directors of Commonwealth
take such action in order to discharge properly its fiduciary duties.
Commonwealth shall not consider, negotiate, accept, approve or recommend an
Acquisition Proposal after the date of the issuance of the Final Order.
Commonwealth shall, and shall cause the officers, directors, employees,
representatives and agents of Commonwealth and its subsidiaries to, cease
immediately all discussions and negotiations regarding any proposal that
constitutes, or may reasonably be expected to lead to, an Acquisition
Proposal.
(b) Commonwealth shall promptly notify Empire, at first orally and then in
writing, of any Acquisition Proposal and any inquiry that could lead to an
Acquisition Proposal, or any amendments to the foregoing, or any request
for non-public information relating to Commonwealth or any Material
Subsidiary in connection with an Acquisition Proposal or for access to the
properties, books or records of Commonwealth or any Material Subsidiary by
any Person that informs Commonwealth or such Material Subsidiary that it is
considering making, or has made, an Acquisition Proposal. Such notice shall
include a description of the material terms and conditions of any proposal,
the identity of the Person making such proposal, inquiry or contact and
provide such other details of the proposal, inquiry or contact as Empire
may reasonably request. Commonwealth shall (i) keep Empire fully informed
of the status including any change to the material terms of any such
Acquisition Proposal or inquiry and (ii) provide to Empire as soon as
practicable after receipt or delivery thereof with copies of all
correspondence and other written material sent or provided to Commonwealth
or any Material Subsidiary from any Person in connection with any
Acquisition Proposal sent or provided by Commonwealth to any Person in
connection with any Acquisition Proposal.
(c) If Commonwealth receives a request for material non-public information
from a Person who has made an unsolicited bona fide written Acquisition
Proposal and Commonwealth is permitted, as contemplated under the second
sentence of ss.4.5(a), to negotiate the terms of such Acquisition Proposal,
then, and only in such case, the Board of Directors of Commonwealth may,
subject to the execution by such Person of a confidentiality agreement
containing a standstill provision substantially similar to that contained
in the confidentiality agreement then in effect between Commonwealth and
Empire, provide such Person with access to information regarding
Commonwealth; provided, however, that the Person making the Acquisition
Proposal shall not be precluded under such confidentiality agreement from
making the Acquisition Proposal (but not any material amendment thereto)
and provided further that Commonwealth sends a copy of any such
confidentiality agreement to Empire promptly upon its execution and Empire
is provided with a list of or copies of the information provided to such
Person and immediately provided with access to similar information to which
such Person was provided.
(d) Commonwealth shall ensure that its officers, directors and employees
and its subsidiaries and their officers, directors and employees and any
financial advisors or other advisors or representatives retained by it are
aware of the provisions of this ss.4.5, and it shall be responsible for any
breach of this ss.4.5 by its officers, directors, employees, financial
advisors or other advisors or representatives.
37
(e) Notwithstanding ss.4.5(a)(iii), the Board of Directors of Commonwealth
may withdraw or modify in a manner adverse to Empire the approval of the
Board of Directors of Commonwealth of the transactions contemplated hereby
if a Specified Empire Event has occurred and is continuing.
Notice by Commonwealth of Superior Proposal Determination
4.6 Notwithstanding sections 4.5(a), (b), (d) and (e), Commonwealth may accept,
approve, recommend or enter into any agreement, understanding or arrangement in
respect of a Superior Proposal if, and only if, (i) it has provided Empire with
a copy of the Superior Proposal document, (ii) five Business Days shall have
elapsed from the later of the date Empire received written notice advising
Empire that Commonwealth's Board of Directors has resolved, subject only to
compliance with this ss.4.6 and termination of this Agreement, to accept,
approve, recommend or enter into an agreement in respect of such Superior
Proposal, specifying the terms and conditions of such Superior Proposal and
identifying the Person making such Superior Proposal, and the date Empire
received a copy of such Superior Proposal and (iii) it has previously or
concurrently will have (A) paid to Empire the break fee, if any, payable under
ss.6.4 and (B) terminated this Agreement pursuant to ss.6.3. Any information
provided by Commonwealth to Empire pursuant to this ss.4.6 or pursuant to ss.4.5
shall constitute "Information" under ss.4.7(b).
During such five Business Day period, Commonwealth agrees that Empire shall have
the right, but not the obligation, to offer to amend the terms of this
Agreement. The Board of Directors of Commonwealth will review any offer by
Empire to amend the terms of this Agreement in good faith in order to determine,
in its discretion in the exercise of its fiduciary duties, whether Empire's
offer upon acceptance by Commonwealth would result in such Superior Proposal
ceasing to be a Superior Proposal. If the Board of Directors of Commonwealth so
determines, it will enter into an amended agreement with Empire reflecting
Empire's amended proposal. If the Board of Directors of Commonwealth continues
to believe, in good faith and after consultation with financial advisors and
outside counsel, that such Superior Proposal remains a Superior Proposal and
therefore rejects Empire's amended proposal, Commonwealth may terminate this
Agreement pursuant to ss.6.3(c)(iv); provided, however, that Commonwealth must
concurrently pay to Empire the break fee, if any, payable to Empire under ss.6.4
and must concurrently with termination enter into a definitive agreement with
respect to such Acquisition Proposal. Commonwealth acknowledges and agrees that
payment of the break fee, if any, payable under ss.6.4 is a condition to valid
termination of this Agreement under ss.6.3(c)(iv) and this ss.4.6.
Commonwealth also acknowledges and agrees that each successive modification of
any Acquisition Proposal shall constitute a new Acquisition Proposal for
purposes of the requirement under clause (ii) of this ss.4.6 to initiate an
additional five Business Day notice period.
Access to Information
4.7 (a) Subject to sections 4.7(b) and (c) and applicable Laws, upon reasonable
notice, each of Commonwealth and Empire shall (and shall cause each of
their subsidiaries to) afford the other's officers, employees, counsel,
38
accountants and other authorized representatives and advisors
("Representatives") access, during normal business hours from the date
hereof and until the earlier of the Effective Date or the termination of
this Agreement, to their properties, books, contracts and records as well
as to its management personnel, and, during such period, Commonwealth and
Empire shall (and shall cause each of their subsidiaries to) furnish
promptly to the other all information concerning that party's business,
properties and personnel as the other may reasonably request. Nothing in
the foregoing shall require a party to disclose information subject to a
written confidentiality agreement with third parties or customer-specific
or competitively sensitive information relating to areas or projects where
a party is in direct competition with the other.
(b) In accordance with the Confidentiality Agreement, each of Empire and
Commonwealth acknowledges that certain information provided to it under
ss.4.7(a) above will be non-public and/or proprietary in nature (the
"Information"). Except as permitted below, each of Empire and Commonwealth
will keep Information confidential and will not, without the prior written
consent of the other, disclose it, in any manner whatsoever, in whole or in
part, to any other Person, and will not use it for any purpose other than
to evaluate the transactions contemplated by this Agreement. Each of Empire
and Commonwealth will make all reasonable, necessary and appropriate
efforts to safeguard the Information from disclosure to anyone other than
as permitted hereby and to control the copies, extracts or reproductions
made of the Information. The Information may be provided to the
Representatives of each of Empire and Commonwealth who require access to
the same to assist it in proceeding in good faith with the transactions
contemplated by this Agreement and whose assistance is required for such
purposes, provided that it has first informed such Representatives to whom
Information is provided that the Representative has the same obligations,
including as to confidentiality, restricted use and otherwise, that it has
with respect to such Information. This provision shall not apply to such
portions of the Information that: (i) are or become generally available to
the public otherwise than as a result of disclosure by a party or its
Representatives; or (ii) become available to a party on a non-confidential
basis from a source other than, directly or indirectly, the other party or
its Representatives, provided that such source is not to the knowledge of
the first party, upon reasonable inquiry, prohibited from transmitting the
Information by a contractual, legal or fiduciary obligation; (iii) were
known to a party or were in its possession on a non-confidential basis
prior to being disclosed to it by the other party or by someone on its
behalf; or (iv) are required by applicable Laws or court order to be
disclosed. The provisions of this ss.4.7(b) shall survive the termination
of this Agreement.
(c) The parties acknowledge that certain Information may be competitively
sensitive and that disclosure thereof shall be limited to that which is
reasonably necessary for the purpose of (i) preparing submissions or
applications in order to obtain the Appropriate Regulatory Approvals, (ii)
preparing the Circular, (iii) avoiding conflicts and (iv) integrating the
operations of Empire and Commonwealth.
39
Closing Matters
4.8 Each of the Empire Parties and Commonwealth shall deliver, at the closing of
the transactions contemplated hereby, such customary certificates, resolutions
and other closing documents as may be required by the other parties hereto,
acting reasonably. Two directors of Commonwealth will be appointed to the Empire
board at Closing and Empire shall take all reasonable actions to keep them
elected to the board of Empire for a five-year period.
Indemnification
4.9 (a) Empire agrees that all rights to indemnification or exculpation now
existing in favour of the directors or officers of Commonwealth or any
subsidiary as provided in its articles of incorporation or by-laws in
effect on the date hereof shall survive the Arrangement and shall continue
in full force and effect for a period of not less than three years from the
Effective Time and Empire hereby assumes, effective upon consummation of
the Arrangement, all such liability with respect to any matters arising
prior to the Effective Time.
(b) There shall be maintained in effect, for not less than three years from
the Effective Time, coverage equivalent to that in effect under the current
policies of the directors' and officers' liability insurance maintained by
Commonwealth or any of its subsidiaries, as the case may be, which is no
less advantageous, and with no gaps or lapses in coverages with respect to
matters occurring prior to the Effective Time.
Employment Agreements and Related Matters
4.10 Empire covenants and agrees, and after the Effective Time will cause
Commonwealth or any of its subsidiaries, as the case may be, and any successor
to Commonwealth to agree, to honour and comply with the terms of those existing
employment and severance agreements of Commonwealth or any of its subsidiaries,
as the case may be, which Commonwealth has disclosed to Empire. In particular,
Empire acknowledges Commonwealth has committed to retain the three existing
Commonwealth executives for a minimum of five years for aggregate compensation
of not less than $10,000 per month and to locate them in the White Rock office
to be maintained for an additional $2,000 per month. In addition to the
Replacement Options provided for herein, such executives shall receive directly
a number of Empire stock options equal to 10% of the number of Exchangeable
Shares issued at Closing exercisable at a price of US$3.00 per share for a
five-year period.
Prohibition on Voluntary Liquidation
4.11 The Empire Parties shall not, and agree to cause Empire Holdings to not,
take any action relating to a voluntary liquidation, dissolution or winding-up
of Empire Exchangeco or its successors or Empire Holdings or its successors, as
the case may be, prior to the Redemption Date (as defined in the Plan of
Arrangement).
40
Part 5
CONDITIONS
Mutual Conditions Precedent
5.1 The respective obligations of the parties hereto to complete the
transactions contemplated by this Agreement shall be subject to the
satisfaction, on or before the Effective Date, of the following conditions
precedent, each of which may only be waived by the mutual consent of Empire, on
behalf of the Empire Parties, and Commonwealth:
(a) the Arrangement shall have been approved at the Commonwealth Meeting by
not less than two-thirds (66-2/3%) of the votes cast by the holders of
Commonwealth Common Shares who are represented at the Commonwealth Meeting
as well as two-thirds (66-2/3%) of all Commonwealth Securityholders;
(b) the Arrangement shall have been approved at the Commonwealth Meeting in
accordance with any conditions in addition to those set out in ss.5.1(a)
which may be imposed by the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained in
form and terms satisfactory to each of Commonwealth and Empire, acting
reasonably, and shall not have been set aside or modified in a manner
unacceptable to such parties on appeal or otherwise;
(d) there shall not be in force any order or decree restraining or
enjoining the consummation of the transactions contemplated by this
Agreement and there shall be no proceeding (other than an appeal made in
connection with the Arrangement), of a judicial or administrative nature or
otherwise, brought by a Governmental Entity in progress or threatened that
relates to or results from the transactions contemplated by this Agreement
that would, if successful, result in an order or ruling that would preclude
completion of the transactions contemplated by this Agreement in accordance
with the terms hereof or would otherwise be inconsistent with the
Appropriate Regulatory Approvals which have been obtained;
(e) Empire will have received conditional approval for the Empire Shares to
be listed on either the AMEX market or the CDNX;
(f) this Agreement shall not have been terminated pursuant to Part 6; and
(g) all consents, waivers, permits, orders and approvals of any
Governmental Entity (including the Appropriate Regulatory Approvals), and
the expiry of any waiting periods, in connection with, or required to
permit, the consummation of the Arrangement, the failure of which to obtain
or the non-expiry of which would constitute a criminal offence, or would
have a Material Adverse Effect on Empire or Commonwealth, as the case may
be, shall have been obtained or received on terms that will not have a
Material Adverse Effect on Empire and/or Commonwealth; there shall not be
pending or threatened any suit, action or proceeding by any Governmental
Entity, in each case that has a reasonable likelihood of success, (i)
seeking to prohibit or restrict the acquisition by Empire or any of its
subsidiaries of any Commonwealth Common Shares, seeking to restrain or
prohibit the consummation of the Plan of Arrangement or seeking to obtain
from Commonwealth or Empire any damages that are material in relation to
41
Commonwealth and its subsidiaries taken as a whole, (ii) seeking to
prohibit or materially limit the ownership or operation by Empire or any of
its subsidiaries of any material portion of the business or assets of
Commonwealth or any of its subsidiaries or to compel Empire or any of its
subsidiaries to dispose of or hold separate any material portion of the
business or assets of Commonwealth or any of its subsidiaries, as a result
of the Plan of Arrangement, (iii) seeking to impose limitations on the
ability of Empire or any of its subsidiaries to acquire or hold, or
exercise full rights of ownership of, any Commonwealth Common Shares,
including the right to vote the Commonwealth Common Shares purchased by it
on all matters properly presented to the shareholders of Commonwealth, (iv)
seeking to prohibit Empire or any of its subsidiaries from effectively
controlling in any material respect the business or operations of
Commonwealth and its Material Subsidiaries or (v) which otherwise is
reasonably likely to have a Material Adverse Effect on Commonwealth or
Empire.
Additional Conditions Precedent to the Obligations of the Empire Parties
5.2 The obligations of the Empire Parties to complete the transactions
contemplated by this Agreement shall also be subject to the fulfilment of each
of the following conditions precedent (each of which is for the Empire Parties'
exclusive benefit and may be waived by Empire on behalf of the Empire Parties):
(a) all covenants of Commonwealth under this Agreement to be performed on
or before the Effective Date shall have been duly performed by Commonwealth
in all material respects;
(b) the representations and warranties of Commonwealth shall be true and
correct in all material respects as of the Effective Date as if made on and
as of such date (except to the extent such representations and warranties
speak as of an earlier date, in which event such representations and
warranties shall be true and correct in all material respects as of such
earlier date, or except as affected by transactions contemplated or
permitted by this Agreement) and the Empire Parties shall have received a
certificate of Commonwealth addressed to the Empire Parties and dated the
Effective Date, signed on behalf of Commonwealth by two senior executive
officers of Commonwealth, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have
occurred a Material Adverse Change to Commonwealth; and
(d) the Board of Directors of Commonwealth shall have adopted all necessary
resolutions, and all other necessary corporate action shall have been taken
by Commonwealth and the subsidiaries to permit the consummation of the
Arrangement.
42
The Empire Parties may not rely on the failure to satisfy any of the above
conditions precedent as a basis for non-compliance by the Empire Parties with
their obligations under this Agreement if the condition precedent would have
been satisfied but for a material default by the Empire Parties in complying
with their obligations hereunder.
Additional Conditions Precedent to the Obligations of Commonwealth
5.3 The obligations of Commonwealth to complete the transactions contemplated by
this Agreement shall also be subject to the following conditions precedent (each
of which is for the exclusive benefit of Commonwealth and may be waived by
Commonwealth):
(a) all covenants of the Empire Parties under this Agreement to be
performed on or before the Effective Date shall have been duly performed by
the Empire Parties in all material respects;
(b) all representations and warranties of the Empire Parties under this
Agreement shall be true and correct in all material respects as of the
Effective Date as if made on and as of such date (except to the extent such
representations and warranties speak as of an earlier date, in which event
such representations and warranties shall be true and correct in all
material respects as of such earlier date, or except as affected by
transactions contemplated or permitted by this Agreement) and Commonwealth
shall have received a certificate of each of the Empire Parties addressed
to Commonwealth and dated the Effective Date, signed on behalf of each of
the Empire Parties by two senior executive officers of the relevant Empire
Party, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have
occurred a Material Adverse Change to Empire;
(d) the Boards of Directors of the Empire Parties shall have adopted all
necessary resolutions, and all other necessary corporate action shall have
been taken by the Empire Parties to permit the consummation of the
Arrangement and the issue of the Exchangeable Shares and Redeemable Voting
Shares contemplated thereby and the issue of Empire Common Shares pursuant
to the Arrangement and upon the exchange from time to time of the
Exchangeable Shares and the exercise from time to time of the Replacement
Options;
(e) the Common Shares of Empire must trade at a weighted average price of
not less than $1.20 during the five business days prior to Closing;
(f) Empire's share of hydrocarbon production from its properties during the
30 days prior to Closing must average 150 barrels of oil (or BTU
equivalent) per day; and
(g) Empire will have at Closing, working capital calculated in accordance
with generally accepted accounting principles of $100,000.
Commonwealth may not rely on the failure to satisfy any of the above conditions
precedent as a basis for non-compliance by Commonwealth with its obligations
under this Agreement if the condition precedent would have been satisfied but
for a material default by Commonwealth in complying with its obligations
hereunder.
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Notice and Cure Provisions
5.4 The Empire Parties and Commonwealth will give prompt notice to the other of
the occurrence, or failure to occur, at any time from the date hereof until the
Effective Date, of any event or state of facts which occurrence or failure
would, or would be likely to:
(a) cause any of the representations or warranties of the other party
contained herein to be untrue or inaccurate in any material respect on the
date hereof or on the Effective Date; or
(b) result in the failure in any material respect to comply with or satisfy
any covenant, condition or agreement to be complied with or satisfied by
the other hereunder prior to the Effective Date.
Neither the Empire Parties nor Commonwealth may elect not to complete the
transactions contemplated hereby pursuant to the conditions precedent contained
in sections 5.1, 5.2 and 5.3, or exercise any termination right arising
therefrom, unless forthwith and in any event prior to the filing of the Final
Order for acceptance by the Director, the Empire Parties or Commonwealth, as the
case may be, have delivered a written notice to the other specifying in
reasonable detail all breaches of covenants, representations and warranties or
other matters which the Empire Parties or Commonwealth, as the case may be, are
asserting as the basis for the non-fulfilment of the applicable condition
precedent or the exercise of the termination right, as the case may be. If any
such notice is delivered, provided that the Empire Parties or Commonwealth, as
the case may be, are proceeding diligently to cure such matter, if such matter
is susceptible to being cured, the other may not terminate this Agreement as a
result thereof until the later of January 31, 2001 and the expiration of a
period of 30 days from such notice. If such notice has been delivered prior to
the date of the Commonwealth Meeting, such meeting shall be postponed until the
expiry of such period. If such notice has been delivered prior to the making of
the application for the Final Order or the filing of the Articles of Arrangement
with the Director, such application and such filing shall be postponed until the
expiry of such period. For greater certainty, in the event that such matter is
cured within the time period referred to herein, this Agreement may not be
terminated.
Satisfaction of Conditions
5.5 The conditions precedent set out in ss.5.1, ss.5.2 and ss.5.3 shall be
conclusively deemed to have been satisfied, waived or released when, with the
agreement of Empire and Commonwealth, a certificate of arrangement in respect of
the Arrangement is issued by the Director.
44
Part 6
AMENDMENT AND TERMINATION
Amendment
6.1 This Agreement may, at any time and from time to time before or after the
holding of the Commonwealth Meeting but not later than the Effective Date, be
amended by mutual written agreement of the parties hereto, and any such
amendment may, without limitation:
(a) change the time for performance of any of the obligations or acts of
the parties;
(b) waive any inaccuracies or modify any representation contained herein or
in any document delivered pursuant hereto;
(c) waive compliance with or modify any of the covenants herein contained
and waive or modify performance of any of the obligations of the parties;
and
(d) waive compliance with or modify any conditions precedent herein
contained;
provided, however, that any such change, waiver or modification does not
invalidate any required security holder approval of the Arrangement.
Mutual Understanding Regarding Amendments
6.2 (a) The parties will continue, from and after the date hereof and through
and including the Effective Date, to use their respective reasonable
efforts to maximize present and future financial and tax planning
opportunities for the shareholders of Commonwealth, and for Empire and for
Commonwealth as and to the extent that the same shall not prejudice any
party or its security holders. The parties will ensure that such planning
activities do not impede the progress of the Arrangement in any material
way.
(b) The parties agree that if the Empire Parties or Commonwealth, as the
case may be, propose any amendment or amendments to this Agreement or to
the Plan of Arrangement, the other will act reasonably in considering such
amendment and if the other and its shareholders are not prejudiced by
reason of any such amendment the other will co-operate in a reasonable
fashion with the Empire Parties or Commonwealth, as the case may be, so
that such amendment can be effected subject to applicable Laws and the
rights of the security holders.
Termination
6.3 (a) If any condition contained in ss.5.1 or ss.5.2 is not satisfied at or
before the Effective Date to the satisfaction of the Empire Parties, then
Empire on behalf of the Empire Parties may by notice to Commonwealth
terminate this Agreement and the obligations of the parties hereunder
except as otherwise herein provided, but without detracting from the rights
of the Empire Parties arising from any breach by Commonwealth but for which
the condition would have been satisfied.
45
(b) If any condition contained in ss.5.1 or ss.5.3 is not satisfied at or
before the Effective Date to the satisfaction of Commonwealth, then
Commonwealth may by notice to Empire on behalf of the Empire Parties
terminate this Agreement and the obligations of the parties hereunder
except as otherwise herein provided, but without detracting from the rights
of Commonwealth arising from any breach by the Empire Parties but for which
the condition would have been satisfied.
(c) This Agreement may:
(i) be terminated by the mutual agreement of Commonwealth and the
Empire Parties (without further action on the part of the Commonwealth
Securityholders if terminated after the holding of the Commonwealth
Meeting);
(ii) be terminated by either Commonwealth or Empire, if there shall be
passed any law or regulation that makes consummation of the
transactions contemplated by this Agreement illegal or otherwise
prohibited or if any injunction, order or decree enjoining Empire or
Commonwealth from consummating the transactions contemplated by this
Agreement is entered and such injunction, order or decree shall become
final and non-appealable;
(iii) be terminated by Empire if (A) the Board of Directors of
Commonwealth shall have failed to recommend or withdrawn or modified
or changed in a manner adverse to Empire its approval or
recommendation of this Agreement or the Arrangement or shall have
recommended an Acquisition Proposal or (B) through the fault of
Commonwealth (whether by commission or omission), this Arrangement is
not, prior to 14 days prior to the Termination Date, submitted for the
approval of the holders of Commonwealth Common Shares and the
Commonwealth Securityholders at the Commonwealth Meeting;
(iv) be terminated by Commonwealth in order to enter into a definitive
written agreement with respect to a Superior Proposal, subject to
compliance with ss.4.6 and the payment of any fee required to be paid
pursuant to ss.6.4(a); or
(v) be terminated by Commonwealth or Empire if Commonwealth Common
Share holder and Commonwealth Securityholder approval shall not have
been obtained by reason of the failure to obtain the required vote at
the Commonwealth Meeting;
in each case, prior to the Effective Date.
(d) If the Effective Date does not occur on or prior to the Termination
Date, then this Agreement shall terminate.
(e) If this Agreement is terminated in accordance with the foregoing
provisions of this ss.6.3, no party shall have any further liability to
perform its obligations hereunder except as provided in ss.6.3(f) and
ss.6.4 and as otherwise contemplated hereby, and provided that, subject to
ss.6.5, neither the termination of this Agreement nor anything contained in
this ss.6.3(e) shall relieve any party from any liability for any breach by
it of this Agreement, including from any inaccuracy in its representations
and warranties and any non-performance by it of its covenants made herein.
46
(f) If this Agreement is terminated by Empire for any reason, Empire shall
pay Commonwealth a contribution equal to 50% of the costs of Commonwealth
for legal fees and disbursements and the costs of convening the
Commonwealth Securityholders' Meeting.
Break Fee
6.4 (a) If:
(i) Commonwealth shall terminate this Agreement pursuant to
ss.6.3(c)(iv), unless at the time of such termination, a Specified
Empire Event has occurred and is continuing;
(ii) Empire shall terminate this Agreement pursuant to ss.6.3(c)(iii),
unless at the time of such failure to recommend, withdrawal or adverse
modification or change, or recommendation of an Acquisition Proposal,
a Specified Empire Event has occurred and is continuing; or
(iii) either Commonwealth or Empire shall terminate this Agreement
pursuant to ss.6.3(c)(v) in circumstances where Commonwealth
Securityholder approval has not been obtained at the Commonwealth
Meeting, and (x) a bona fide Acquisition Proposal has been made by any
person other than a Empire Party prior to the Commonwealth Meeting and
not withdrawn more than five days prior to the vote of the
Commonwealth Securityholders and (y) Commonwealth enters into an
agreement with respect to an Acquisition Proposal, or an Acquisition
Proposal is consummated, after the date hereof and prior to the
expiration of 18 months following termination of this Agreement,
unless at the time of the Commonwealth Meeting a Specified Empire
Event has occurred and is continuing;
then in any such case Commonwealth shall pay to Empire US$10,000 in
immediately available funds to an account designated by Empire. Such
payment shall be due (A) in the case of a termination specified in clause
(i), prior to the termination of this Agreement, (B) in the case of a
termination specified in clause (ii), within five Business Days after
written notice of termination by Empire or (C) in the case of a termination
specified in clause (iii), at or prior to the earlier of the entering into
of the agreement and the consummation of the transaction referred to
therein. Commonwealth shall not be obligated to make more than one payment
pursuant to this ss.6.4(a).
(b) If the holders of the Commonwealth Common Shares shall fail to approve
the Arrangement (unless a Specified Empire Event has occurred and is
continuing) at the Commonwealth Meeting, then at 11:00 a.m., Vancouver
time, on the first Business Day following the Commonwealth Meeting,
Commonwealth shall pay to Empire US$10,000 as payment in full of the Empire
Parties' out-of-pocket costs and expenses in connection with the
transaction contemplated by this Agreement in immediately available funds
to an account designated by Empire. Any payment due under ss.6.4(a) shall
be reduced dollar-for-dollar by any payment previously made under this
ss.6.4(b).
47
Effect of Break Fee Payment
6.5 For greater certainty, the parties hereto agree that if Commonwealth pays to
Empire amounts required by ss.6.4(a) as a result of the occurrence of any of the
events referenced in ss.6.4(a), the Empire Parties shall have no other remedy
for any breach of this Agreement by Commonwealth.
Remedies
6.6 Subject to ss.6.5, the parties hereto acknowledge and agree that an award of
money damages would be inadequate for any breach of this Agreement by any party
or its representatives and any such breach would cause the non-breaching party
irreparable harm. Accordingly, the parties hereto agree that, in the event of
any breach or threatened breach of this Agreement by one of the parties, the
non-breaching party will also be entitled, without the requirement of posting a
bond or other security, to equitable relief, including injunctive relief and
specific performance. Such remedies will not be the exclusive remedies for any
breach of this Agreement but will be in addition to all other remedies available
at law or equity to each of the parties.
Part 7
GENERAL
Notices
7.1 All notices and other communications which may or are required to be given
pursuant to any provision of this Agreement shall be given or made in writing
and shall be deemed to be validly given if served personally or by telecopy, in
each case addressed to the particular party at:
(a) If to Commonwealth, at:
Commonwealth Energy Corp.
Suite 211
2383 King George Hwy
White Rock, BC V4A 5A4
Attention: Mr. Lorne Torhjelm, President and CEO
Telecopier No.: (604) 536-2369
with a copy to:
Lang Michener Lawrence & Shaw
1500 - 1055 West Georgia Street
Vancouver, BC V6E 4N7
Attention: Mr. Bernie Zinkhofer
Telecopier No.: (604) 685-7084
48
(b) If to an Empire Party, at:
Empire Energy Corporation
Suite 1215, 7500 College Blvd.
Overland Park, Kansas 66210 USA
Attention: Mr. Norm Peterson, President
Telecopier No.: (913) 469-1544
with a copy to:
Mr. Troy Renkemeyer
Attorney
900 Lighton Plaza Tower
7500 College Blvd.
Overland Park, Kansas 66210 USA
Telecopier No.: (913) 906-9840
or at such other address of which any party may, from time to time, advise the
other parties by notice in writing given in accordance with the foregoing. The
date of receipt of any such notice shall be deemed to be the date of delivery or
telecopying thereof.
Assignment
7.2 No party hereto may assign its rights or obligations under this Agreement or
the Arrangement.
Binding Effect
7.3 This Agreement and the Arrangement shall be binding upon and shall enure to
the benefit of the parties hereto and their respective successors and no third
party shall have any rights hereunder.
Waiver and Modification
7.4 Commonwealth and the Empire Parties may waive or consent to the modification
of, in whole or in part, any inaccuracy of any representation or warranty made
to them hereunder or in any document to be delivered pursuant hereto and may
waive or consent to the modification of any of the covenants herein contained
for their respective benefit or waive or consent to the modification of any of
the obligations of the other parties hereto. Any waiver or consent to the
modification of any of the provisions of this Agreement, to be effective, must
be in writing executed by the party granting such waiver or consent.
49
No Personal Liability
7.5 (a) No director or officer of any Empire Party shall have any personal
liability whatsoever to Commonwealth under this Agreement, or any other
document delivered in connection with the Arrangement on behalf of a Empire
Party.
(b) No director or officer of Commonwealth shall have any personal
liability whatsoever to any Empire Party under this Agreement, or any other
document delivered in connection with the Arrangement on behalf of
Commonwealth.
Further Assurances
7.6 Each party hereto shall, from time to time, and at all times hereafter, at
the request of the other parties hereto, but without further consideration, do
all such further acts and execute and deliver all such further documents and
instruments as shall be reasonably required in order to fully perform and carry
out the terms and intent hereof.
Expenses
7.7 (a) Subject to ss.6.4, the parties agree that all out-of-pocket expenses of
the parties relating to the Arrangement and the transactions contemplated
hereby, including legal fees, accounting fees, financial advisory fees,
regulatory filing fees, all disbursements of advisors and printing and
mailing costs, shall be paid by the party incurring such expenses.
(b) Commonwealth represents and warrants to the Empire Parties that no
broker, finder or investment banker is or will be entitled to any
brokerage, finder's or other fee or commission from Commonwealth or any
subsidiary of Commonwealth in connection with the transactions contemplated
hereby or by the Arrangement.
Consultation
7.8 Empire and Commonwealth agree to consult with each other as to the general
nature of any news releases or public statements with respect to this Agreement
or the Arrangement, and to use their respective reasonable efforts not to issue
any news releases or public statements inconsistent with the results of such
consultations. Subject to applicable Laws, each party shall use its reasonable
efforts to enable the other parties to review and comment on all such news
releases prior to the release thereof. The parties agree to issue jointly a news
release with respect to this Arrangement as soon as practicable following the
execution of this Agreement. Empire and Commonwealth also agree to consult with
each other in preparing and making any filings and communications in connection
with any Appropriate Regulatory Approvals.
50
Governing Laws
7.9 This Agreement shall be governed by and construed in accordance with the
laws of the Province of Alberta and the laws of Canada applicable therein and
shall be treated in all respects as a Alberta contract. Each party hereby
irrevocably attorns to the jurisdiction of the courts of the Province of Alberta
in respect of all matters arising under or in relation to this Agreement.
Time of Essence
7.10 Time shall be of the essence in this Agreement.
Counterparts
7.11 This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original but all of which together shall constitute one
and the same instrument.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the
date first written above.
EMPIRE ENERGY CORPORATION
Per:
- --------------------------------------------
Authorized Signatory
EMPIRE EXCHANGECO LIMITED
being 3828395 Canada Ltd.
Per:
- --------------------------------------------
Authorized Signatory
COMMONWEALTH ENERGY CORP.
Per:
- --------------------------------------------
Authorized Signatory
51
SCHEDULE A
Form of Affiliate's Letter
Dear Sirs:
The undersigned, a holder of common shares ("Commonwealth Common Shares") of
Commonwealth Energy Corp. ("Commonwealth"), a corporation existing under the
laws of Canada is entitled to receive in connection with the arrangement
pursuant to Section 192 of the Canada Business Corporations Act, R.S.C. 1995, c.
C-44 (the "Arrangement") to be entered into pursuant to the Merger Agreement
dated as of December 12, 2000 among Commonwealth, Empire Energy Corporation, a
corporation existing under the laws of the State of Utah ("Empire"), and Empire
Exchangeco Ltd., a company existing under the laws of Canada ("Empire
Exchangeco"), exchangeable shares (the "Exchangeable Shares") of Empire
Exchangeco. The undersigned acknowledges that the undersigned may be deemed an
"affiliate" of Empire within the meaning of Rule 145 ("Rule 145") promulgated
under the U.S. Securities Act of 1933, as amended (the "Securities Act"), by the
U.S. Securities and Exchange Commission (the "SEC"), although nothing contained
herein should be construed as an admission of such fact or a waiver of any
rights the undersigned may have to object to any claim that the undersigned is
such an affiliate.
If in fact the undersigned were such an affiliate, the undersigned's ability to
sell, assign or transfer:
(a) the Exchangeable Shares received by the undersigned in exchange for any
Commonwealth Common Shares in connection with the Arrangement; and
(b) any shares of common stock of Empire (collectively, with the
Exchangeable Shares, the "Securities") for which the Exchangeable Shares
may be exchanged;
may be restricted unless such transaction is registered under the Securities Act
or an exemption from such registration is available. The undersigned understands
that such exemptions are limited and the undersigned has obtained or will obtain
advice of counsel as to the nature and conditions of such exemptions, including
information with respect to the applicability to the sale of the Securities of
Rules 144 and 145(d) promulgated under the Securities Act. The undersigned
understands that Empire will not be required to maintain the effectiveness of
any registration statement under the Securities Act for the purpose of resale of
Securities by the undersigned.
The undersigned hereby represents and covenants with Empire that the undersigned
will not sell, assign or transfer any of the Securities received by the
undersigned in exchange for Commonwealth Common Shares in connection with the
Arrangement except:
(a) pursuant to an effective registration statement under the Securities
Act;
(b) in conformity with Rule 145; or
(c) in a transaction which, in the opinion of the general counsel of Empire
or other counsel reasonably satisfactory to Empire or as described in a
"no-action" or interpretative letter from the staff of the SEC specifically
issued with respect to a transaction to be engaged in by the undersigned,
is not required to be registered under the Securities Act.
In the event of a sale or other disposition by the undersigned of Securities
pursuant to Rule 145, the undersigned will supply Empire with evidence of
compliance with such Rule, in the form of a letter substantially in the form of
Annex I hereto.
Empire covenants that it will take all such actions as may be reasonably
available to it to permit the sale or other disposition of Securities by the
undersigned under Rule 145 in accordance with the terms thereof.
The undersigned also understands that there will be placed on any certificates
for the Securities issued to the undersigned a legend stating in substance:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN A TRANSACTION TO
WHICH RULE 145 PROMULGATED UNDER THE SECURITIES ACT OF 1933 APPLIES. THE
SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF ONLY IN ACCORDANCE WITH THE TERMS OF A LETTER AGREEMENT BETWEEN THE
REGISTERED HOLDER HEREOF AND EMPIRE ENERGY CORP., A COPY OF WHICH AGREEMENT IS
ON FILE AT THE PRINCIPAL OFFICES OF EMPIRE ENERGY CORPORATION."
The undersigned also understands that unless a sale or transfer by the
undersigned of the undersigned's Securities has been registered under the Act or
is a sale made in conformity with the provisions of Rule 145 under the Act,
Empire reserves the right to put the following legend on the certificates issued
to the undersigned's transferee:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 AND WERE ACQUIRED FROM A PERSON WHO RECEIVED SUCH
SECURITIES IN A TRANSACTION TO WHICH RULE 145 PROMULGATED UNDER THE SECURITIES
ACT OF 1933 APPLIES. THE SECURITIES HAVE NOT BEEN ACQUIRED BY THE HOLDER WITH A
VIEW TO, OR FOR RESALE IN CONNECTION WITH, ANY DISTRIBUTION THEREOF WITHIN THE
MEANING OF THE SECURITIES ACT OF 1933 AND MAY NOT BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR
IN ACCORDANCE WITH AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT OF 1933."
It is understood and agreed that the legends set forth above shall be removed by
delivery of substitute certificates without such legend if (i) the securities
represented thereby have been registered for sale by the undersigned under the
Securities Act or (ii) Empire has received either an opinion of counsel, which
opinion and counsel shall be reasonably satisfactory to Empire, or a "no-action"
letter obtained by the undersigned from the staff of the Commission, to the
effect that the restrictions imposed by Rule 145 under the Act no longer apply
to the undersigned.
2
The undersigned acknowledges that:
(a) the undersigned has carefully read this letter and understands the
requirements hereof and the limitations imposed upon the distribution,
sale, transfer or other disposition of the Securities, and
(b) the receipt by Empire and Empire Exchangeco of this letter is an
inducement to Empire and Empire Exchangeco to consummate the Agreement.
Very truly yours,
DATED:
- --------------------------------------------
Accepted and agreed to this _____ day of __, 2001.
EMPIRE ENERGY CORPORATION
Per:
- --------------------------------------------
Authorized Signatory
3
ANNEX I
[Name]
On __, the undersigned sold the securities below (the "Securities"). The
Securities were received by file undersigned in connection with the arrangement
pursuant to section 192 of the Canada Business Corporations Act, R.S.C. 1995, c.
C-44 entered into pursuant to the Merger Agreement dated as of November __, 2000
among Commonwealth Energy Corp., a corporation existing under the laws of
Canada, Empire Energy Corporation, a corporation existing under the laws of the
State of Utah ("Empire"), and Empire Exchangeco Ltd., a company existing under
the laws of Canada.
The undersigned hereby represents to Empire that the sale of the Securities was
made in compliance with Rule 145 promulgated under the U.S. Securities Act of
1933, as amended.
Very truly yours,
[Space to be provided for description of the Securities sold]
SCHEDULE B
APPROPRIATE REGULATORY APPROVALS
Canada
o exemption orders (or legal opinions that such orders are not necessary)
from the provincial securities regulators from the registration and
prospectus requirements with respect to the Exchangeable Share structure
o approval to delist of the Canadian Venture Exchange Inc.
United States and Other
o conditional approval of AMEX or the CDNX regarding the listing of the
Empire Common Shares on AMEX or CDNX subject to official notice of issuance
SCHEDULE C
ARRANGEMENT RESOLUTIONS
RESOLVED, as special resolutions, that:
1. The arrangement (the "Arrangement") under Section 192 of the Canada
Business Corporations Act (the "CBCA") involving Commonwealth Energy Corp.
("Commonwealth"), as more particularly described and set forth in the
Management Information Circular (the "Circular") of Commonwealth dated
January 8, 2001 accompanying the notice of this meeting (as the Arrangement
may be modified or amended) is hereby authorized, approved and adopted.
2. The plan of arrangement (the "Plan of Arrangement") involving Commonwealth,
the full text of which is set out as Schedule A to the Circular (as the
Plan of Arrangement may be or may have been amended) is hereby approved and
adopted.
3. Notwithstanding that this resolution has been passed (and the Arrangement
adopted) by the Commonwealth Securityholders or that the Arrangement has
been approved by the Court of Queen's Bench Alberta, the directors of
Commonwealth are hereby authorized and empowered (i) to amend the
Arrangement Agreement, or the Plan of Arrangement to the extent permitted
by the Arrangement Agreement, and (ii) not to proceed with the arrangement
without further approval of the Commonwealth Securityholders, but only if
the Arrangement Agreement is terminated in accordance with Article 6
thereof.
4. Any officer or director of Commonwealth is hereby authorized and directed
for and on behalf of Commonwealth to execute, under the seal of
Commonwealth or otherwise, and to deliver articles of arrangement and such
other documents as are necessary or desirable to the Director under the
CBCA in accordance with the Arrangement Agreement for filing.
5. Any officer or director of Commonwealth is hereby authorized and directed
for and on behalf of Commonwealth to execute or cause to be executed, under
the seal of Commonwealth or otherwise, and to deliver or cause to be
delivered, all such other documents and instruments and to perform or cause
to be performed all such other acts and things as in such person's opinion
may be necessary or desirable to give full effect to the foregoing
resolution and the matters authorized thereby, such determination to be
conclusively evidenced by the execution and delivery of such document,
agreement or instrument or the doing of any such act or thing.
Please note: Schedules D, E, F and H are incorporated in separate documents,
requiring separate e-mail transmission.
SCHEDULE G
COMMONWEALTH CAPITALIZATION TABLE
COMMONWEALTH ENERGY CORP.
SHARE STRUCTURE
- ------------------------------------------------------------------------------
ISSUED & OUTSTANDING 32,578,544
- ------------------------------------------------------------------------------
STOCK OPTIONS GRANTED AT 600,000
$0.20 / SHARE
- ------------------------------------------------------------------------------
STOCK OPTIONS GRANTED AT 600,000
$0.25 / SHARE
- ------------------------------------------------------------------------------
STOCK OPTIONS GRANTED AT 1,678,504
$0.30 / SHARE
- ------------------------------------------------------------------------------
STOCK OPTIONS GRANTED AT 50,000
$0.45 / SHARE
- ------------------------------------------------------------------------------
WARRANTS ISSUED AT 974,612
$0.30 / SHARE
- ------------------------------------------------------------------------------
CURRENT FULLY DILUTED OUTSTANDING SHARES 36,481,660
- ------------------------------------------------------------------------------
*NOTE: The current Private Placement being conducted at $0.25 / Share which
has not yet closed will add an additional 2,000,000 Shares and
2,000,000 Warrants (exercisable at $0.30 / Share) to the above totals.
COMMONWEALTH ENERGY CORP.
STOCK OPTIONS SUMMARY
- ----------------------- --------------------- ----------------- ---------------------- ------------------
Name & Position Number of Common Exercise Price Date of Grant Expiry Date
Shares under Option / Common Share
- ----------------------- --------------------- ----------------- ---------------------- ------------------
Lorne Torhjelm, 500,000 0.20 / Share November 30, 1999 November 30, 2004
(President, CEO & 563,436 0.30 / Share January 18, 2000 January 18, 2005
Director)
- ----------------------- --------------------- ----------------- ---------------------- ------------------
Robert C. Stewart 50,663 0.30 / Share December 21, 1998 December 21, 2003
(Secretary & Director) 600,000 0.25 / Share October 23, 2000 October 23, 2005
- ----------------------- --------------------- ----------------- ---------------------- ------------------
Sieg Deckert 514,405 0.30 / Share January 18, 2000 January 18, 2005
(Director)
- ----------------------- --------------------- ----------------- ---------------------- ------------------
Doug Wolters 100,000 0.30 / Share December 21, 1998 December 21, 2003
(Office Manager) 100,000 0.20 / Share November 30, 1999 November 30, 2004
50,000 0.45 / Share April 17, 2000 April 17, 2005
- ----------------------- --------------------- ----------------- ---------------------- ------------------
Gordon Bradford 250,000 0.30 / Share January 18, 2000 January 18, 2005
(Director)
- ----------------------- --------------------- ----------------- ---------------------- ------------------
Fred Chelstad 200,000 0.30 / Share January 18, 2000 January 18, 2005
(Director)
- ----------------------- --------------------- ----------------- ---------------------- ------------------
Total: 2,928,504
- ----------------------- --------------------- ----------------- ---------------------- ------------------
COMMONWEALTH ENERGY CORP.
WARRANTS OUTSTANDING
- --------------------------------------------------------------------------------
Sieg Deckert: 300,000 @ $0.30 from January, 2000 Private Placement.
369,612 @ $0.30 from July, 1999 Private Placement.
Doug Wolters: 37,500 @ $0.30 from January, 2000 Private Placement.
5,000 @ $0.30 from July, 1999 Private Placement.
Abe Reimer: 250,000 @ $0.30 from July, 1999 Private Placement.
Gil Tritten: 10,000 @ $0.30 from July, 1999 Private Placement.
Oscar Amyotte: 2,500 @ $0.30 from July, 1999 Private Placement.
*The July, 1999 Private Placement Warrants expire on July 29, 2001.
*The January, 2000 Private Placement Warrants expire on March 13, 2001.
*Figures do not include Warrants from the current Private Placement being
conducted at $0.25 / share with warrants attached at $0.30 / share. This Private
Placement has not closed as of November 23, 2000.
SCHEDULE H
EMPIRE CAPITALIZATION TABLE
Empire Energy Corporation
Warrants, Option Awards and Balances Total Shares Issued and Outstanding (Thru 11/27/00): 13,712,062 NOTE: Empire owns 750,000
of these shares.
Activity ending October 31, 2000 Float = 1,498,629 shares
- ------------------- Later or Post split
Year 1999 activity Option Market Immediate Annual Other
- ------------------- Shares Price Price Vesting Vesting Vesting Shares Price Extended
- -----------------------------------------------------------------------------------------------------------------------------------
24-Mar-99
Norman Peterson Director President 25,000 $1.50 Not trading 5,000 5,000 15,000 62,500 $0.60 $37,500
John Dixon Director 25,000 $1.50 Not trading 5,000 5,000 15,000 62,500 $0.60 $37,500
John Hersma Director 25,000 $1.50 Not trading 5,000 5,000 15,000 62,500 $0.60 $37,500
Elliot Kaplan Director 25,000 $1.50 Not trading 5,000 5,000 15,000 62,500 $0.60 $37,500
John Garrison Director Secretary 25,000 $1.50 Not trading 5,000 5,000 15,000 62,500 $0.60 $37,500
Owen Enterprises LLC Consultant 240,000 $1.50 Not trading 240,000 600,000 $0.60 $360,000
11-May-99
Bryan Ferguson Employee VP 60,000 $2.50 Not trading 20,000 20,000 20,000 150,000 $1.00 $150,000
11-Aug-99
John Garrison Director 30,000 $2.50 $2.50 10,000 10,000 10,000 75,000 $1.00 $75,000
Allen Reeves Attorney 50,000 $2.50 $2.50 50,000 125,000 $1.00 $125,000
Karen Taylor Employee of
contractor 20,000 $2.50 $2.50 10,000 5,000 5,000 50,000 $1.00 $50,000
Phil Snowden Contractor 59,800 $2.50 $2.50 9,800 25,000 Concession 149,500 $1.00 $149,500
25,000 Revenue
Clark Burns Contractor 60,400 $2.50 $2.50 10,400 25,000 Concession 151,000 $1.00 $151,000
25,000 Revenue
Ted Abele Contractor 7,600 $2.50 $2.50 7,600 19,000 $1.00 $19,000
John Dixon Director Contractor 10,000 $2.50 $2.50 10,000 25,000 $1.00 $25,000
Robert Kane Contractor 1,600 $2.50 $2.50 1,600 4,000 $1.00 $4,000
Options Exercised
John Dixon -12,500 $0.60 ($7,500)
Total options awarded 664,400 394,400 60,000 210,000 1,648,500 $1,288,500
split
adjustment 2.5 1,661,000 986,000 150,000 525,000
- -------------------
Year 2000 activity
- -----------------------------------------------------------------------------------------------------------------------------------
Options Exercised
Owen Enterprises LLC -150,000 $0.60 ($90,000)
Bryan Ferguson -10,000 $1.00 ($10,000)
Options Awarded
Bryan Ferguson 100,000 $2.50 $2.50 50,000 50,000 100,000 $2.50 $250,000
Total options
outstanding 1,761,000 1,036,000 150,000 575,000 1,588,500 $1,438,500
- -----------------------------------------------------------------------------------------------------------------------------------
Warrants # Issued Exercise Expiration Comments
- ----------- Price Date
Torreon Holdings, Inc. 11,000,000 $3.00 June, 2001 The warrants are non-cancelable but callable at .001 cents
per warrant if not exercised within 60 days after Empire
stock trades at 185% of the exercise price on a public
market for 30 consecutive calendar days. NOTE: It is
anticipated that these warrants will not be exercised by
Torreon as they do not have the capital necessary to
transact, as such, it is fully expected that they will
expire without effect.
APPENDIX B
Grant Thornton LLP
Chartered Accountants
Management Consultants
Canadian Member Firm of
Grant Thornton International
Commonwealth Energy Corp.
Consolidated
Financial Statements
(Expressed in Canadian Dollars)
September 30, 2000
(Unaudited - Prepared by Management)
December 31, 1998 and 1998
Contents
Page
----
Auditors' Report F-1
Consolidated Balance Sheets F-2
Consolidated Statements of Operations and Deficit F-3
Consolidated Statements of Cash Flows F-4
Notes to the Consolidated Financial Statements F-5 - F-14
Grant Thornton LLP
Chartered Accountants
Management Consultants
Canadian Member Firm of
Grant Thornton International
Auditors' Report
To the Directors of
Commonwealth Energy Corp.
We have audited the consolidated balance sheets of Commonwealth Energy Corp. as
at December 31, 1999 and 1998 and the consolidated statements of operations and
deficit and cash flows for the years then ended. These financial statements are
the responsibility of the company's management. Our responsibility is to express
an opinion on these financial statements based on our audit.
We conducted our audits in accordance with auditing standards generally accepted
in the United States. Those standards require that we plan and perform an audit
to obtain reasonable assurance whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant estimates
made by management, as well as evaluating the overall financial statement
presentation.
In our opinion, these consolidated financial statements present fairly, in all
material respects, the financial position of the company as at December 31, 1999
and 1998 and the results of its operations and its cash flows for the years then
ended in accordance with accounting principles generally accepted in Canada.
The consolidated financial statements as at and for the nine months ended
September 30, 1999 and 2000 have been prepared by management and have not been
audited.
Vancouver, Canada
April 14, 2000 Chartered Accountants
P.O. Box 11177, Royal Centre
Suite 2800
1055 West Georgia Street
Vancouver, British Columbia
V6E 4N3
Tel: (604) 687-2711
Fax: (604) 685-6569
F-1
- --------------------------------------------------------------------------------
Commonwealth Energy Corp.
Consolidated Balance Sheets
(expressed in Canadian Dollars)
- --------------------------------------------------------------------------------
September 30 December 31 December 31
2000 1999 1998
----------- ----------- -----------
(Unaudited -
Prepared by
Management)
Assets
Current
Cash and cash equivalents $ 89,395 $ 54,147 $ 33,686
Short term investments 67,658 14,433 --
Receivables
Receivable from related parties 8,967 7,967 32,810
Other 68,997 51,828 32,352
Prepaids 3,713 2,427 91,932
----------- ----------- -----------
238,730 130,802 190,780
Property and equipment (Note 4) 3,516,500 3,164,855 3,261,393
Unevaluated properties (Note 5) 2,101,809 1,506,056 1,224,987
Reorganization costs -- -- 17,363
----------- ----------- -----------
$ 5,857,039 $ 4,801,713 $ 4,694,523
----------- ----------- -----------
Liabilities
Current
Payables $ 431,001 $ 322,785 $ 235,869
Advances from directors (Note 6) 186,995 168,653 171,615
----------- ----------- -----------
617,996 491,438 407,484
----------- ----------- -----------
Shareholders' Equity
Capital stock (Note 7) 6,994,764 5,723,950 5,063,684
Capital stock subscribed -- -- 44,516
Share subscriptions receivable (5,501) (5,501) --
Deficit (1,750,220) (1,408,174) (821,161)
----------- ----------- -----------
5,239,043 4,310,275 4,287,039
----------- ----------- -----------
$ 5,857,039 $ 4,801,713 $ 4,694,523
----------- ----------- -----------
Commitments (Note 10)
See accompanying notes to the consolidated financial statements.
F-2
- ------------------------------------------------------------------------------------------------------
Commonwealth Energy Corp.
Consolidated Statements of Operations and Deficit
(expressed in Canadian Dollars)
- ------------------------------------------------------------------------------------------------------
Nine Months Nine Months Year Year
Ended Ended Ended Ended
September 30 September 30 December 31 December 31
2000 1999 1999 1998
------------ ------------ ------------ ------------
(Unaudited - (Unaudited -
Prepared by Prepared by
Management) Management)
Revenue
Petroleum and natural gas sales $ 228,933 $ 80,075 $ 146,148 $ 41,973
------------ ------------ ------------ ------------
Expenses
Amortization of reorganization costs -- 13,022 17,363 17,363
Depletion and depreciation (Note 4) 74,424 65,254 219,925 123,087
Gain (loss) on foreign exchange 16,907 (12,433) (22,207) (10,906)
Interest- advances from directors 16,500 -- 27,184 22,717
- other 9,159 15,847 25,654 1,932
General and administrative 341,798 273,122 312,199 363,930
Operating 112,191 90,739 153,043 15,388
------------ ------------ ------------ ------------
570,979 445,551 733,161 533,511
------------ ------------ ------------ ------------
Net loss $ (342,046) $ (365,476) (587,013) $ (491,538)
------------ ------------ ------------ ------------
Loss per share $ (0.02) $ (0.02) $ (0.04) $ (0.03)
------------ ------------ ------------ ------------
Weighted average common shares
outstanding 20,655,038 15,604,417 16,137,348 14,290,180
------------ ------------ ------------ ------------
Deficit, beginning of period $ (1,408,174) $ (821,161) $ (821,161) $ (329,623)
Net loss (342,046) (365,476) (587,013) (491,538)
------------ ------------ ------------ ------------
Deficit, end of period $ (1,750,220) $ (1,186,637) $ (1,408,174) $ (821,161)
------------ ------------ ------------ ------------
See accompanying notes to the consolidated financial statements.
F-3
- ----------------------------------------------------------------------------------------------------
Commonwealth Energy Corp.
Consolidated Statement of Cash Flows
(expressed in Canadian Dollars)
- ----------------------------------------------------------------------------------------------------
Nine Months Nine Months Year Year
Ended Ended Ended Ended
September 30 September 30 December 31 December 31
2000 1999 1999 1998
----------- ----------- ----------- -----------
(Unaudited - (Unaudited -
Prepared by Prepared by
Management) Management)
Cash derived from (applied to)
Operating
Net loss $ (342,046) $ (365,476) $ (587,013) $ (491,538)
Depletion and depreciation 74,424 65,254 219,925 123,087
Amortization of reorganization costs -- 13,022 17,363 17,363
Change in non-cash operating
working capital
Receivables (17,169) (47,734) (19,476) 12,379
Prepaids (1,286) 67,621 (655) (1,772)
Payables 108,215 272,506 (24,834) 172,138
----------- ----------- ----------- -----------
(177,862) 5,193 (394,690) (168,343)
----------- ----------- ----------- -----------
Financing
Issue of capital stock, net of issue
costs 995,814 318,499 474,499 766,711
Capital stock subscribed -- -- -- 44,516
Advances from (repayments to)
directors and related parties 17,342 (5,120) 21,881 85,869
----------- ----------- ----------- -----------
1,013,156 313,379 496,380 897,096
----------- ----------- ----------- -----------
Investing
Property and equipment (746,822) (111,209) (156,956) (833,430)
Prepaids and deferred charges -- -- 90,160 90,159
Short term investments (53,225) (29,348) (14,433) --
----------- ----------- ----------- -----------
(800,047) (140,557) (81,229) (743,271)
----------- ----------- ----------- -----------
Net increase (decrease) in cash 35,248 178,015 20,461 (14,518)
Cash and cash equivalents
Beginning of period 54,147 33,686 33,686 48,204
----------- ----------- ----------- -----------
End of period $ 89,395 $ 211,701 $ 54,147 $ 33,686
----------- ----------- ----------- -----------
Supplementary cash flow information
- -----------------------------------
Interest paid $ 9,159 $ 15,847 $ 25,654 $ 1,932
Non-cash investing and financing
transactions not included in cash
flows
Capital assets acquired through
the assumption of trade payables $ -- $ -- $ 135,000 $ --
Capital stock issued for settlement
of payables $ -- $ -- $ 23,250 $ --
Capital stock issued to acquire
resource property $ -- $ -- $ 112,500 $ --
Capital stock issued for share
subscriptions $ -- $ -- $ 39,015 $ --
Capital stock issued to acquire
638260 Alberta Inc. $ 275,000 $ -- $ -- $ --
See accompanying notes to the consolidated financial statements.
F-4
- --------------------------------------------------------------------------------
Commonwealth Energy Corp.
Notes to the Consolidated Financial Statements
(expressed in Canadian Dollars)
September 30, 2000 and 1999 (Unaudited - Prepared by Management)
December 31, 1999 and 1998
- --------------------------------------------------------------------------------
1. Nature of operations
The company is primarily engaged in the acquisition and exploration of petroleum
and natural gas properties in the United States.
2. Interim financial statements (unaudited - prepared by management)
In the company's opinion the unaudited financial statements prepared by
management as at and for the nine months ended September 30, 2000 and 1999
contain all adjustments (consisting of only normal recurring accruals) necessary
to present fairly the financial position of the company at September 30, 2000
and the results of its operations and changes in cash flows for the nine months
ended September 30, 2000 and 1999. The results of operations for the nine months
ended September 30, 2000 and 1999 are not necessarily indicative of the results
to be expected for the full year.
3. Summary of significant accounting policies
Principles of consolidation
The consolidated financial statements include the accounts of the company and
its wholly-owned subsidiaries, Blue Mountain Resources Inc. and Commonwealth
Energy (U.S.A.) Inc.
General policies
These consolidated financial statements are presented in Canadian dollars and
are prepared in accordance with accounting principles generally accepted in
Canada. The accounting principles used conform in all material respects to
accounting principles generally accepted in the United States except as
disclosed in Note 12.
Use of estimates
In preparing the financial statements, management is required to make estimates
and assumptions that affect the reported amounts of assets and liabilities, the
disclosure of contingent assets and liabilities at the date of the financial
statements and reported amounts of revenue and expenses during the period.
Actual results could differ from these estimates.
Joint operations
Substantially all petroleum and natural gas activities are conducted jointly
with others. These financial statements reflect only the company's proportionate
interest in such activities.
Short term investments
Short term investments consist of interest bearing certificates of deposits
carried at cost.
F-5
- --------------------------------------------------------------------------------
Commonwealth Energy Corp.
Notes to the Consolidated Financial Statements
(expressed in Canadian Dollars)
September 30, 2000 and 1999 (Unaudited - Prepared by Management)
December 31, 1999 and 1998
- --------------------------------------------------------------------------------
3. Summary of significant accounting policies (Continued)
Resource properties and equipment
Capitalized costs
The company uses the full cost method of accounting for oil and gas properties.
Under this method, all costs incident to the acquisition, exploration, and
development of properties (both developed and undeveloped), including costs of
abandoned leaseholds, lease rentals, unproductive wells, and well drilling and
equipment costs, are capitalized. The company expenses all general corporate
overhead and other internal cost not directly identified with acquisition,
exploration and development activities.
Generally, no gains or losses are recognized on the sale or disposition of oil
and gas properties. Income in connection with contractual services performed on
wells in which the company has an economic interest is credited to oil and gas
properties as a component of the full cost pool, except for significant
disposals for which a gain or loss is included in earnings.
Depletion and depreciation
Depletion and depreciation of petroleum and natural gas properties and of well
equipment is provided using the unit-of-production method based upon estimated
proven reserves. The costs of unevaluated properties are excluded from costs
subject to depletion but are evaluated regularly by management to ascertain
whether an impairment has occurred. Exploratory dry holes are transferred to
costs subject to depletion when it is determined that proved reserves are not
economically producable for the lease. Geological and geophysical costs such as
seismic surveys and library data which cannot be associated with the potential
acquisition of specific properties are included in the amortization base as
incurred. For depletion and depreciation purposes, relative volumes of petroleum
and natural gas production and reserves are converted at the energy equivalent
conversion rate to equivalent barrels of crude oil.
Future site restoration costs
Estimated future site restoration costs are provided for using the
unit-of-production method. Costs are estimated by the company based on current
regulations, costs, technology and industry standards. The annual charge is
included in the provision for depletion and amortization. Estimated expected
recoveries exceed estimated costs and no provision has been recorded.
Ceiling test
In applying the full cost method, the company calculates a ceiling test annually
whereby the carrying value of petroleum and natural gas properties is compared
annually to estimated undiscounted future net cash flows from the production of
proven reserves. Net cash flow is estimated using year end prices, less
estimated royalties and operating expenses, estimated future general and
administrative expenses, financing costs and income taxes. Should this
comparison indicate that the carrying value exceeds future net cash flows, the
excess is charged against earnings as additional depletion and depreciation.
For the purposes of these financial statements, a ceiling test was also
calculated at September 30, 2000 and 1999.
F-6
- --------------------------------------------------------------------------------
Commonwealth Energy Corp.
Notes to the Consolidated Financial Statements
(expressed in Canadian Dollars)
September 30, 2000 and 1999 (Unaudited - Prepared by Management)
December 31, 1999 and 1998
- --------------------------------------------------------------------------------
3. Summary of significant accounting policies (Continued)
Reorganization costs
Reorganization costs are being amortized on the straight line method over three
years.
Foreign currency translation
Monetary assets and liabilities of the company's wholly-owned U.S.A.
subsidiaries are translated into Canadian dollars at the year end rate of
exchange, and non-monetary assets and liabilities at the exchange rates in
effect at the time of acquisition or issue. Revenue and expenses are translated
at the average rate of exchange for the year. Exchange gains or losses arising
on translation are included in net income or loss for the period.
Loss per share
Per share data is computed by dividing net loss by the weighted average number
of common shares outstanding during each period. A total of 9,865,370 shares
issued in escrow (see Note 6(c)), which are subject to return to treasury if
specific cash flow targets are not met, are excluded from outstanding shares for
this purpose until release conditions are met. Also, shares issuable upon the
exercise of share purchase warrants and stock options are excluded from the
computation because their effect would be anti-dilutive.
Financial instruments
The company has various financial instruments including cash, short term
investments, receivables, payables and accruals, and advances from directors.
The carrying values of these financial instruments approximate their fair
values.
4. Property and equipment September 30 December 31 December 31
2000 1999 1998
---------- ---------- ----------
(Unaudited -
Prepared by
Management)
Petroleum and natural gas properties $4,180,832 $3,753,934 $3,630,547
Less: accumulated depletion and depreciation 668,416 594,252 376,401
---------- ---------- ----------
3,512,416 3,159,682 3,254,146
---------- ---------- ----------
Office equipment 11,954 11,954 11,954
Less: accumulated depreciation 7,870 6,781 4,707
---------- ---------- ----------
4,084 5,173 7,247
---------- ---------- ----------
$3,516,500 $3,164,855 $3,261,393
---------- ---------- ----------
F-7
- --------------------------------------------------------------------------------
Commonwealth Energy Corp.
Notes to the Consolidated Financial Statements
(expressed in Canadian Dollars)
September 30, 2000 and 1999 (Unaudited - Prepared by Management)
December 31, 1999 and 1998
- --------------------------------------------------------------------------------
4. Property and equipment (Continued)
Depreciation, depletion, and amortization expense of oil and gas properties
amounted to the following per equivalent barrel of production:
December 31, 1998 $ 47.73
December 31, 1999 20.72
September 30, 1999 9.26
September 30, 2000 12.75
5. Unevaluated oil and gas properties
The company owns several unevaluated prospects in the states of Wyoming and
Texas, U.S.A. The intention of the company is to complete evaluation studies on
each of these prospects. Then, exploration plans will be put in place to assess
the validity of each of the prospects with the goal being to bring as many of
them to producing status as possible. Consequently, the associated costs have
been excluded in computing amortization of the full cost pool.
The company will begin to amortize these costs when proved reserves are
established or an impairment is determined. Management believes this
determination will occur in 24 to 36 months.
Costs excluded from amortization consist of the following at December 31, 1998,
1999 and September 30, 2000:
Acquisition Exploration Development
Year Incurred Costs Costs Costs Total
- ------------- ---------- ---------- ---------- ----------
1997 $ 506,728 $ 2,557 $ 341,247 $ 850,532
1998 78,673 -- 295,782 374,455
---------- ---------- ---------- ----------
As at December 31, 1998 585,401 2,557 637,029 1,224,987
1999 17,272 12,533 251,264 281,069
---------- ---------- ---------- ----------
At December 31, 1999 602,673 15,090 888,293 1,506,056
During the nine months ended
September 30, 2000 452,077 6,560 137,116 595,753
---------- ---------- ---------- ----------
At September 30, 2000 $1,054,750 $ 21,650 $1,025,409 $2,101,809
---------- ---------- ---------- ----------
6. Advances from directors
Certain directors of the company have made cash advances for working capital.
These advances are unsecured, bear interest at 18% per annum, and are due on
demand.
F-8
- --------------------------------------------------------------------------------
Commonwealth Energy Corp.
Notes to the Consolidated Financial Statements
(expressed in Canadian Dollars)
September 30, 2000 and 1999 (Unaudited - Prepared by Management)
December 31, 1999 and 1998
- --------------------------------------------------------------------------------
7. Capital stock
Authorized:
The company is authorized to issue an unlimited number of voting common shares
and an unlimited number of preferred shares, issuable in series, as may be
determined by the directors of the company.
Issued:
Common shares:
Number of
Shares Amount
---------- ----------
Balance, December 31, 1997 23,419,709 $4,296,973
Private placement at $0.70 per share 760,459 532,321
Exercise of stock options at $0.50 per share 468,780 234,390
---------- ----------
Balance, December 31, 1998 24,648,948 5,063,684
Issued for settlement of payables at $0.38 per share 61,184 23,250
Exercise of stock options at $0.50 per share 49,031 24,516
Issued to SHA Stephens for the acquisition of property at
$0.30 per share 375,000 112,500
Private placement at $0.20 per share 2,500,000 500,000
---------- ----------
Balance, September 30, 1999 and December 31, 1999 27,634,163 5,723,950
Issued for the acquisition of 638260 Alberta Inc. 1,375,000 275,000
Private placement at $0.20 750,000 150,000
Exercise of stock options at $0.30 543,993 163,198
Exercise of warrants at $0.30 2,275,388 682,616
---------- ----------
Balance, September 30, 2000 32,578,544 $6,994,764
---------- ----------
Preferred shares:
No preferred shares have been issued.
F-9
- --------------------------------------------------------------------------------
Commonwealth Energy Corp.
Notes to the Consolidated Financial Statements
(expressed in Canadian Dollars)
September 30, 2000 and 1999 (Unaudited - Prepared by Management)
December 31, 1999 and 1998
- --------------------------------------------------------------------------------
7. Capital stock (Continued)
(a) Stock options
The company has established a plan for granting stock options to officers,
directors, employees and key consultants under a share option plan approved
by the shareholders on September 25, 1997. At September 30, 2000, options
covering 2,328,504 common shares were outstanding at varying exercise
prices as follows:
Exercise Price Expiry Date Amount
-------------- ----------- -----------
$0.20 November 30, 2004 $ 600,000
$0.30 January 18, 2005 1,527,841
$0.30 December 21, 2003 150,663
$0.45 April 17, 2005 50,000
-----------
$ 2,328,504
-----------
Changes in the number of options outstanding during each of the two years
ended December 31, 1999 and 1998 and during the nine months ended September
30, 2000 are as follows:
September 30 December 31 December 31
2000 1999 1998
---------- ---------- ----------
(Unaudited -
Prepared by
Management)
Balance, beginning of period 2,572,497 1,671,528 2,140,308
Exercised (543,993) (49,031) (468,780)
Granted 1,672,497 1,200,000 --
Cancelled (1,372,497) (50,000) --
Expired -- (200,000) --
---------- ---------- ----------
Balance, end of period 2,328,504 2,572,497 1,671,528
---------- ---------- ----------
(b) Warrants
At September 30, 2000, warrants covering 974,612 common shares were
outstanding as follows:
Exercise Price Expiry Date Amount
-------------- ----------- ---------
$0.30 July 29, 2001 $ 224,612
$0.30 January 26, 2001 750,000
---------
$ 974,612
---------
F-10
- --------------------------------------------------------------------------------
Commonwealth Energy Corp.
Notes to the Consolidated Financial Statements
(expressed in Canadian Dollars)
September 30, 2000 and 1999 (Unaudited - Prepared by Management)
December 31, 1999 and 1998
- --------------------------------------------------------------------------------
7. Capital stock (Continued)
(b) Warrants (Continued)
Changes in the number of warrants outstanding during each of the two years
ended December 31, 1999 and 1998 and during the nine months ended September
30, 2000 are as follows:
September 30 December 31 December 31
2000 1999 1998
---------- ---------- ----------
(Unaudited -
Prepared by
Management)
Balance, beginning of period 2,500,000 -- --
Exercised (2,275,388) -- --
Issued 750,000 2,500,000 --
Cancelled -- -- --
Expired -- -- --
---------- ---------- ----------
Balance, end of period 974,612 2,500,000 Nil
---------- ---------- ----------
(c) Escrow shares
As at December 31, 1999, a total of 9,865,370 common shares issued on the
acquisition of Blue Mountain and Commonwealth U.S.A. to certain officers
and directors are held in escrow. These common shares may be released from
escrow on approval by the Canadian Venture Exchange, on the basis of one
common share for every $0.50 of cash flow realized by the company from its
oil and gas properties. If not released from escrow by December 18, 2002,
any shares remaining in escrow shall be cancelled, unless otherwise
exempted by the Canadian Venture Exchange.
8. Income taxes
Losses carry forward
The company has not recognized in its financial statements the potential income
tax benefits of losses of $2,100,000 incurred by the company and its
subsidiaries and available to reduce future income for income tax purposes.
These losses, if not utilized, will expire from 2000 to 2019.
9. Related party transactions
During the nine months ended September 30, 2000, the company had the following
transactions with related parties:
(a) Incurred management fees of $Nil ($Nil: September 30, 1999: December
31, 1999: $Nil: December 31, 1998: $9,200) for services provided by
the directors of the company.
F-11
- --------------------------------------------------------------------------------
Commonwealth Energy Corp.
Notes to the Consolidated Financial Statements
(expressed in Canadian Dollars)
September 30, 2000 and 1999 (Unaudited - Prepared by Management)
December 31, 1999 and 1998
- --------------------------------------------------------------------------------
9. Related party transactions (Continued)
(b) Incurred salaries and benefits at September 30, 2000: $72,000
(September 30, 1999: $80,000: December 31, 1999: $109,156: December
31, 1998: $104,606) for services provided by the directors of the
company.
(c) In January, 2000, the company acquired from a director all issued and
outstanding shares of 638260 Alberta Inc., which owns the interest in
certain petroleum and natural gas leases and land in the Vermillion
area of East Central Alberta.
The purchase price for the acquisition of $275,000 was satisfied by
the issuance of 1,375,000 common shares of the company at a price of
$0.20 per share which was an estimate of the fair value of the shares
issued on the date of acquisition.
10. Commitments
During 1999, the company entered into an agreement with respect to investor
relations consulting services for the company. The term of this agreement shall
be for a period of one year, effective January 1, 2000, and can be renewed at
the option of the company for a further six months. The company is required to
pay $5,000 per month for a total of $60,000.
11. Segmented information
Commencing in 2000, the company operates in two geographical segments: Canada
and the United States. The income and expenses for all periods other than for
the nine months ended September 30, 2000 were attributable to one geographical
segment, the United States. For the nine months ended and as at September 30,
2000, income and expenses, and assets were attributable to the following
segments:
Canada U.S.A. Total
---------- ---------- ----------
Revenue $ 96,234 $ 132,699 $ 228,933
Operating expenses 11,949 100,242 112,191
---------- ---------- ----------
$ 84,285 $ 32,457 116,742
---------- ----------
Corporate expenses 458,788
----------
Net loss $ (342,046)
----------
Property and equipment $ 275,000 $5,343,309 $5,618,309
---------- ---------- ----------
F-12
- --------------------------------------------------------------------------------
Commonwealth Energy Corp.
Notes to the Consolidated Financial Statements
(expressed in Canadian Dollars)
September 30, 2000 and 1999 (Unaudited - Prepared by Management)
December 31, 1999 and 1998
- --------------------------------------------------------------------------------
12. Reconciliation between Canadian and United States generally accepted
accounting principles
These consolidated financial statements have been prepared in accordance with
Generally Accepted Accounting Principles (GAAP), in Canada, which differ in some
respects from GAAP in the United States. The material difference between the two
is summarized below:
Under U.S. GAAP, the company would have calculated the gain or loss on foreign
exchange in accordance with FAS 52 under which assets and liabilities are
translated at the foreign exchange rate at the balance sheet date and the
results of operations are translated at the average foreign exchange rate for
the period. Under Canadian GAAP, the company converts the financial position and
results of operations of its U.S. subsidiaries under the temporal method under
which U.S. dollar property and equipment costs are translated to Canadian
dollars at historical exchange rates. Also, under U.S. GAAP, the foreign
exchange gain or loss recorded by the company from translation of foreign
currency balances would have been presented as a component of shareholders
equity instead of being included in net loss.
Also, under U.S. GAAP, SOP 98-5 requires reorganization costs to be expensed as
incurred. Under Canadian GAAP, deferral and amortization of such costs is
permissible.
The effect of the above differences in the carrying value of total assets,
shareholders' equity, loss for the year and on the consolidated statement of
cash flows are as follows:
September 30 September 30 December 31 December 31
2000 1999 1999 1998
----------- ----------- ----------- -----------
(Unaudited - (Unaudited -
Prepared by Prepared by
Management) Management)
Total assets
Canadian basis $ 5,857,039 $ 4,914,932 $ 4,801,713 $ 4,694,523
Add: increase in net book value of the
carrying value of petroleum and
natural gas properties as a result
of the application of FAS 52 655,975 488,878 460,438 347,928
Deduct:expense deferred reorganization
costs in accordance with SOP 98-5 -- -- -- (17,363)
----------- ----------- ----------- -----------
U.S. basis $ 6,513,014 $ 5,403,810 $ 5,262,151 $ 5,025,088
----------- ----------- ----------- -----------
Shareholders' equity
Canadian basis $ 5,239,043 $ 4,240,061 $ 4,310,275 $ 4,287,039
Add: increase in shareholders' equity as a
result of the application of FAS 52 655,975 488,878 460,438 347,928
Deduct:expense deferred reorganization
costs in accordance with SOP 98-5 -- -- -- (17,363)
----------- ----------- ----------- -----------
U.S. basis $ 5,895,018 $ 4,728,939 $ 4,770,713 $ 4,617,604
----------- ----------- ----------- -----------
F-13
- --------------------------------------------------------------------------------
Commonwealth Energy Corp.
Notes to the Consolidated Financial Statements
(expressed in Canadian Dollars)
September 30, 2000 and 1999 (Unaudited - Prepared by Management)
December 31, 1999 and 1998
- --------------------------------------------------------------------------------
12. Reconciliation between Canadian and United States generally accepted
accounting principles (Continued)
September 30 September 30 December 31 December 31
2000 1999 1999 1998
--------- --------- --------- ---------
(Unaudited - (Unaudited -
Prepared by Prepared by
Management) Management)
Loss for the year
Canadian basis $ 342,046 $ 365,476 $ 587,013 $ 491,538
(Decrease) increase in loss as a result of
the application of FAS 52 (16,908) 12,433 22,207 10,906
(Decrease) increase in loss as a result of
the application of SOP 98-5 -- (13,022) (17,363) 17,363
--------- --------- --------- ---------
$ 325,138 $ 364,887 $ 591,857 $ 519,807
--------- --------- --------- ---------
Loss per share
Canadian basis $ (0.02) $ (0.02) $ (0.04) $ (0.03)
--------- --------- --------- ---------
U.S. basis $ (0.02) $ (0.02) $ (0.04) $ (0.04)
--------- --------- --------- ---------
There was no significant effect on depletion and depreciation as a result of the
above differences.
Consolidated statement of cash flows
Canadian basis
Operating $ (177,862) $ 5,193 $ (394,690) $ (168,343)
Financing $ 1,013,156 $ 313,379 $ 496,380 $ 897,096
Investing $ (800,047) $ (140,557) $ (81,229) $ (743,271)
U.S. basis
Operating $ (160,954) $ (7,240) $ (416,897) $ (179,249)
Financing $ 1,013,156 $ 313,379 $ 496,380 $ 897,096
Investing $ (816,955) $ (128,124) $ (59,022) $ (732,365)
F-14
APPENDIX C
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
EMPIRE ENERGY CORPORATION
A STOCK CORPORATION
Empire Energy Corporation (the "Corporation"), a corporation organized and
existing under the Utah Revised Business Corporations Act (the "URBCA") hereby
certifies as follows:
1. That the Corporation was incorporated on November 10, 1983 pursuant to the
URBCA.
2. Pursuant to Section 16-10a-1007 of the URBCA, this Amended and Restated
Certificate of Incorporation restates and integrates and further amends the
provisions of the Certificate of Incorporation of the Corporation.
3. This Amended and Restated Certificate of Incorporation has been adopted in
accordance with Section 16-10a-852 of the URBCA and Section 3 of the
Corporation's By-laws.
4. The text of the Certificate of Incorporation is hereby amended and restated
in its entirety as follows:
Part 1
NAME
The name of the corporation is Empire Energy Corporation (the "Corporation").
Part 2
REGISTERED OFFICE AND REGISTERED AGENT
The address of the Corporation's registered office is 455 East 500 South #205,
Salt Lake City, Utah 84111, and the name of its registered agent at that address
is Branden T. Burningham.
Part 3
PURPOSE
The purpose of this Corporation is to engage in and carry on any lawful business
or trade and exercise all powers granted to a corporation formed under the URBCA
of the State of Utah, including any amendments thereto or successor statute that
may hereinafter be enacted.
Part 4
AUTHORIZED SHARES
The Corporation is authorized to issue two classes of stock to be designated,
respectively, "Class A Common Stock", $0.001 par value and "Class B Redeemable
Voting Common Stock", $0.0001 par value. The total number of shares of Class A
Common Stock that the Corporation is authorized to issue is 50 million shares.
The total number of shares of Class B Redeemable Common Stock that the
Corporation is authorized to issue is 6,000,000 shares.
Part 5
COMMON STOCK
The special rights of Class A Common Stock and the Class B Redeemable Common
Stock or the holders thereof are as follows:
General
5.1 Except as otherwise required by the URBCA or as otherwise provided in this
Amended Certificate of Incorporation, each share of Class A Common Stock and
Class B Redeemable Common Stock shall have identical rights, preferences,
privileges and restrictions, including rights in liquidation. Each provision of
this Part 5 shall be severable and an adverse determination as to any such
provision shall in no way affect the validity of any other provision.
Voting
5.2 The holders of the Class A Common Stock and Class B Redeemable Common Stock
are entitled to one vote for each share held at all meetings of stockholders
(and written actions in lieu of meeting). With respect to all matters upon which
stockholders are entitled to vote or to which stockholders are entitled to give
consent, the holders of the outstanding shares of Class A Common Stock and Class
B Redeemable Common Stock shall have voted together without regard to class.
There shall be no cumulative voting.
Changes in Authorized Number
5.3 The number of authorized shares of Class A Common Stock and Class B
Redeemable Common Stock may be increased or decreased subject to the
Corporation's legal commitments at any time and from time to time to issue them,
-2-
by the affirmative vote of the holders of a majority of the stock of the
Corporation entitled to vote.
Dividends
5.4 No dividends shall be paid on the Class B Redeemable Common Stock.
Liquidation
5.5 The Class B Redeemable Common Stock shall not be entitled to receive any
assets of the Corporation upon the dissolution or liquidation of the Corporation
except their par value.
Mandatory Redemption of Class B Redeemable Common Stock
5.6 Upon the issuance of any shares of Class A Common Stock to a holder of Class
B Redeemable Common Stock in connection with the conversion (a "Conversion
Event") by such holder of any Series A Exchangeable Shares, no par value per
share, of Empire Exchangeco Ltd., a corporation existing under the federal laws
of Canada ("Empire Exchangeco") ("Empire Exchangeco Series A Exchangeable
Shares"), such holder's shares of Class B Redeemable Common Stock shall be
automatically redeemed, out of funds legally available therefore, by the
Corporation for par value. The number of shares of Class B Redeemable Common
Stock redeemed shall be equal to that number of shares of Class A Common Stock
issued to the holder upon the Conversion Event. Upon a Conversion Event, the
Class B Redeemable Common Stock held by the stockholder participating in the
Conversion Event shall only represent the right to receive par value for each
Class B Redeemable Common Stock share from the Corporation and all others rights
of the Class B Redeemable Common Stock shall be automatically extinguished.
Further, upon a Conversion Event, the Corporation shall have no obligation to
issue shares of Class A Common Stock to any holder converting Empire Exchangeco
Series A Exchangeable Shares until the holder surrenders (or constructively
surrenders, as the case may be, if the certificate or certificates for such
shares are being held for such holder by Empire Exchangeco, or if Empire
Exchangeco has not yet issued and delivered such certificate or certificates to
the holder) the certificates, duly endorsed, at the office of the Corporation or
of any transfer agent for the equal number shares of Class B Redeemable Common
Stock for redemption by the Corporation or such holder provides the Corporation
with a lost certificate affidavit, in a form acceptable to the Corporation. Such
redemption shall be deemed to have been made immediately prior to the close of
business on the date of such surrender of the shares of Class B Redeemable
Common Stock to be redeemed. Nothing in this Part 5 shall require the redemption
of a holder's Class B Redeemable Common Stock upon the issuance of Class A
Common Stock to such holder separate from a Conversion Event.
Part 6
TRANSFER OF STOCK PAIRING.
Subject to the restrictions on transfer of stock described in the Corporation's
Bylaws, as amended from time to time, upon surrender to any transfer agent of
the Corporation of a certificate of shares of the Corporation duly endorsed or
-3-
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
Until the limitations on transfer set forth in the Support Agreement (the
"Support Agreement"), dated as of the Effective Date of the Merger transaction
(by and between the Corporation and Commonwealth Energy Corporation), by and
between the Corporation and Empire Exchangeco, which may be amended from time to
time in accordance with the provisions thereof, shall be terminated:
6.1 All shares of Class B Redeemable Common Stock that are paired pursuant to
the Support Agreement with the Empire Exchangeco Series A Exchangeable Shares
shall not be transferable, and shall not be transferred on the stock transfer
books of the Corporation, unless (i) a simultaneous transfer of Empire
Exchangeco Series A Exchangeable Shares is made by the same transferor to the
same transferee for the same number of shares or (ii) arrangements have been
made with Empire Exchangeco for the acquisition by the transferee of a like
number of Empire Exchangeco Series A Exchangeable Shares and such shares are
paired with the Class B Redeemable Common Stock. Any purported transfer of Class
B Redeemable Common Stock in violation of this Section 6 shall be void ab
initio, and the intended transferee shall acquire no rights in such shares of
Class B Redeemable Common Stock.
6.2 Each certificate evidencing ownership of shares of Class B Redeemable Common
Stock of the Corporation that are paired pursuant to the Support Agreement and
issued and not cancelled prior to the effectiveness of the Support Agreement
shall be deemed to evidence a like number of Empire Exchangeco Series A
Exchangeable Shares.
6.3 A legend shall be placed on the face of each certificate evidencing
ownership of shares of Class B Redeemable Common Stock referring to the
restrictions on transfer set forth herein. 6.4 A copy of the Support Agreement
shall be made available to the stockholders upon request, without charge.
Nothing in this Part 6 shall prohibit the redemption of the Class B Redeemable
Common Stock, as provided for by Part 5 hereof, upon the conversion of the
Empire Exchangeco Series A Exchangeable Shares into Class A Common Stock.
Part 7
PERPETUAL EXISTENCE
The Corporation shall have perpetual duration.
-4-
Part 8
DIRECTORS
The business and affairs of the Corporation shall be managed by or under the
direction of the Board of Directors. The number of Directors shall be fixed by,
or in the manner provided in, the Bylaws of the Corporation. Elections of
Directors need not be by written ballot.
Part 9
AMENDMENTS TO BYLAWS
In furtherance, and not in limitation, of the powers conferred by statute, the
Board of Directors is expressly authorized to make, amend, alter, change, add to
or repeal Bylaws of the Corporation, without any action on the part of the
stockholders. The Bylaws may be amended, altered, changed, added to or repealed
by the stockholders. Any specific provision in the Bylaws regarding amendment
thereof shall be controlling.
Part 10
LIMITATION ON LIABILITY OF DIRECTORS
Director of the Corporation shall not be personally liable to the Corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
Director; provided, however, that this Part 10 shall not eliminate or limit the
liability of a Director (a) for any breach of the Director's duty of loyalty to
the Corporation or its stockholders; (b) for acts or omissions not in good faith
or that involve intentional misconduct or a knowing violation of law; (c) for
the unlawful payment of dividends or unlawful stock repurchases under Section
16-10a-631 of the Utah URBCA; or (d) for any transaction from which the Director
derived an improper personal benefit. This article shall not eliminate or limit
the liability of a Director for any act or omission occurring prior to the
effective date of this Part.
If the URBCA is hereafter amended to authorize any further limitation of the
liability of a Director, then the liability of a Director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the Utah
URBCA, as amended.
Any repeal or modification of the foregoing provisions of this Part 10 by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such repeal
or modification.
-5-
Part 11
INDEMNIFICATION OF DIRECTORS
The Corporation shall indemnify, to the fullest extent authorized or permitted
by law as now enacted or hereafter amended, any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that such person is or was a Director or Officer of the
Corporation or by reason of the fact that such person, at the request of the
Corporation, is or was serving any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, as a Director or
Officer.
The Corporation shall, to the fullest extent authorized or permitted by law as
now enacted or hereafter amended, pay the expenses (including attorneys' fees)
incurred by persons identified in the preceding paragraph of this Part 11 in
defending such action, suit or proceeding in advance of the final disposition of
such action, suit or proceeding.
The rights conferred on any person pursuant to this Part 11 shall not be
exclusive of any other rights that such person may have or hereafter acquire
under any statutes, bylaws, agreement, vote of stockholders or disinterested
Directors, or otherwise.
The Board of Directors may authorize the purchase and maintenance of insurance
for the purpose of such indemnification or other rights granted pursuant to this
Part 11, against expense, liability or loss, whether or not the Corporation
would have the power to indemnify such persons against such expense, liability
or loss under the URBCA, as now enacted or hereafter amended.
The indemnification and advancement of expenses provided by, or granted pursuant
to, this Part 11 shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a Director, Officer, employee or
agent and shall inure to the benefit of the heirs, executors and administrators
of such a person.
Part 12
STOCKHOLDER MEETINGS
Meetings of stockholders may be held within or without the State of Utah, as the
Bylaws may provide. The books of the Corporation may be kept (subject to any
provision contained in the statutes) outside of the State of Utah at such place
or places as may be designated from time to time by the Board of Directors or in
the Bylaws of the Corporation. Elections of directors need not be by written
ballot unless a stockholder demands election by written ballot at the meeting
and before voting begins or unless the Bylaws of the Corporation shall so
provide.
-6-
The foregoing amendment and restatement of the Certificate of Incorporation has
been duly approved by the Board of Directors of the Corporation in accordance
with the provisions of Sections 16-10a-820 and 16-10a-824 of the URBCA.
IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated
Certificate of Incorporation to be signed by ________________, its
_______________, and attested by ________________, its Secretary, this __ day of
_____, 2001.
EMPIRE ENERGY CORPORATION
- -------------------------------
By:
Its: Chief Executive Officer
ATTEST:
- -------------------------------
By:
President
APPENDIX D
Dissent Rights Under Utah Revised Business Corporation Act
16-10a-1301. Definitions. For purposes of Part 13:
(1) "Beneficial shareholder" means the person who is a beneficial owner of
shares held in a voting trust or by a nominee as the record shareholder.
(2) "Corporation" means the issuer of the shares held by a dissenter before
the corporate action, or the surviving or acquiring corporation by merger or
share exchange of that issuer.
(3) "Dissenter" means a shareholder who is entitled to dissent from
corporate action under Section 16-10a-1302 and who exercises that right when and
in the manner required by Sections 16-10a-1320 through 16-10a-1328.
(4) "Fair value" with respect to a dissenter's shares, means the value of
the shares immediately before the effectuation of the corporate action to which
the dissenter objects, excluding any appreciation or depreciation in
anticipation of the corporate action.
(5) "Interest" means interest from the effective date of the corporate
action until the date of payment, at the statutory rate set forth in Section
15-1-1, compounded annually.
(6) "Record shareholder" means the person in whose name shares are
registered in the records of a corporation or the beneficial owner of shares
that are registered in the name of a nominee to the extent the beneficial owner
is recognized by the corporation as the shareholder as provided in Section
16-10a-723.
(7) "Shareholder" means the record shareholder or the beneficial
shareholder.
Enacted by Chapter 277, 1992 General Session
16-10a-1303. Dissent by nominees and beneficial owners. (1) A record shareholder
may assert dissenters' rights as to fewer than all the shares registered in his
name only if the shareholder dissents with respect to all shares beneficially
owned by any one person and causes the corporation to receive written notice
which states the dissent and the name and address of each person on whose behalf
dissenters' rights are being asserted. The rights of a partial dissenter under
this subsection are determined as if the shares as to which the shareholder
dissents and the other shares held of record by him were registered in the names
of different shareholders.
(2) A beneficial shareholder may assert dissenters' rights as to shares
held on his behalf only if:
(a) the beneficial shareholder causes the corporation to receive the record
shareholder's written consent to the dissent not later than the time the
beneficial shareholder asserts dissenters' rights; and
(b) the beneficial shareholder dissents with respect to all shares of which
he is the beneficial shareholder.
(3) The corporation may require that, when a record shareholder dissents
with respect to the shares held by any one or more beneficial shareholders, each
beneficial shareholder must certify to the corporation that both he and the
record shareholders of all shares owned beneficially by him have asserted, or
will timely assert, dissenters' rights as to all the shares unlimited on the
ability to exercise dissenters' rights. The certification requirement must be
stated in the dissenters' notice given pursuant to Section 16-10a-1322.
Enacted by Chapter 277, 1992 General Session
16-10a-1320. Notice of dissenters' rights. (1) If a proposed corporate action
creating dissenters' rights under Section 16-10a-1302 is submitted to a vote at
a shareholders' meeting, the meeting notice must be sent to all shareholders of
the corporation as of the applicable record date, whether or not they are
entitled to vote at the meeting. The notice shall state that shareholders are or
may be entitled to assert dissenters' rights under this part. The notice must be
accompanied by a copy of this part and the materials, if any, that under this
chapter are required to be given the shareholders entitled to vote on the
proposed action at the meeting. Failure to give notice as required by this
subsection does not affect any action taken at the shareholders' meeting for
which the notice was to have been given.
(2) If a proposed corporate action creating dissenters' rights under
Section 16-10a-1302 is authorized without a meeting of shareholders pursuant to
Section 16-10a-704, any written or oral solicitation of a shareholder to execute
a written consent to the action contemplated by Section 16-10a-704 must be
accompanied or preceded by a written notice stating that shareholders are or may
be entitled to assert dissenters' rights under this part, by a copy of this
part, and by the materials, if any, that under this chapter would have been
required to be given to shareholders entitled to vote on the proposed action if
the proposed action were submitted to a vote at a shareholders' meeting. Failure
to give written notice as provided by this subsection does not affect any action
taken pursuant to Section 16-10a-704 for which the notice was to have been
given.
Enacted by Chapter 277, 1992 General Session
16-10a-1321. Demand for payment -- Eligibility and notice of intent. (1) If a
proposed corporate action creating dissenters' rights under Section 16-10a-1302
is submitted to a vote at a shareholders' meeting, a shareholder who wishes to
assert dissenters' rights:
(a) must cause the corporation to receive, before the vote is taken,
written notice of his intent to demand payment for shares if the proposed action
is effectuated; and
(b) may not vote any of his shares in favor of the proposed action.
(2) If a proposed corporate action creating dissenters' rights under
Section 16-10a-1302 is authorized without a meeting of shareholders pursuant to
Section 16-10a-704, a shareholder who wishes to assert dissenters' rights may
not execute a writing consenting to the proposed corporate action.
(3) In order to be entitled to payment for shares under this part, unless
otherwise provided in the articles of incorporation, bylaws, or a resolution
adopted by the board of directors, a shareholder must have been a shareholder
with respect to the shares for which payment is demanded as of the date the
proposed corporate action creating dissenters' rights under Section 16-10a-1302
is approved by the shareholders, if shareholder approval is required, or as of
the effective date of the corporate action if the corporate action is authorized
other than by a vote of shareholders.
(4) A shareholder who does not satisfy the requirements of Subsections (1)
through (3) is not entitled to payment for shares under this part.
Enacted by Chapter 277, 1992 General Session
16-10a-1322. Dissenters' notice. (1) If proposed corporate action creating
dissenters' rights under Section 16-10a-1302 is authorized, the corporation
shall give a written dissenters' notice to all shareholders who are entitled to
demand payment for their shares under this part.
(2) The dissenters' notice required by Subsection (1) must be sent no later
than ten days after the effective date of the corporate action creating
dissenters' rights under Section 16-10a-1302, and shall:
(a) state that the corporate action was authorized and the effective date
or proposed effective date of the corporate action;
(b) state an address at which the corporation will receive payment demands
and an address at which certificates for certificated shares must be deposited;
(c) inform holders of uncertificated shares to what extent transfer of the
shares will be restricted after the payment demand is received;
(d) supply a form for demanding payment, which form requests a dissenter to
state an address to which payment is to be made;
(e) set a date by which the corporation must receive the payment demand and
by which certificates for certificated shares must be deposited at the address
indicated in the dissenters' notice, which dates may not be fewer than 30 nor
more than 70 days after the date the dissenters' notice required by Subsection
(1) is given;
(f) state the requirement contemplated by Subsection 16-10a-1303(3), if the
requirement is imposed; and (g) be accompanied by a copy of this part.
Enacted by Chapter 277, 1992 General Session
16-10a-1323. Procedure to demand payment. (1) A shareholder who is given a
dissenters' notice described in Section 16-10a-1322, who meets the requirements
of Section 16-10a-1321, and wishes to assert dissenters' rights must, in
accordance with the terms of the dissenters' notice:
(a) cause the corporation to receive a payment demand, which may be the
payment demand form contemplated in Subsection 16-10a-1322(2)(d), duly
completed, or may be stated in another writing;
(b) deposit certificates for his certificated shares in accordance with the
terms of the dissenters' notice; and
(c) if required by the corporation in the dissenters' notice described in
Section 16-10a-1322, as contemplated by Section 16-10a-1327, certify in writing,
in or with the payment demand, whether or not he or the person on whose behalf
he asserts dissenters' rights acquired beneficial ownership of the shares before
the date of the first announcement to news media or to shareholders of the terms
of the proposed corporate action creating dissenters' rights under Section
16-10a-1302.
(2) A shareholder who demands payment in accordance with Subsection (1)
retains all rights of a shareholder except the right to transfer the shares
until the effective date of the proposed corporate action giving rise to the
exercise of dissenters' rights and has only the right to receive payment for the
shares after the effective date of the corporate action.
(3) A shareholder who does not demand payment and deposit share
certificates as required, by the date or dates set in the dissenters' notice, is
not entitled to payment for shares under this part.
Enacted by Chapter 277, 1992 General Session
APPENDIX E
Empire Energy Corporation
7500 College Boulevard, Suite 1215
Overland Park, Kansas 66210
THIS PROXY IS SOLICITED BY THE BOARD OF DIRECTORS
OF EMPIRE ENERGY CORPORATION
The undersigned having received the Notice of Special Meeting of
Stockholders and Proxy Statement dated March 30, 2001, hereby appoints Norman L.
Peterson or his designee with full power of substitution and revocation to
represent the undersigned and to vote all the shares of the common stock of
Empire Energy Corporation (the "Company") which the undersigned is entitled to
vote at the Special Meeting of the Shareholders of the Company to be held on
April 25, 2001 and any postponement or adjournment thereof.
(1) Vote FOR AGAINST with or without variations, the special resolution, as
outlined in the attached Proxy Statement, regarding the proposed
acquisition of all of the issued and outstanding shares of Commonwealth
Energy Corp. by the Company.
(2) Vote FOR AGAINST with or without variations, the special resolution, as
outlined in the attached Proxy Statement, regarding the amendment and
restatement of the Company's Articles of Incorporation in order to increase
its number of board of director seats from five to seven proposed in order
to effectuate the proposed acquisition.
(3) Vote FOR AGAINST with or without variations, the special resolution, as
outlined in the attached Proxy Statement, regarding the amendment and
restatement of the Company's Articles of Incorporation authorizing the
issuance of 6,000,000 shares of Empire Class B Redeemable Voting Common
Shares in order to effectuate the proposed acquisition.
(4) IN HIS DISCRETION, THE PROXY IS AUTHORIZED TO VOTE UPON SUCH OTHER BUSINESS
AS MAY PROPERLY COME BEFORE THE MEETING.
FOR [ ] AGAINST [ ] ABSTAIN [ ]
This Proxy when properly executed will be voted in the manner directed
herein by the undersigned Shareholder. If no direction is made, this Proxy will
be voted for all of the aforementioned items.
The undersigned hereby revokes any proxies as to said shares heretofore
given by the undersigned, and ratifies and confirms all that said attorneys and
proxies may lawfully do by virtue hereof.
THIS PROXY CONFERS DISCRETIONARY AUTHORITY IN RESPECT TO MATTERS NOT KNOWN
OR DETERMINED AT THE TIME OF THE MAILING OF THE NOTICE OF THE SPECIAL MEETING OF
SHAREHOLDERS TO THE UNDERSIGNED.
The undersigned hereby acknowledges receipt of the Notice of Special
Meeting of Shareholders and Proxy Statement furnished therewith.
Dated:
------------------------------------
- --------------------- ----------------------------------------
Number of Shares Signature(s) of Shareholder(s)
Signature(s) should agree with the
name(s) appearing hereon. Executors,
administrators, trustees, guardians and
attorneys should indicate when signing.
Attorneys should submit powers of
attorney.
- -------------------------
Print Name of Shareholder
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS OF EMPIRE
ENERGY CORPORATION. PLEASE SIGN AND RETURN THIS PROXY TO EMPIRE ENERGY
CORPORATION, 7500 COLLEGE BOULEVARD, SUITE 1215, OVERLAND PARK, KANSAS 66210.
THE GIVING OF A PROXY WILL NOT AFFECT YOUR RIGHT TO VOTE IN PERSON IF YOU ATTEND
THIS MEETING.
APPENDIX F
WILLIAM M. COBB & ASSOCIATES, INC.
Worldwide Petroleum Consultants
(972) 385-0354
12770 Coit Road, Suite 907 Fax: (972) 788-5165
Dallas, Texas 75251 E-Mail: office@wmcobb.com
March 7, 2001
Mr. Lorne Torhjelm Mr. Bryan Ferguson
President President
Commonwealth Energy (USA) Inc. Empire Energy Corporation
#211, 2383 King George Hwy. 7500 College Blvd., Suite 1215
White Rock, BC, Canada Overland Park, Kansas 66210
V4A-5A4
Gentlemen:
We hereby grant Commonwealth Energy (USA) Inc. & Empire Energy Corporation
consent to rely on William M. Cobb & Associates, Inc. as their expert in
reference to the Appraisal Report completed as of April 1, 2000.
This letter provides that we, William M. Cobb & Associates, Inc., consent to the
quotation or summarization of the report completed as of April 1, 2000 to be
used in Empire Energy Corporation's Preliminary Proxy Statement. The report is
an Engineering Report concerning probable reserves in the T-Bar-X Bedsole #1
well located in Leon County, Texas and owned by Commonwealth Energy (USA) Inc.
and several other Working Interest Partners.
Yours truly,
WILLIAM M. COBB & ASSOCIATES, INC.
/s/ Frank J. Marek
----------------------------------
Frank J. Marek, P.E.
Senior Vice President
APPENDIX G
THOS D. HUMPHREY OIL PROPERTIES, INC.
Petroleum Engineering Consultants
P.O. Box 744086
Dallas, Texas
75374-4086
Ph: 214/221-6070 Fax: 214/221-6071
- --------------------------------------------------------------------------------
Commonwealth Energy (USA) Inc.
#211, 2383 King George Hwy.
White Rock, BC, Canada
V4A-5A4
Empire Energy Corporation
7500 College Blvd., Suite 1215
Overland Park, Kansas
66210
Attention: U.S. Securities Commission
Bryan Ferguson
Empire Energy Corporation, President
Lorne Torhjelm
Commonwealth Energy Corp., President
March 7, 2001
To Whom It May Concern:
We hereby grant Commonwealth Energy (USA) Inc. & Empire Energy Corporation
consent to rely on Thos D. Humphrey Oil Properties, Inc. as their expert in
reference to the Engineering Report completed as of January 1, 1999.
This letter provides that we, Thos D. Humphrey Oil Properties, Inc. consent to
the quotation or summarization of the report completed as of January 1, 1999 to
be used in Empire Energy Corporation's Preliminary Proxy Statement. The report
is an Engineering Report concerning certain producing gas wells in Parker
County, Texas owned by Sha Stephens, Inc. Interests and Commonwealth Energy
(USA) Inc.
Yours truly,
/s/ George Todd
- ---------------
George Todd
Thos D. Humphrey Oil Properties, Inc.