kodiaksb2ex4-5.htm


    
      

      

    

    Exhibit
      4.5

     

    THE
      SECURITIES REPRESENTED BY THIS CERTIFICATE WILL BE VOID AND OF
      NO VALUE UNLESS EXERCISED BY 5:00 P.M. (CALGARY TIME) ON MARCH 28,
      2009.  UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF
      THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE JANUARY 29,
      2008.

     

    AS
      APPLICABLE, WITHOUT PRIOR WRITTEN APPROVAL OF THE TSX VENTURE EXCHANGE AND
      COMPLIANCE WITH ALL APPLICABLE SECURITIES LEGISLATION, THE SECURITIES
      REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED
      OR
      OTHERWISE TRADED ON OR THROUGH THE FACILITIES OF THE TSX VENTURE EXCHANGE OR
      OTHERWISE IN CANADA OR TO OR FOR THE BENEFIT OF A CANADIAN RESIDENT UNTIL
      JANUARY 29, 2008.

     

    THESE
      SECURITIES WERE ISSUED IN AN OFFSHORE TRANSACTION TO PERSONS WHO ARE NOT U.S.
      PERSONS PURSUANT TO REGULATION S UNDER THE UNITED STATES SECURITIES ACT OF
      1933,
      AS AMENDED (THE “1933 ACT”).  ACCORDINGLY, NONE OF THE SECURITIES TO
      WHICH THIS CERTIFICATE RELATES HAVE BEEN REGISTERED UNDER THE 1933 ACT, OR
      ANY
      U.S. STATE SECURITIES LAWS, AND, UNLESS SO REGISTERED, NONE MAY BE OFFERED
      OR
      SOLD IN THE UNITED STATES OR, DIRECTLY OR INDIRECTLY, TO U.S. PERSONS EXCEPT
      PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR PURSUANT TO AN EXEMPTION
      FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
      THE
      1933 ACT AND IN EACH CASE ONLY IN ACCORDANCE WITH APPLICABLE STATE SECURITIES
      LAWS.  IN ADDITION, HEDGING TRANSACTIONS INVOLVING THE SECURITIES MAY
      NOT BE CONDUCTED UNLESS IN ACCORDANCE WITH THE 1933
      ACT.

     

    KODIAK
      ENERGY, INC.

     

    AGENT’S
      WARRANT TO PURCHASE COMMON SHARES

     

    THIS
      IS
      TO CERTIFY that for value received, Research Capital Corporation (the
“Agent’’) is entitled to purchase, subject to adjustment, up to
      149,334 common shares of KODIAK ENERGY, INC. pursuant to this Agent’s Warrant
      (as defined below) on the following terms and conditions:

     

    
      	
              1.

            	
              INTERPRETATION

            


    

     

    
      	
              1.1

            	
              Definitions

            


    

     

    In
      these
      terms and conditions:

     

    
      	
               

            	
              (a)

            	
              “Affiliate”
                has the meaning assigned in the Securities Act
                (Alberta);

            


    

     

    
      	
               

            	
              (b)

            	
              “Agent’s
                Warrant” mean this warrant to purchase Common Shares as
                authorized under subsection 2.1 and outstanding from time to
                time;

            


    

     

    
      	
               

            	
              (c)

            	
              “Associate”
                has the meaning assigned in the Securities Act
                (Alberta);

            


    

     

    
      	
               

            	
              (d)

            	
              “Common
                Share” or “Common Shares” means common shares in
                the capital of the Corporation as constituted at the date of the
                Agent’s
                Warrant and any shares substituted for such shares or resulting from
                any
                subdivision or consolidation of such
                shares;

            


    

     

    


    
      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

    

    -
      2
      -

    
 

    
      	
               

            	
              (e)

            	
              “Corporation”
                means KODIAK ENERGY, INC. or a successor corporation bound under
                this
                agreement pursuant to section 6;

            


    

     

    
      	
               

            	
              (f)

            	
              “Director”
                means a director of the Corporation for the time being, and reference,
                without more, to action by the directors means action by the directors
                of
                the Corporation as a board, or whenever duly empowered, action by
                a
                committee of the board; and

            


    

     

    
      	
               

            	
              (g)

            	
              “person”
                means an individual, corporation, partnership, trustee or any
                unincorporated organization.

            


    

     

    Words
      importing the singular number include the plural and vice versa and words
      importing the masculine gender include the feminine and neuter
      genders.

     

    
      	
              1.2

            	
              Interpretation
                Not Affected by Headings

            


    

     

    The
      division of these terms and conditions into sections, subsections, paragraphs
      and subparagraphs and the insertion of headings are for convenience of reference
      only and do not affect the construction or interpretation of these terms and
      conditions.

     

    
      	
              1.3

            	
              Applicable
                Law

            


    

     

    The
      Agent’s Warrant will be governed by the laws of the Province of Alberta and the
      laws of Canada applicable therein.

     

    
      	
              1.4

            	
              Currency

            


    

     

    A
      reference to currency in this Agent’s Warrant certificate means United States
      dollars, unless otherwise indicated.

     

    
      	
              2.

            	
              WARRANT
                TO PURCHASE

            


    

     

    
      	
              2.1

            	
              Agent’s
                Warrant and Terms

            


    

    

      This
        Agent’s Warrant entitles the Agent to acquire 149,334 previously unissued Common
        Shares in the capital of the Corporation at an exercise price of US$3.00
        per
        Common Share from the date hereof until 5:00 p.m. (Calgary Time) on
        March 28, 2009, subject to adjustment as provided below (the
“Exercise Price”).

       

    

    
      	
              2.2

            	
              Additional
                Common Shares

            


    

     

    The
      Agent’s Warrant will not restrict the Corporation from issuing further Common
      Shares in its capital or rights to purchase Common Shares while the Agent’s
      Warrant is outstanding.

     

    
      	
              2.3

            	
              Issue
                in Substitution for Lost
                Certificates

            


    

     

    If
      an
      Agent’s Warrant certificate is mutilated, lost, destroyed or
      stolen:

     

    
      	
               

            	
              (a)

            	
              the
                Corporation will issue and deliver a new Agent’s Warrant certificate in
                substitution for the one mutilated, lost, destroyed or stolen, and
                the
                substituted Agent’s Warrant certificate will entitle the Agent to the same
                rights and benefits as the mutilated, lost, destroyed or stolen Agent’s
                Warrant certificate;

            


    

     

    


    
      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

    

    -
      3
      -

    
 

    
      	
               

            	
              (b)

            	
              the
                Corporation will be entitled to require the Agent to
                provide:

            


    

     

    
      	
               

            	
              (i)

            	
              proof
                of loss, destruction or mutilation of the Agent’s Warrant
                certificate;

            


    

     

    
      	
               

            	
              (ii)

            	
              an
                indemnity in the amount and form acceptable to the Corporation;
                and

            


    

     

    
      	
               

            	
              (iii)

            	
              payment
                of the reasonable costs of the Corporation to replace the Agent’s Warrant
                certificate.

            


    

     

    
      	
              2.4

            	
              Not
                a Shareholder

            


    

     

    The
      Agent’s Warrant does not entitle the Agent to any rights as a shareholder of the
      Corporation.

     

    
      	
              3.

            	
              TRANSFER
                AND NOTICE

            


    

     

    
      	
              3.1

            	
              No
                Transfer of Agent’s
                Warrant

            


    

     

    The
      Agent’s Warrant evidenced hereby is non-assignable, non-transferrable and
      non-negotiable and may not be exercised by or for the benefit of any person
      other than the Agent.

     

    
      	
              3.2

            	
              Notice

            


    

     

    Any
      notice by the Corporation to the Agent or the Agent to the Corporation may
      be
      delivered, mailed or sent by facsimile.  Notices delivered are deemed
      to be received on actual delivery.  Notices mailed are deemed to be
      received on the fifth business day after mailing and notices sent by facsimile
      are deemed to be received at the time of transmission.

     

    
      	
              4.

            	
              EXERCISE
                OF AGENT’S WARRANT

            


    

     

    
      	
              4.1

            	
              Method
                of Exercise of Agent’s
                Warrant

            


    

     

    The
      right
      to purchase Common Shares conferred by the Agent’s Warrant may be exercised by
      the Agent by surrendering this certificate, with a duly completed and executed
      subscription in the form attached together with cash, certified cheque or bank
      draft payable to the Corporation in an amount equal to the applicable Exercise
      Price multiplied by the number of Common Shares subscribed for to the
      Corporation at its office located at Calgary, Alberta.

     

    
      	
              4.2

            	
              Effective
                Date of Issue

            


    

     

    Any
      Common Shares issued on the exercise of the Agent’s Warrant will be issued
      effective on the date the Agent’s Warrant certificate is surrendered and payment
      is made as provided for in subsection 4.1 hereof.

     

    
      	
              4.3

            	
              Right
                of Shareholder

            


    

     

    As
      promptly as possible and in any event within five business days after receipt
      of
      the notice and payment in full of the Exercise Price for the total number of
      Common Shares to be purchased, the Corporation shall cause the Agent, or such
      person as may be designated by the Agent (where pertaining to registration
      only
      and if in compliance with applicable securities laws) to be recorded in its
      register of shareholders as holder of the number of fully paid, non-assessable
      Common Shares so purchased (the date upon which the Agent is so recorded as
      registered holder being referred to in this subparagraph 4.3 as the
“Registry Date”).  The Agent shall have full rights
      as a shareholder of the Corporation with respect to Common Shares acquired
      pursuant to the Agent’s Warrant on or after the Registry Date, and no adjustment
      shall be made for dividends or other rights for which the record date is prior
      to the Registry Date.  The Corporation agrees to issue share
      certificates in respect of all Common Shares so purchased as soon as possible
      after the Registry Date, and in any event within five business days
      thereafter.

     

    


    
      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

    

    -
      4
      -

    
 

    
      	
              4.4

            	
              Subscription
                for Less than Entitlement

            


    

     

    The
      Agent
      may subscribe for and purchase a number of Common Shares less than the number
      to
      which he is entitled to purchase pursuant to the surrendered Agent’s Warrant
      certificate and the Corporation will deliver to the Agent a new Agent’s Warrant
      certificate representing the right to purchase the balance of the Common Shares
      which the Agent was entitled to purchase pursuant to the surrendered Agent’s
      Warrant certificate at the same price and on the same terms and conditions
      as
      the surrendered Agent’s Warrant certificate.

     

    
      	
              4.5

            	
              Fractions
                of Common Shares

            


    

     

    The
      Agent’s Warrant will not entitle the Agent to purchase a fraction of a Common
      Share.

     

    
      	
              4.6

            	
              Expiry
                of Agent’s Warrant

            


    

     

    After
      5:00 p.m. (Calgary Time), on March 28, 2009, all rights hereunder will
      wholly cease and terminate and the Agent’s Warrant will be void and of no
      effect.

     

    
      	
              4.7

            	
              Adjustment
                of Number and Price

            


    

     

    If
      and
      whenever during the term as set out in subparagraph 2.1:

     

    
      	
               

            	
              (a)

            	
              the
                outstanding Common Shares are subdivided or are consolidated into
                a
                greater or lesser number of Common Shares,
                respectively;

            


    

     

    
      	
               

            	
              (b)

            	
              the
                Common Shares are reclassified, exchanged for or converted into other
                shares, securities or property;

            


    

     

    
      	
               

            	
              (c)

            	
              a
                stock dividend has been declared and paid on the Common
                Shares;

            


    

     

    
      	
               

            	
              (d)

            	
              there
                has been an amalgamation, merger, consolidation or other reorganization
                affecting the Corporation (resulting in an exchange of all of the
                outstanding Common Shares for shares of another corporation);
                or

            


    

     

    
      	
               

            	
              (e)

            	
              there
                has been a transfer of all or substantially all of the assets of
                the
                Corporation to another Corporation or
                entity,

            


    

     

    (any
      of
      such events being referred to in this subparagraph 4.7 as a
“Change”), then the Agent, in exercising its Agent’s Warrant,
      whether in whole or in part, after the effective date of the Change shall be
      entitled to receive and shall accept and the Corporation shall deliver upon
      such
      exercise in accordance with this Agreement, in lieu of the number of Common
      Shares deliverable prior to the effective date of this Change, the aggregate
      number and kinds of Common Shares or other securities or amount of property
      which the Agent would have been entitled to as a result of the Change if, on
      the
      effective date thereof, it had been the registered holder of the number of
      Common Shares it would have received had it exercised the Agent’s Warrant or
      relevant portion hereof immediately before the effective date of the
      Change.  The adjustments provided for in this subparagraph 4.7 shall
      be cumulative.  The necessary adjustments shall be made in the
      application of the provisions of this Agreement with respect to the rights
      and
      options of the Agent after any Change to the end that the provisions hereof
      shall thereafter correspondingly apply, as nearly as may reasonably be, in
      relation to any Common Shares or other securities or property to which the
      Agent
      is entitled on the exercise of the Agent’s Warrant granted
      hereunder.  The Corporation shall, as soon as practicable after
      becoming aware of any Change, notify the Agent thereof and set forth in a
      supplement to this Agreement approved by the board of directors of the
      Corporation the adjustment resulting from such Change.  In the event
      that the Agent shall disagree with an adjustment, the Corporation’s auditors at
      the sole expense of the Corporation shall determine the adjustment
      conclusively.

     

    


    
      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

    

    -
      5
      -

    
 

    
      	
              4.8

            	
              United
                States

            


    

     

    The
      Agent’s Warrant may not be exercised within the United States by or on behalf of
      any U.S. person or person in the United States, nor will certificates
      representing Common Shares be delivered in the United States unless the Common
      Shares issuable upon exercise of the Agent’s Warrant are registered under the
U.S. Securities Act of 1933, as amended, and the securities laws of all
      applicable states of the United States or an exemption from such registration
      requirement is available.  If the Agent exercises the Agent’s Warrant
      it shall provide to the Corporation either: (i) written certification that
      it is not a U.S. person and that such options are not being exercised within
      the
      United States or on behalf of, or for the account of, a U.S. person or a person
      in the United States; or (ii) a written opinion of counsel or other
      evidence satisfactory to the Corporation to the effect that the Common Shares
      have been registered under the U.S. Securities Act of 1933, as amended,
      and applicable state securities laws or are exempt from registration
      thereunder.

     

    
      	
              4.9

            	
              Legends

            


    

     

    Any
      Common Shares issued pursuant to the exercise of the Agent’s Warrant prior to
      January 29, 2008, will bear the following legends:

     

    “Unless
      permitted under securities legislation, the holder of this security must not
      trade the securities before January 29, 2008,”

     

    and

     

    “These
      securities were issued in an offshore transaction to persons who are not U.S.
      persons pursuant to Regulation S under the United States Securities Act of
      1933, as amended (the “1933 Act”).  Accordingly, none of the
      securities to which this certificate relates have been registered under the
      1933
      Act, or any U.S. State Securities Laws, and, unless so registered, none may
      be
      offered or sold in the United States or, directly or indirectly, to U.S. persons
      except pursuant to an effective registration statement or pursuant to an
      exemption from, or in a transaction not subject to, the registration
      requirements of the 1933 Act and in each case only in accordance with applicable
      state securities laws.  In addition, hedging transactions involving
      the securities may not be conducted unless in accordance with the 1933
      Act.”

     

    and
      if
      applicable:

     

    “Without
      prior written approval of the TSX Venture Exchange and compliance with all
      applicable securities legislation, the securities represented by this
      certificate may not be sold, transferred, hypothecated or otherwise traded
      on or
      through the facilities of the TSX Venture Exchange or otherwise in Canada or
      to
      or for the benefit of a Canadian resident until January 29,
      2008.”

     

    


    
      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

    

    -
      6
      -

    
 

    
      	
              5.

            	
              COVENANTS
                BY THE CORPORATION

            


    

     

    
      	
              5.1

            	
              General
                Covenants

            


    

     

    The
      Corporation hereby represents and covenants that:

     

    
      	
               

            	
              (a)

            	
              all
                Common Shares that may be issued upon the exercise of the Agent’s Warrant
                (assuming, in each case, receipt by the Corporation of the applicable
                Exercise Price therefore), upon issuance, be validly issued and fully
                paid
                and non-assessable shares and, in each case free from any and all
                taxes,
                liens and charges relating to the issuance thereof;
                and

            


    

     

    
      	
               

            	
              (b)

            	
              at
                all times during the term as set out in subparagraph 2.1, the Corporation
                shall have authorized and reserved for issuance a sufficient number
                of
                Common Shares to provide for the exercise of the Agent’s rights
                hereunder.

            


    

     

    
      	
              5.2

            	
              Notice
                of Record Date

            


    

     

    Subject
      to any requirement for a longer notice period pursuant to applicable law, at
      least 21 calendar days prior to the effective date or record date, as the case
      may be, of any event referred to in subsection 4.7, whether or not the event
      requires or might require an adjustment in the rights hereto, the Corporation
      shall give notice to the Agent of the particulars of such event and, if
      determinable, any adjustment, provided that in case any adjustment for which
      a
      notice has been given is not then determinable, the Corporation shall promptly
      after such adjustment is determinable give notice to the Agent of the
      adjustment.

     

    The
      Corporation covenants with the Agent that it will not close its transfer books
      or take any other corporate action which might deprive the Agent of the
      opportunity to exercise its rights of acquisition pursuant thereto during the
      period of 21 calendar days after the giving of the notices.

     

    
      	
              6.

            	
              MODIFICATION
                OF TERMS, MERGER,
                SUCCESSORS

            


    

     

    
      	
              6.1

            	
              Corporation
                May Merge on Certain Terms

            


    

     

    The
      Agent’s Warrant will not prevent the Corporation from amalgamating or otherwise
      merging with another corporation or corporations, if the resulting entity is
      bound or agrees to be bound by the terms of the Agent’s Warrant.

     

    
      	
              6.2

            	
              Successor
                Corporation Substituted

            


    

     

    If
      the
      Corporation is amalgamated or otherwise merged with or into any other
      corporation or corporations, the successor corporation formed by such
      consolidation or amalgamation, or into which the Corporation is merged will
      be
      substituted for the Corporation hereunder.  Such changes in
      phraseology and form (but not in substance) may be made in the Agent’s Warrant
      as may be appropriate in view of such consolidation, amalgamation, merger or
      transfer.

     

    


    
      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

    

    -
      7
      -

    
 

    
      	
              7.

            	
              EXECUTION

            


    

     

    This
      certificate shall not be valid for any purpose whatever unless and until it
      has
      been executed by a duly authorized signatory of the Corporation.

     

    IN
      WITNESS WHEREOF, KODIAK ENERGY, INC. has caused this Agent’s Warrant certificate
      to be signed by its officers duly authorized as of September 28,
      2007.

     

     

    
      	 	
              KODIAK
                ENERGY, INC. 

            
	 	 
	 	
              Per:

            	
            
	 	 	
              Authorized
                Signatory

            


    

    


     

    


     

    


     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    


     

    


     

    


    
      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

    

    


    SUBSCRIPTION
      FORM

     

    TO:      KODIAK
      ENERGY, INC.

     

    The
      undersigned holder of this Agent’s Warrant hereby subscribes for _______________
      previously unissued common shares (“Common Shares”) in the
      capital of KODIAK ENERGY, INC. (the “Corporation”) pursuant to
      this Agent’s Warrant at US$3.00 per Common Share in accordance with the terms
      and conditions specified in this Agent’s Warrant certificate.  This
      subscription is accompanied by a certified cheque or money order payable to
      the
      Corporation in the amount of $______________, being the whole amount of the
      purchase price of the said Common Shares.

     

    The
      undersigned represents and warrants to the Corporation that it is not exercising
      this Agent’s Warrant in the United States or on behalf of, or for the account
      of, a U.S. person or a person in the United States.

     

    Please
      register the Common Shares in the name and address appearing on the face of
      this
      Agent’s Warrant certificate or as follows:

     

    
      	
              Name

            	 	
              Address

            	 	
              Number
                of

              Common
                Shares

            
	
               

               

            	 	 	 	 
	
               

               

            	 	 	 	 
	
               

               

            	 	 	 	 
	
               

               

            	 	 	 	 
	 	 	
               

              TOTAL: 
                

            	 	 


    

     

    (Please
      print full name in which share certificates are to be issued.)

     

    Dated
      this ______ day of ________________, 200____.

     

    In
      the
      presence of:

     

     

    
      	 	
              RESEARCH
                CAPITAL CORPORATION 

            
	 	 
	 	
              Per:

            	 
	 	 	
              Authorized
                Signatory

            
	 	 	
               

               

            
	 	 	
              Name

            
	 	 	
               

               

            
	 	 	
              Title

            


    

    


     

     

     

     

    
 

    
      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

    

    


    Instructions

     

    
      	
              1.

            	
              The
                Agent may exercise its right to subscribe for Common Shares by completing
                this form and surrendering this form and the certificate representing
                the
                Agent’s Warrant being exercised to the Corporation at its principal
                office, together with cash, a certified cheque, bank draft or money
                order
                payable to or to the order of the Corporation in an amount equal
                to the
                applicable Exercise Price (as defined in the Agent’s Warrant certificate)
                multiplied by the number of Common Shares subscribed
                for.  Certificates for Common Shares will be delivered or mailed
                within five business days after the exercise of the Agent’s
                Warrant.

            


    

     

    
      	
              2.

            	
              If
                the Subscription Form indicates that Common Shares are to be issued
                to a
                person or persons other than the Agent, the signature of such holder
                on
                the Subscription Form must be guaranteed by a Schedule “I” major chartered
                bank/trust company, or a member of an acceptable Medallion Guarantee
                Program.  The guarantor must affix a stamp bearing the words:
                “Signature Guaranteed”.

            


    

     

    Please
      note that signature guarantees are not accepted from treasury branches or credit
      unions unless they are members of the stamp medallion program.

     

    
      	
              3.

            	
              If
                the Subscription Form is signed by a trustee, executor, administrator,
                curator, guardian, attorney, officer of a corporation or any person
                acting
                in a fiduciary or representative capacity, such form and the Agent’s
                Warrant certificate must be accompanied by evidence of authority
                to sign
                satisfactory to the Corporation.