exv10w1



 





Exhibit 10.1




ESCROW AGREEMENT




     This Escrow Agreement (this “Agreement”) is dated as of the                      th day of
June, 2006, among Gran Tierra Energy, Inc. (the “Company”) and McGuireWoods LLP (the “Escrow
Agent”).



Recitals:




     Whereas, the Company is offering to sell up to 50,000,000 units (“Units”) of its
securities for an aggregate offering price of $75,000,000 (the “Offering”). Each Unit consists of
one share of the Company’s common stock, par value $0.001 per share (“Common Stock”) and a warrant
to purchase one half share of the Company’s Common Stock for five years at an exercise price of
$1.75 per whole share;



     Whereas, on June 20, 2006, the Company conducted an initial closing of the Offering
selling 43,336,051 Units of its securities and deriving gross proceeds of $65,004,076;



     Whereas, the closing of the Offering is expected to occur on or about June 30, 2006
(the “Closing Date”);



     Whereas, the investors in the Offering (the “Investors”), in connection with their
intent to purchase Units in the Offering, shall execute and deliver Subscription Agreements (the
“Subscription Agreements”), Securities Purchase Agreements (the “Securities Purchase Agreements”)
and Purchaser Questionnaires (the “Purchaser Questionnaires”) memorializing the Investors’
agreement to purchase and the Company’s agreement to sell the number of Units set forth therein
(the “Investor’s Units”) and Registration Rights Agreements (the “Registration Rights Agreements”)
pursuant to which the Company will provide certain registration rights related to the shares of
Common Stock underlying the Units and the Investor Warrants on the terms set forth therein (the
Subscription Agreements, Securities Purchase Agreements, Purchaser Questionnaires and Registration
Rights Agreements are collectively referred to as the “Transaction Documents”);



     Whereas, Canaccord Capital Corporation (“Canaccord”) is acting as finder in
connection with the Offering and will be introducing certain investors to the Company (the
“Canaccord Investors”) who will making investments (“Canaccord Investment Proceeds”) through the
purchase of Units from the Company;



     Whereas, the parties hereto desire to provide for the safekeeping of the Transaction
Documents and the Escrowed Funds (as defined in Section 2.1 herein) delivered by Canaccord
Investors until such time as such Transaction Documents and Escrowed Funds are released by the
Escrow Agent in accordance with the terms and conditions of this Agreement; and



     Whereas, the Escrow Agent is willing to serve as escrow agent pursuant to the terms
and conditions of this Agreement.



     Now Therefore, the parties agree as follows:



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ARTICLE I




INTERPRETATION




     1.1 Entire Agreement. This Agreement and the Transaction Documents constitute the entire
agreement between the parties hereto pertaining to the subject matter contained herein and
supersede all prior agreements, understandings, negotiations and discussions, whether oral or
written, of the parties. There are no warranties, representations or other agreements made by the
parties in connection with the subject matter hereof except as specifically set forth in this
Agreement or as set forth in the Transaction Documents.



     1.2 Extended Meanings. In this Agreement words importing the singular number include the
plural and vice versa; words importing the masculine gender include the feminine and neuter
genders. The word “person” includes an individual, body corporate, partnership, or other entity in
whatever form, a trustee or trust or unincorporated association, an executor, administrator or
legal representative.



     1.3 Waivers and Amendments. This Agreement may be amended, modified, superseded, cancelled,
renewed or extended, and the terms and conditions hereof may be waived, only by a written
instrument signed by all parties, or, in the case of a waiver, by the party waiving compliance.
Except as expressly stated herein, no delay on the part of any party in exercising any right, power
or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any
party of any right, power or privilege hereunder preclude any other or future exercise of any other
right, power or privilege hereunder.



     1.4 Headings. The division of this Agreement into articles, sections, subsections and
paragraphs and the insertion of headings are for convenience of reference only and shall not affect
the construction or interpretation of this Agreement.



     1.5 Law Governing this Agreement. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to principles of conflicts of
laws. Any action brought by either party against the other concerning the transactions contemplated
by this Agreement may be brought in the state courts of New York or in the federal courts located
in the state of New York. The parties and the individuals executing this Agreement and other
agreements referred to herein or delivered in connection herewith agree to submit to the
jurisdiction of such courts. The prevailing party shall be entitled to recover from the other party
its reasonable attorney’s fees and costs. In the event that any provision of this Agreement or any
other agreement delivered in connection herewith is invalid or unenforceable under any applicable
statute or rule of law, then such provision shall be deemed inoperative to the extent that it may
conflict therewith and shall be deemed modified to conform with such statute or rule of law. Any
such provision which may prove invalid or unenforceable under any law shall not affect the validity
or enforceability of any other provision of any agreement.



     1.6 Specific Enforcement, Consent to Jurisdiction. The Company acknowledges and agrees that
irreparable damage would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise



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breached. It is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent or cure breaches of the provisions of this Agreement and to enforce
specifically the terms and provisions hereof or thereof, this being in addition to any other remedy
to which any of them may be entitled by law or equity. Nothing in this Section shall affect or
limit any right to serve process in any other manner permitted by law.




ARTICLE II




DELIVERIES TO THE ESCROW AGENT




     2.1 Subscriber Deliveries. On or before the Closing Date, Canaccord shall have delivered to
the Escrow Agent the purchase price for the Canaccord Investor’s Units less any deduction of fees
and expenses agreed to between the Company and Canaccord (the aggregate funds for all Canaccord
Investors being referred to as the “Escrowed Funds”) by wire transfer of immediately available
funds pursuant to the wire transfer instructions provided below and the completed and executed
Transaction Documents to the address provided below. Canaccord shall have also provided to the
Escrow Agent a reconciliation letter outlining a breakdown of the portion of the Escrowed Funds
received from investors from the province of Alberta, Canada (the “Alberta Escrowed Funds”) and
funds received from investors outside the province of Alberta, Canada (the “Non-Alberta Escrowed
Funds”).


Escrow Agent—Wire Transfer Instructions:



BANK OF AMERICA — Jacksonville, FL

ABA: 026009593 (Domestic Wires)

Swift Code: BOFAUS3N (International Wires)

Credit: McGuireWoods LLP IOLTA Account

Account Number: 2101206537

Reference: Louis Zehil—Gran Tierra Escrow—20461 12-0005



McGuireWoods Accounting Contact: Julie Aaron (804) 775-1224

Bank Contact: Patrick Comia (888) 841-8159, Opt. 2, Ext. 2160



Escrow Agent—Mailing Address and Facsimile Number:



McGuireWoods LLP

50 North Laura Street

Suite 3300

Jacksonville, Florida 32202

Facsimile Number: (904) 798-3260

Attention: Nova D. Harb

Telephone Number: (904) 798-2639




     2.2 Company Delivery of Canaccord Notice. The Company shall deliver to the Escrow Agent,
before providing the Instructions as described in Section 3.1, written notice, acknowledged by
Canaccord (the “Canaccord Notice”), setting forth:



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          (a) a representation that the original warrants to be issued to the Canaccord Investors in
connection with the offering have been delivered to Canaccord pursuant to Canaccord’s delivery
instructions;




          (b) a representation that certificates representing the shares of Common Stock purchased by
the Canaccord Investors have been delivered to Canaccord pursuant to Canaccord’s delivery
instructions;




          (c) a representation that an original warrant to be issued in connection with Canaccord’s
compensation is delivered to Canaccord pursuant to Canaccord’s delivery instructions:




          (d) a representation that Canaccord has provided written confirmation to the Company that the
original warrants and the certificates representing the shares of Common Stock have been received
by Canaccord;




          (e) a representation that subscriptions in the amount of the Canaccord Investment Proceeds
have been accepted by the Company;




          (f) the amount of Common Stock to be issued to Canaccord Investors;




          (g) a list of the Canaccord Investors whose subscriptions were not accepted by the Company, if
any;




          (h) the amount due Canaccord for Canaccord’s commissions and fees;




          (i) the amount of fees to be paid to Canaccord’s counsel; and




          (j) the time, place and method of delivery of all funds to be delivered to the Company,
Canaccord, and Canaccord’s counsel, and to the Canaccord Investors whose subscriptions were
rejected, if any.




     2.3 Intention to Create Escrow over Transaction Documents and Escrowed Funds. The Company
intends that the Transaction Documents and the Escrowed Funds shall be held in escrow by the Escrow
Agent pursuant to this Agreement for its benefit and for the benefit of the Investors. The Escrow
Agent shall provide copies of the Transaction Documents to the Company promptly after their receipt
in order for the Company to determine whether to accept the subscriptions for the Investor’s Units
evidenced thereby.



     2.4 Escrow Agent to Deliver Transaction Documents and Escrowed Funds. The Escrow Agent shall
hold and release the Transaction Documents and the Escrowed Funds only in accordance with the terms
and conditions of this Agreement.



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ARTICLE III




RELEASE OF TRANSACTION DOCUMENTS AND ESCROWED FUNDS




     3.1 Release of Escrow. Subject to the provisions of Sections 4.l(d) and 4.2, the Escrow Agent
shall release the Transaction Documents and Escrowed Funds as follows:



          (a) First Release of Non-Alberta Escrowed Funds and Transaction Documents upon Closing. In
addition to the Canaccord Notice, the Company shall deliver to Escrow Agent written instructions
(the “Instructions”) duly executed by its principal executive officer acknowledging that as of the
Closing Date the conditions to releasing the Non-Alberta Escrowed Funds have been fully satisfied
and specifying the time, place and method of delivery of the Non-Alberta Escrowed Funds, and the
Transaction Documents. The Escrow Agent shall, at the time and place and by the method specified in
the Instructions, deliver the Non-Alberta Escrowed Funds and the Transaction Documents (the “First
Release”).




          (b) Until such time as the Company delivers to Canaccord the Evidence of the Removal of Resale
Restrictions, as described in Section 3.2(d), the Alberta Escrowed Funds will be held in escrow,
and will not be released to the Company. Upon receipt of the Evidence of the Removal of Resale
Restrictions, the Company will provide the Escrow Agent with a notice, acknowledged by Canaccord,
that the Evidence of the Removal of Resale Restrictions has been delivered to and accepted by
Canaccord. If the Company fails to provide Canaccord with Evidence of the Removal of Resale
Restrictions within 60 days of the First Release, or such other date as Canaccord may agree, the
Company will, upon the request of Canaccord, require the Escrow Agent to forthwith return the
Alberta Escrowed Funds to Canaccord upon delivery by Canaccord to the Escrow Agent of the share and
warrant certificates originally issued to Alberta Investors (as described in section 3.2(d).




          (c) Return of Escrowed Funds and Transaction Documents on Rejection of Subscription. In the
event the Company determines it necessary or appropriate to reject the subscription of any
Canaccord Investor for whom the Escrow Agent has received Escrowed Funds and Transaction Documents,
the Company shall deliver written notice of such event to the Escrow Agent which notice shall
include the time, place and method of delivery for the return to such Investor of the Purchase
Price and Transaction Documents delivered by such Investor and the Escrow Agent shall deliver such
funds and documents pursuant to such written notice.




          (d) Delivery Pursuant to Court Order. Notwithstanding an provision contained herein, upon
receipt by the Escrow Agent of a final and non-appealable judgment, order, decree or award of a
court of competent jurisdiction (a “Court Order”), the Escrow Agent shall deliver the Transaction
Documents and the Escrowed Funds in accordance with the Court Order. Any Court Order shall be
accompanied by an opinion of counsel for the party presenting the Court Order to the Escrow Agent
(which opinion shall be satisfactory to the Escrow Agent) to the effect that the court issuing the
Court Order has competent jurisdiction and that the Court Order is final and non-appealable.




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     3.2 Acknowledgement of Company.



          (a) The Company acknowledges that the only terms and conditions upon which the Transaction
Documents and Escrowed Funds are to be released are set forth in Sections 2.2, 3.1, 4.1(d) and 4.2
of this Agreement.




          (b) The Company reaffirms its agreement to abide by the terms and conditions of this Agreement
with respect to the release of the Transaction Documents and the Escrowed Funds.




          (c) The Company acknowledges that any dispute with respect to the release of the Transaction
Documents or Escrowed Funds shall be resolved pursuant to Section 4.2.




          (d) The Company further acknowledges that with respect to any Canaccord Investment Proceeds
received from residents of the Province of Alberta, Canada (the “Alberta Investors”), the Company
will provide Canaccord, within 60 days of the First Release, with such evidence, satisfactory to
Canaccord and its legal counsel, that the securities issued to the Alberta Investors will not be
subject to resale restrictions under the securities laws of the Province of Alberta (“Evidence of
the Removal of Resale Restrictions”).




          (e) The Company shall notify Canaccord, as soon as reasonably practicable, and in any event,
prior to the release of any of the Canaccord Investment Proceeds, when the subscription funds of
the Canaccord Investors have been received by the Escrow Agent. Such notice to Canaccord shall be
deemed made upon e-mail to robert_anderson@canaccord.com and to glenda_chin@canaccord.com by the
Company or the Company’s agent.




ARTICLE IV




CONCERNING THE ESCROW AGENT




     4.1 Duties and Responsibilities of the Escrow Agent. The Escrow Agent’s duties and
responsibilities shall be subject to the following terms and conditions:



          (a) The Company acknowledges and agrees that the Escrow Agent (i) shall not be responsible for
or bound by, and shall not be required to inquire into whether the Company is entitled to receipt
of the Transaction Documents or Escrowed Funds pursuant to, any other agreement or otherwise; (ii)
shall be obligated only for the performance of such duties as are specifically assumed by the
Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or
refraining from acting upon any written notice, instruction, instrument, statement, request or
document furnished to it hereunder and believed by the Escrow Agent in good faith to be genuine and
to have been signed or presented by the proper person or party, without being required to determine
the authenticity or correctness of any fact stated therein or the propriety or validity or the
service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be
authorized to give notice or make any statement or execute any document in connection with the
provisions hereof is so authorized; (v) shall not be under any duty to give the property held by
Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property,
but in no event less than a reasonable amount of care; and (vi) may consult counsel satisfactory to
Escrow Agent, the




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opinion of such counsel to be full and complete authorization and protection in respect of any
action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with
the opinion of such counsel.




          (b) The Company acknowledges that the Escrow Agent is acting solely as a stakeholder at their
request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good
faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon
Escrow Agent by this Agreement. The Company agrees to indemnify and hold harmless the Escrow Agent
and any of Escrow Agent’s partners, employees, agents and representatives for any action taken or
omitted to be taken by Escrow Agent or any of them hereunder, including the fees of outside counsel
and other costs and expenses of defending itself against any claim or liability under this
Agreement, except in the case of gross negligence, willful misconduct or material breach of this
Agreement on Escrow Agent’s part committed in its capacity as Escrow Agent under this Agreement.
The Escrow Agent shall owe a duty only to the Company under this Agreement and to no other person.




          (c) The Company agrees to reimburse the Escrow Agent for outside counsel fees, to the extent
authorized hereunder and incurred in connection with the performance of its duties and
responsibilities hereunder.




          (d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days
prior written notice of resignation to the Company. Prior to the effective date of the resignation
as specified in such notice, the Company will issue to the Escrow Agent an Instruction authorizing
delivery of the Transaction Documents and the Escrowed Funds to a substitute Escrow Agent selected
by the Company. If no successor Escrow Agent is named by the Company, the Escrow Agent may apply to
a court of competent jurisdiction in the State of New York for appointment of a successor Escrow
Agent, and to deposit the Transaction Documents and Escrowed Funds with the clerk of any such
court.




          (e) The Escrow Agent does not have and will not have any interest in the Transaction Documents
or the Escrowed Funds, but is serving only as escrow agent, having only possession thereof.




          (f) This Agreement sets forth exclusively the duties of the Escrow Agent with respect to any
and all matters pertinent thereto, and no implied duties or obligations shall be read into this
Agreement.




          (g) The provisions of this Section 4.1 shall survive the resignation of the Escrow Agent or
the termination of this Agreement.




     4.2 Dispute Resolution: Judgments. Resolution of disputes arising under this Agreement shall
be subject to the following terms and conditions:



          (a) If any dispute shall arise with respect to the delivery, ownership, right of possession or
disposition of the Transaction Documents or the Escrowed Funds, or if the Escrow Agent shall in
good faith be uncertain as to its duties or rights hereunder, the Escrow Agent shall be authorized,
without liability to anyone, to (i) refrain from taking any action other than to continue to hold
the Transaction Documents or the Escrowed Funds pending receipt of an




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Instruction from the Company, or (ii) deposit the Transaction Documents and Escrowed Funds
with any court of competent jurisdiction in the State of New York, in which event the Escrow Agent
shall give written notice thereof to the Company and shall thereupon be relieved and discharged
from all further obligations pursuant to this Agreement. The Escrow Agent may, but shall be under
no duty to, institute or defend any legal proceedings which relate to the Transaction Documents or
the Escrowed Funds. The Escrow Agent shall have the right to retain counsel if it becomes involved
in any disagreement, dispute or litigation on account of this Agreement or otherwise determines
that it is necessary to consult counsel.



(b) The Escrow Agent is hereby expressly authorized to comply with and obey any Court Order.
In case the Escrow Agent obeys or complies with a Court Order, the Escrow Agent shall not be liable
to the Investors, the Company or to any other person, firm, corporation or entity by reason of such
compliance.




ARTICLE V




GENERAL MATTERS




     5.1 Termination. This escrow shall terminate upon the disbursement in accordance with the
provisions herein of the Transaction Documents and the Escrowed Funds in full or at any time upon
the agreement in writing of the Company.



     5.2 Notices. All notices, demands, requests, consents, approvals, and other communications
required or permitted hereunder shall be in writing and, unless otherwise specified herein, shall
be (i) personally served, (ii) deposited in the mail, registered or certified, return receipt
requested, postage prepaid, (iii) delivered by reputable air courier service with charges prepaid,
or (iv) transmitted by hand delivery, telegram, or facsimile, addressed as set forth below or to
such other address as such party shall have specified most recently by written notice. Any notice
or other communication required or permitted to be given hereunder shall be deemed effective (a)
upon hand delivery or delivery by facsimile, with accurate confirmation generated by the
transmitting facsimile machine, at the address or number designated below (if delivered on a
business day during normal business hours where such notice is to be received), or the first
business day following such delivery (if delivered other than on a business day during normal
business hours where such notice is to be received) or (b) on the second business day following the
date of mailing by express courier service, fully prepaid, addressed to such address, or upon
actual receipt of such mailing, whichever shall first occur. The addresses for such communications
shall be:



	 	 	 	 	 
	 

	 	(a)
	 	If to the Company, to:
	 
	 	 	 	 
	 

	 	 	 	Gran Tierra Energy Inc.
	 

	 	 	 	300,611-10th Avenue S.W. Floor.
	 

	 	 	 	610-8th Avenue S.W.
	 

	 	 	 	Calgary, Alberta
	 

	 	 	 	Canada
	 

	 	 	 	Attention: James Hart, Chief Financial Officer
	 

	 	 	 	Facsimile: (403) 265-3242






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	 	(b)
	 	If to the Escrow Agent, to:
	 
	 	 	 	 
	 

	 	 	 	McGuireWoods LLP
	 

	 	 	 	1345 Avenue of the Americas
	 

	 	 	 	Seventh Floor
	 

	 	 	 	New York, New York 10105
	 

	 	 	 	Attention: Louis W. Zehil, Esq.
	 

	 	 	 	Facsimile Number: (212) 548-2175





or to such other address as any of them shall give to the others by notice made pursuant to this
Section 5.2.




     5.3 Interest. The Escrowed Funds shall not be held in an interest bearing account nor will
interest be payable in connection therewith. In the event the Escrowed Funds are deposited in an
interest bearing account, each Investor shall be entitled to receive its pro rata portion of any
accrued interest thereon, but only if the Escrow Agent receives from such Investor the Investor’s
United States taxpayer identification number and other requested information and forms.



     5.4 Assignment; Binding Agreement. Neither this Agreement nor any right or obligation
hereunder shall be assignable by any party without the prior written consent of the other parties
hereto. This Agreement shall inure to the benefit of and be binding upon the parties hereto and
their respective legal representatives, successors and assigns.



     5.5 Invalidity. In the event that any one or more of the provisions contained herein, or the
application thereof in any circumstance, is held invalid, illegal, or unenforceable in any respect
for any reason, the validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be in any way impaired thereby,
it being intended that all of the rights and privileges of the parties hereto shall be enforceable
to the fullest extent permitted by law.



     5.6 Counterparts/Execution. This Agreement may be executed in any number of counterparts and
by different signatories hereto on separate counterparts, each of which, when so executed, shall be
deemed an original, but all such counterparts shall constitute but one and the same instrument.
This Agreement may be executed by facsimile transmission and delivered by facsimile transmission.



     5.7 Agreement. Each of the undersigned states that he has read the foregoing Escrow Agreement
and understands and agrees to it.



[SIGNATURE PAGES FOLLOW]




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           In Witness Whereof, the parties hereto have duly executed this Escrow Agreement as of
the date first above written.



	 	 	 	 	 
	 	 	Gran Tierra Energy, Inc.
	 
	 	 	 	 
	 
	 	 	 	 
	 

	 	By:
	 	/s/ James Hart
	 

	 	 	 	 
	 	 	Name:  James Hart
	 	 	Title:  Chief Financial Officer





[SIGNATURE PAGE FOR ESCROW AGENT FOLLOWS]




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	 	 	ESCROW AGENT
	 
	 	 	 	 
	 	 	McguireWoods LLP 
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Louis W. Zehil
	 

	 	 	 	 
	 	 	Name:  Louis W. Zehil
	 	 	Title:  Partner






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