-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, CzFsS5uYu1aTmoLL0ZRrefT7Rw3TwUEWMhugOzNReQdxdb1vhfffxALQquuQQtvO +/kSjOd1+OvdXdOu6yAKow== 0001165527-10-000028.txt : 20100114 0001165527-10-000028.hdr.sgml : 20100114 20100113185829 ACCESSION NUMBER: 0001165527-10-000028 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 20091221 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Unregistered Sales of Equity Securities ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20100114 DATE AS OF CHANGE: 20100113 FILER: COMPANY DATA: COMPANY CONFORMED NAME: American Eagle Energy Inc. CENTRAL INDEX KEY: 0001401983 STANDARD INDUSTRIAL CLASSIFICATION: MISCELLANEOUS METAL ORES [1090] IRS NUMBER: 208642477 STATE OF INCORPORATION: NV FISCAL YEAR END: 0430 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 333-143626 FILM NUMBER: 10526190 BUSINESS ADDRESS: STREET 1: 10B TIME CENTRE STREET 2: 53-55 HOLLYWOOD ROAD CITY: CENTRAL STATE: K3 ZIP: 00000 BUSINESS PHONE: 852 2521 5455 MAIL ADDRESS: STREET 1: 10B TIME CENTRE STREET 2: 53-55 HOLLYWOOD ROAD CITY: CENTRAL STATE: K3 ZIP: 00000 FORMER COMPANY: FORMER CONFORMED NAME: Yellow Hill Energy Inc. DATE OF NAME CHANGE: 20070605 8-K 1 g3786.txt CURRENT REPORT DATED 12-21-09 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934 Date of Report (Date of earliest event reported) December 21, 2009 American Eagle Energy Inc. (Exact name of registrant as specified in its charter) Nevada 333-143626 208642477 (State or other jurisdiction (Commission (IRS Employer of incorporation) File Number) Identification No.) 27 North 27th Street, Suite 21G, Billings, Montana 59101 (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code 406-294-9765 N/A (Former name or former address, if changed since last report.) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions: [ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) [ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) [ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) [ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) ITEM 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT Our company has entered into a Consulting Agreement with Synergy Resources LLC, dated effective the 21st day of December, 2009, whereby the Company has agreed to retain Synergy in regards to the identification and acquisition of prospective oil and gas assets. The Consulting Agreement provides for the issuance of 10,000,000 restricted common shares of our company, of which 4,500,000 shares are to be deposited in escrow and released pursuant to the terms of an escrow agreement entered into concurrently with the Consulting Agreement, based on certain performance based milestones. ITEM 3.02 UNREGISTERED SALES OF EQUITY SECURITIES On January 13, 2010, we issued an aggregate of 10,000,000 restricted shares of our common stock to one U.S. person (at that term as defined in Regulation S of the Securities Act of 1933), relying on Rule 506 of Regulation D and/or Section 4(2) of the Securities Act of 1933 pursuant to the Consulting Agreement referred to herein. ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS 10.1 Consulting Agreement between our company and Synergy Resources LLC, dated effective December 21, 2009. 10.2 Escrow Agreement between our company, Synergy Resources LLC, and WL Macdonald Law Corp., dated effective December 21, 2009. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. AMERICAN EAGLE ENERGY INC. /s/ Richard Findley - -------------------------------- Richard Findley President Date: January 13, 2010 2 EX-10.1 2 ex10-1.txt CONSULTING AGREEMENT Exhibit 10.1 CONSULTING AGREEMENT THIS is dated and effective on the 21st day of December, 2009. BETWEEN: AMERICAN EAGLE ENERGY INC. (the "Company") AND: SYNERGY RESOURCES LLC (the "CONTRACTOR") A. The Company desires to retain the Contractor to locate and assist in the acquisition of oil and gas projects of merit for the Company (the "SERVICES"); B. The Contractor has agreed to provide the Services to the Company on the terms and conditions of this Agreement. NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the mutual covenants and promises set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by each, the parties hereto agree as follows: ARTICLE 1 APPOINTMENT AND AUTHORITY OF CONTRACTOR 1.1 Appointment of Contractor. The Company hereby appoints the Contractor to perform the Services for the benefit of the Company as hereinafter set forth, and the Company hereby authorizes the Contractor to exercise such powers as provided under this Agreement. The Contractor accepts such appointment on the terms and conditions herein set forth. 1.2 Performance of Services. The Services hereunder have been and shall continue to be provided on the basis of the following terms and conditions: (a) the Contractor shall report directly to the Board of Directors of the Company; (b) the Contractor shall faithfully, honestly and diligently serve the Company and cooperate with the Company and utilize maximum professional skill and care to ensure that all services rendered hereunder, including the Services, are to the satisfaction of the Company, acting reasonably, and the Contractor shall provide any other services not specifically mentioned herein, but which by reason of the Contractor's capability the Contractor knows or ought to know to be necessary to ensure that the best interests of the Company are maintained; and (c) the Company shall report the results of the Contractor's duties hereunder as may be requested by the Company from time to time. 2 1.3 Authority of Contractor. The Contractor shall have no right or authority, express or implied, to commit or otherwise obligate the Company in any manner whatsoever except to the extent specifically provided herein or specifically authorized in writing by the Company. 1.4 Independent Contractor. In performing the Services, the Contractor shall be an independent contractor and not an employee or agent of the Company, except that the Contractor shall be the agent of the Company solely in circumstances where the Contractor must be the agent to carry out its obligations as set forth in this Agreement. Nothing in this Agreement shall be deemed to require the Contractor to provide the Services exclusively to the Company and the Contractor hereby acknowledges that the Company is not required and shall not be required to make any remittances and payments required of employers by statute on the Contractor's behalf and the Contractor or any of its agents shall not be entitled to the fringe benefits provided by the Company to its employees. ARTICLE 2 CONTRACTOR'S AGREEMENTS 2.1 Expense Statements. The Contractor may incur expenses in the name of the Company as agreed in advance in writing by the Company, provided that such expenses relate solely to the carrying out of the Services. The Contractor will immediately forward all invoices for expenses incurred on behalf of and in the name of the Company and the Company agrees to pay said invoices directly on a timely basis. The Contractor agrees to obtain approval from the Company in writing for any individual expense of $1,000 or greater or any aggregate expense in excess of $1,000 incurred in any given month by the Contractor in connection with the carrying out of the Services. 2.2 Regulatory Compliance. The Contractor agrees to comply with all applicable securities legislation and regulatory policies in relation to providing the Services, including but not limited to United States securities laws (in particular, Regulation FD) and the policies of the United States Securities and Exchange Commission. 2.3 Prohibition Against Insider Trading. The Contractor hereby acknowledges that the Contractor is aware, and further agrees that the Contractor will advise those of its directors, officers, employees and agents who may have access to Confidential Information, that United States securities laws prohibit any person who has material, non-public information about a company from purchasing or selling securities of such a company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. ARTICLE 3 COMPANY'S AGREEMENTS 3.1 Remuneration. As compensation for the Services to be rendered the Contractor shall receive 10,000,000 restricted shares of common stock (the "Compensation Shares"), issuable as follows: (a) 5,500,000 Compensation Shares issuable immediately for agreeing to enter into this Agreement and provide the Services, of which 5,000,000 Compensation Shares shall have a lock up and be restricted from any trading or transfers for period of two years from the date hereof, unless consented to by the Company, and (b) 4,500,000 Compensation Shares issuable in accordance with the release provision of the escrow agreement attached hereto as Exhibit "A" (the "Escrow Agreement") are achieved. 3 3.2 Lock Up. In regards to the 5,000,000 Compensation Shares issuable immediately and not subject to the Escrow Agreement (the "Locked Up Shares'), Contractor irrevocably agrees with the Company, for a period of two years from the date hereof (such period, the "Restriction Period"), Contractor will not except in accordance with the terms here, offer, sell, contract to sell, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by Contractor or any Affiliate of Contractor or any person in privity with Contractor or any Affiliate of Contractor, directly or indirectly, in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the United States SECURITIES EXCHANGE ACT OF 1934 (each, a "Transfer") with respect to, any of the Locked Up Shares. Beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act. In order to enforce this covenant, the Company shall have the right to impose irrevocable stop-transfer instructions preventing the Company's transfer agent from effecting any actions in violation of this Agreement. 3.3 Notwithstanding the foregoing, Contractor shall be permitted to make the following Transfers of the Locked Shares held by Contractor during the Restriction Period expressly in accordance with the following (collectively, "Permitted Transfers"). For the purposes of this Agreement, "Permitted Transfer" means, with respect to any person, (i) a transfer of the Locked Up Shares to an immediate family member or Affiliate of such person, (ii) if such Person is a limited or general partnership, a transfer of the Locked Up Shares securities convertible or exchangeable into shares Common Stock to its partners in connection with a distribution of securities held by such person to its partners or (iii) a transfer of Locked Up Shares with the prior written consent of the Company in a private transaction exempt from the registration requirements of the Securities Act of 1933, as amended; provided, that each such receiving party to a Permitted Transfer in clauses (i) through (iii), prior to any such transfer, executes and delivers to the Company a letter agreement agreeing to be bound in the same manner as the signatory hereto as to the transferred securities. 3.4 Information. Subject to the terms of this Agreement, including without limitation 0 hereof, and provided that the Contractor agrees that it will not disclose any material non-public information to any person or entity, the Company shall make available to the Contractor such information and data and shall permit the Contractor to have access to such documents as are reasonably necessary to enable it to perform the Services under this Agreement. The Company also agrees that it will act reasonably and promptly in reviewing materials submitted to it from time to time by the Contractor and inform the Contractor of any material inaccuracies or omissions in such materials. 3.5 Voting of Compensation Shares. The Contractor covenants and agrees that, with respect to the Compensation Shares that it receives, it shall, at all times that it is the beneficial owner of such shares, vote such shares on all matters coming before it as a stockholder of the Company in the same manner as the majority of the board of directors of the Company shall recommend. ARTICLE 4 DURATION, TERMINATION AND DEFAULT 4.1 Effective Date. This Agreement shall become effective as of December 21, 2009 (the "EFFECTIVE DATE"), and shall continue until December 31, 2010 or the Contractor or is terminated pursuant to the terms of this Agreement. 4.2 Termination. Without prejudicing any other rights that the Company may have hereunder or at law or in equity, the Company may terminate this Agreement immediately upon delivery of written notice to the Contractor if: (a) the Contractor breaches section 0 of this Agreement; 4 (b) the Contractor breaches any other material term of this Agreement and such breach is not cured to the reasonable satisfaction of the Company within thirty (30) days after written notice describing the breach in reasonable detail is delivered to the Contractor; (c) the Company acting reasonably determines that the Contractor has acted, is acting or is likely to act in a manner detrimental to the Company or has violated or is likely to violate the confidentiality of any information as provided for in this Agreement; (d) the Contractor is unable or unwilling to perform the Services under this Agreement, or (e) the Contractor commits fraud, serious neglect or misconduct in the discharge of the Services. 4.3 Duties Upon Termination. Upon termination of this Agreement for any reason, the Contractor shall upon receipt of all sums due and owing, promptly deliver the following in accordance with the directions of the Company: (a) a final accounting, reflecting the balance of expenses incurred on behalf of the Company as of the date of termination; and (b) all documents pertaining to the Company or this Agreement, including but not limited to, all books of account, correspondence and contracts, provided that the Contractor shall be entitled thereafter to inspect, examine and copy all of the documents which it delivers in accordance with this provision at all reasonable times upon three (3) days' notice to the Company. 4.4 Compensation of Contractor on Termination. Upon termination of this Agreement, the Contractor shall be entitled to receive as its full and sole compensation in discharge of obligations of the Company to the Contractor under this Agreement all sums due and payable under this Agreement to the date of termination and the Contractor shall have no right to receive any further payments; provided, however, that the Company shall have the right to offset against any payment owing to the Contractor under this Agreement any damages, liabilities, costs or expenses suffered by the Company by reason of the fraud, negligence or wilful act of the Contractor, to the extent such right has not been waived by the Company. ARTICLE 5 CONFIDENTIALITY AND NON-COMPETITION 5.1 Maintenance of Confidential Information. The Contractor acknowledges that in the course of its appointment hereunder the Contractor will, either directly or indirectly, have access to and be entrusted with information (whether oral, written or by inspection) relating to the Company or its respective affiliates, associates or customers (the "CONFIDENTIAL INFORMATION"). For the purposes of this Agreement, "Confidential Information" includes, without limitation, any and all Developments (as defined herein), trade secrets, inventions, innovations, techniques, processes, formulas, drawings, designs, products, systems, creations, improvements, documentation, data, specifications, technical reports, customer lists, supplier lists, distributor lists, distribution channels and methods, retailer lists, reseller lists, employee information, financial information, sales or marketing plans, competitive analysis reports and any other thing or information whatsoever, whether copyrightable or uncopyrightable or patentable or unpatentable. The Contractor acknowledges that the Confidential Information constitutes a proprietary right, which the Company is entitled to protect. Accordingly the Contractor covenants and agrees that during the Term and thereafter until such time as all the Confidential Information becomes 5 publicly known and made generally available through no action or inaction of the Contractor, the Contractor will keep in strict confidence the Confidential Information and shall not, without prior written consent of the Company in each instance, disclose, use or otherwise disseminate the Confidential Information, directly or indirectly, to any third party. 5.2 Exceptions. The general prohibition contained in Section 0 against the unauthorized disclosure, use or dissemination of the Confidential Information shall not apply in respect of any Confidential Information that: (a) is available to the public generally in the form disclosed; (b) becomes part of the public domain through no fault of the Contractor; (c) is already in the lawful possession of the Contractor at the time of receipt of the Confidential Information; or (d) is compelled by applicable law to be disclosed, provided that the Contractor gives the Company prompt written notice of such requirement prior to such disclosure and provides assistance in obtaining an order protecting the Confidential Information from public disclosure. 5.3 Developments. Any information, data, work product or any other thing or documentation whatsoever which the Contractor, either by itself or in conjunction with any third party, conceives, makes, develops, acquires or acquires knowledge of during the Contractor's appointment with the Company or which the Contractor, either by itself or in conjunction with any third party, shall conceive, make, develop, acquire or acquire knowledge of (collectively the "DEVELOPMENTS") during the Term or at any time thereafter during which the Contractor is engaged by the Company that is related to the business of the Company shall automatically form part of the Confidential Information and shall become and remain the sole and exclusive property of the Company. Accordingly, the Contractor does hereby irrevocably, exclusively and absolutely assign, transfer and convey to the Company in perpetuity all worldwide right, title and interest in and to any and all Developments and other rights of whatsoever nature and kind in or arising from or pertaining to all such Developments created or produced by the Contractor during the course of performing this Agreement, including, without limitation, the right to effect any registration in the world to protect the foregoing rights. The Company shall have the sole, absolute and unlimited right throughout the world, therefore, to protect the Developments by patent, copyright, industrial design, trademark or otherwise and to make, have made, use, reconstruct, repair, modify, reproduce, publish, distribute and sell the Developments, in whole or in part, or combine the Developments with any other matter, or not use the Developments at all, as the Company sees fit. 5.4 Protection of Developments. The Contractor does hereby agree that, both before and after the termination of this Agreement, the Contractor shall perform such further acts and execute and deliver such further instruments, writings, documents and assurances (including, without limitation, specific assignments and other documentation which may be required anywhere in the world to register evidence of ownership of the rights assigned pursuant hereto) as the Company shall reasonably require in order to give full effect to the true intent and purpose of the assignment made under Section 0 hereof. If the Company is for any reason unable, after reasonable effort, to secure execution by the Contractor on documents needed to effect any registration or to apply for or prosecute any right or protection relating to the Developments, the Contractor hereby designates and appoints the Company and its duly authorized officers and agents as the Contractor's agent and attorney to act for and in the Contractor's behalf and stead to execute and file any such document and do all other lawfully permitted acts necessary or advisable in the opinion of the Company to effect such registration or to apply for or prosecute such right or protection, with the same legal force and effect as if executed by the Contractor. 6 5.5 Remedies. The parties to this Agreement recognize that any violation or threatened violation by the Contractor of any of the provisions contained in this 0 will result in immediate and irreparable damage to the Company and that the Company could not adequately be compensated for such damage by monetary award alone. Accordingly, the Contractor agrees that in the event of any such violation or threatened violation, the Company shall, in addition to any other remedies available to the Company at law or in equity, be entitled as a matter of right to apply to such relief by way of restraining order, temporary or permanent injunction and to such other relief as any court of competent jurisdiction may deem just and proper. 5.6 Reasonable Restrictions. The Contractor agrees that all restrictions in this 0 are reasonable and valid, and all defenses to the strict enforcement thereof by the Company are hereby waived by the Contractor. ARTICLE 6 DEVOTION TO CONTRACT 6.1 Devotion to Contract. During the term of this Agreement, the Contractor shall devote sufficient time, attention, and ability to the business of the Company, and to any associated company, as is reasonably necessary for the proper performance of the Services pursuant to this Agreement. Nothing contained herein shall be deemed to require the Contractor to devote its exclusive time, attention and ability to the business of the Company. During the term of this Agreement, the Contractor shall, and shall cause each of its agents assigned to performance of the Services on behalf of the Contractor, to: (a) at all times perform the Services faithfully, diligently, to the best of its abilities and in the best interests of the Company; (b) devote such of its time, labour and attention to the business of the Company as is necessary for the proper performance of the Services hereunder; and (c) refrain from acting in any manner contrary to the best interests of the Company or contrary to the duties of the Contractor as contemplated herein. 6.2 Other Activities. The Contractor shall not be precluded from acting in a function similar to that contemplated under this Agreement for any other person, firm or company. ARTICLE 7 PRIVATE PLACEMENT OF COMPENSATION SHARES 7.1 Documents Required from Contractor. The Contractor shall complete, sign and return to the Company as soon as possible, on request by the Company, such additional documents, notices and undertakings as may be required by regulatory authorities and applicable law. 7.2 Acknowledgements of Contractor The Contractor acknowledges and agrees that: (a) the Contractor agrees and acknowledges that none of the Compensation Shares have been registered under the Securities Act of 1933 or under any state securities or "blue sky" laws of any state of the United States, and, unless so registered, may not be offered or sold in the United States or, directly or indirectly, to U.S. Persons (as that term is defined in Regulation S under the Securities Act of 1933), except in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the Securities Act of 1933, or pursuant to an exemption from, or in a transaction not subject to, 7 the registration requirements of the Securities Act of 1933 and in each case only in accordance with applicable state securities laws; (b) the Contractor has not acquired the Compensation Shares as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the 1933 Act) in the United States in respect of any of the Securities which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Compensation Shares; provided, however, that the Contractor may sell or otherwise dispose of any of the Compensation Shares pursuant to registration thereof under the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements; (c) the Compensation Shares will be subject to a hold period from the date of issuance of the Compensation Shares unless such Compensation Shares are registered with the Securities and Exchange Commission ("SEC"); (d) the decision to execute this Agreement and purchase the Compensation Shares agreed to be purchased hereunder has not been based upon any oral or written representation as to fact or otherwise made by or on behalf of the Company other than those made by the Company in the information the Company has filed with the SEC; (e) it will indemnify and hold harmless the Company and, where applicable, its directors, officers, employees, agents, advisors and shareholders from and against any and all loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all fees, costs and expenses whatsoever reasonably incurred in investigating, preparing or defending against any claim, lawsuit, administrative proceeding or investigation whether commenced or threatened) arising out of or based upon any representation or warranty of the Contractor contained herein or in any document furnished by the Contractor to the Company in connection herewith being untrue in any material respect or any breach or failure by the Contractor to comply with any covenant or agreement made by the Contractor to the Company in connection therewith; (f) the issuance and sale of the Compensation Shares to the Contractor will not be completed if it would be unlawful; (g) the Compensation Shares are not listed on any stock exchange or subject to quotation and no representation has been made to the Contractor that the Compensation Shares will become listed on any other stock exchange or subject to quotation on any other quotation system; (h) no securities commission or similar regulatory authority has reviewed or passed on the merits of the Compensation Shares; (i) there is no government or other insurance covering the Compensation Shares; (j) there are risks associated with an investment in the Compensation Shares, including the risk that the Contractor could lose all of its investment; (k) the Contractor and the Contractor's advisor(s) have had a reasonable opportunity to ask questions of and receive answers from the Company in connection with the distribution of the Compensation Shares hereunder, and to obtain additional information, to the extent 8 possessed or obtainable without unreasonable effort or expense, necessary to verify the accuracy of the information about the Company; (l) the books and records of the Company were available upon reasonable notice for inspection, subject to certain confidentiality restrictions, by the Contractor during reasonable business hours at its principal place of business, and all documents, records and books in connection with the distribution of the Compensation Shares hereunder have been made available for inspection by the Contractor, the Contractor's lawyer and/or advisor(s); (m) the Company will refuse to register any transfer of the Compensation Shares not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from the registration requirements of the 1933 Act; (n) the statutory and regulatory basis for the exemption claimed for the offer of the Compensation Shares, although in technical compliance with Regulation S, would not be available if the offering is part of a plan or scheme to evade the registration provisions of the 1933 Act; and (o) the Contractor has been advised to consult the Contractor's own legal, tax and other advisors with respect to the merits and risks of an investment in the Compensation Shares and with respect to applicable resale restrictions, and it is solely responsible (and the Company is not in any way responsible) for compliance with: (i) any applicable laws of the jurisdiction in which the Contractor is resident in connection with the distribution of the Compensation Shares hereunder, and (ii) applicable resale restrictions. 7.3 Representations, Warranties and Covenants of the Contractor. The Contractor hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the end of the expiry of the Term or early termination of this Agreement) that: (a) The Contractor is a U.S. Person and is an "accredited investor" as that term is defined in Rule 501 of Regulation D promulgated under the 1933 Act; (b) the Contractor is not acquiring the Compensation Shares for the account or benefit of, directly or indirectly, any U.S. Person; (c) the sale of the Compensation Shares to the Contractor as contemplated in this Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Contractor; (d) the Contractor is acquiring the Compensation Shares for investment only and not with a view to resale or distribution and, in particular, it has no intention to distribute either directly or indirectly any of the Compensation Shares in the United States or to U.S. Persons; (e) the Contractor is executing this Agreement and is acquiring the Compensation Shares as principal for the Contractor's own account, for investment purposes only, and not with a view to, or for, resale, 9 distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Compensation Shares; (f) the entering into of this Agreement and the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Contractor; (g) the entering into of this Agreement and the transactions contemplated thereby will not result in the violation of any of the terms and provisions of any law applicable to the Contractor, or of any agreement, written or oral, to which the Contractor may be a party or by which the Contractor is or may be bound; (h) the Contractor has duly executed and delivered this Agreement and it constitutes a valid and binding agreement of the Contractor enforceable against the Contractor in accordance with its terms; (i) the Contractor has the requisite knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the prospective investment in the Compensation Shares and the Company; (j) the Contractor is not an underwriter of, or dealer in, the common shares of the Company, nor is the Contractor participating, pursuant to a contractual agreement or otherwise, in the distribution of the Compensation Shares; (k) the Contractor is not aware of any advertisement of pertaining to the Company or any of the Compensation Shares; and (l) no person has made to the Contractor any written or oral representations: (i) that any person will resell or repurchase any of the Compensation Shares; (ii) that any person will refund the purchase price of any of the Compensation Shares; (iii)as to the future price or value of any of the Compensation Shares; or (iv) that any of the Compensation Shares will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Compensation Shares of the Company on any stock exchange or automated dealer quotation system, except that currently certain market makers make market in the common shares of the Company on the OTC Bulletin Board. 7.4 Legending of Compensation Shares. The Contractor hereby acknowledges that upon the issuance thereof, and until such time as the same is no longer required under the applicable securities laws and regulations, the certificates representing any of the Compensation Shares will bear a legend in substantially the following form: NONE OF THE SECURITIES REPRESENTED HEREBY HAVE BEEN REGISTERED UNDER THE 1933 ACT, OR ANY U.S. STATE SECURITIES LAWS, AND, UNLESS SO REGISTERED, MAY NOT BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES (AS DEFINED HEREIN) OR TO U.S. PERSONS EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S UNDER THE 1933 ACT, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT, OR PURSUANT TO AN AVAILABLE 10 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 COMPLIANCE WITH THE 1933 ACT. "UNITED STATES" AND "U.S. PERSON" ARE AS DEFINED BY REGULATION S UNDER THE 1933 ACT. 7.5 Restrictions on Transfer. The Contractor hereby acknowledges and agrees to the Company making a notation on its records or giving instructions to the registrar and transfer agent of the Company in order to implement the restrictions on transfer set forth and described in this Agreement. ARTICLE 8 MISCELLANEOUS 8.1 Notices. All notices required or allowed to be given under this Agreement shall be made either personally by delivery to or by facsimile transmission to such address as may be designated from time to time by such party in writing. 8.2 Change of Address. Any party may, from time to time, change its address for service hereunder by written notice to the other party in the manner aforesaid. 8.3 Independent Legal Advice. The Contractor acknowledges that: (a) this Agreement was prepared by W.L. Macdonald Law Corporation for the Company; (b) W.L. Macdonald Law Corporation received instructions from the Company and does not represent the Contractor; (c) the Contractor has been requested to obtain his own independent legal advice on this Agreement prior to signing this Agreement; (d) the Contractor has been given adequate time to obtain independent legal advice; (e) by signing this Agreement, the Contractor confirms that he fully understands this Agreement; and (f) by signing this Agreement without first obtaining independent legal advice, the Contractor waives his right to obtain independent legal advice. 8.4 Entire Agreement. As of from the date hereof, any and all previous agreements, written or oral between the parties hereto or on their behalf relating to the appointment of the Contractor by the Company are null and void. The parties hereto agree that they have expressed herein their entire understanding and agreement concerning the subject matter of this Agreement and it is expressly agreed that no implied covenant, condition, term or reservation or prior representation or warranty shall be read into this Agreement relating to or concerning the subject matter hereof or any matter or operation provided for herein. 8.5 Further Assurances. Each party hereto will promptly and duly execute and deliver to the other party such further documents and assurances and take such further action as such other party may from time to time reasonably request in 11 order to more effectively carry out the intent and purpose of this Agreement and to establish and protect the rights and remedies created or intended to be created hereby. 8.6 Waiver. No provision hereof shall be deemed waived and no breach excused, unless such waiver or consent excusing the breach is made in writing and signed by the party to be charged with such waiver or consent. A waiver by a party of any provision of this Agreement shall not be construed as a waiver of a further breach of the same provision. 8.7 Amendments in Writing. No amendment, modification or rescission of this Agreement shall be effective unless set forth in writing and signed by the parties hereto. 8.8 Assignment. Except as herein expressly provided, the respective rights and obligations of the Contractor and the Company under this Agreement shall not be assignable by either party without the written consent of the other party and shall, subject to the foregoing, enure to the benefit of and be binding upon the Contractor and the Company and their permitted successors or assigns. Nothing herein expressed or implied is intended to confer on any person other than the parties hereto any rights, remedies, obligations or liabilities under or by reason of this Agreement. 8.9 Severability. In the event that any provision contained in this Agreement shall be declared invalid, illegal or unenforceable by a court or other lawful authority of competent jurisdiction, such provision shall be deemed not to affect or impair the validity or enforceability of any other provision of this Agreement, which shall continue to have full force and effect. 8.10 Headings. The headings in this Agreement are inserted for convenience of reference only and shall not affect the construction or interpretation of this Agreement. 8.11 Number and Gender. Wherever the singular or masculine or neuter is used in this Agreement, the same shall be construed as meaning the plural or feminine or a body politic or corporate and vice versa where the context so requires. 8.12 Time. Time shall be of the essence of this Agreement. In the event that any day on or before which any action is required to be taken hereunder is not a business day, then such action shall be required to be taken at or before the requisite time on the next succeeding day that is a business day. For the purposes of this Agreement, "business day" means a day which is not Saturday or Sunday or a statutory holiday in Reno, Nevada, U.S.A. 8.13 Enurement. This Agreement is intended to bind and enure to the benefit of the Company, its successors and assigns, and the Contractor and the personal legal representatives of the Contractor. 8.14 Counterparts. This Agreement may be executed in several counterparts, each of which will be deemed to be an original and all of which will together constitute one and the same instrument. 8.15 Currency. Unless otherwise provided, all dollar amounts referred to in this Agreement are in lawful money of the United States of America. 8.16 Electronic Means. Delivery of an executed copy of this Agreement by electronic facsimile transmission or other means of electronic communication capable of producing a printed copy will be deemed to be execution and delivery of this Agreement as of the effective date of this Agreement. 12 8.17 Proper Law. This Agreement will be governed by and construed in accordance with the law of the State of Nevada. The parties hereby attorn to the jurisdiction of the Courts in the State of Nevada. IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the day and year first above written. AMERICAN EAGLE ENERGY INC. Per: -------------------------------------------- Richard Findley, President SYNERGY RESOURCES LLC Per: -------------------------------------------- Authorized Signatory EX-10.2 3 ex10-2.txt ESCROW AGREEMENT Exhibit 10.2 ESCROW AGREEMENT THIS made as of 21st day of December, 2009 AMONG: AMERICAN EAGLE ENERGY INC. (the "Company") OF THE FIRST PART AND: SYNERGY RESOURCES LLC ("Synergy") OF THE SECOND PART AND: W.L. MACDONALD LAW CORPORATION (the "Escrow Agent") OF THE THIRD PART WITNESSES THAT WHEREAS: A. Pursuant to a Consulting Agreement dated December 21, 2009 entered into between the Company and Synergy, Synergy has agreed to acquire 10,000,000 shares (the "Shares") of the Company in exchange for certain consulting services as described therein; B. The parties have agreed that 4,500,000 of the Shares are to be held in escrow until the milestones described herein have been achieved; and C. The Company, and Synergy desire to appoint the Escrow Agent, and the Escrow Agent has agreed to act as escrow agent to hold the Shares and the Transfer Documents in accordance with the terms hereof. THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties covenant and agree as follows: 1. DEFINITIONS AND INTERPRETATION 1.1 Wherever used in this Agreement, unless the context otherwise requires, the following words and terms will have the meanings shown: (a) "Agreement" means this Escrow Agreement and any amendments to it; (b) "Company" means American Eagle Energy Inc.; (c) "Escrow Agent" means W.L. Macdonald Law Corporation; -2- (d) "Escrow Documents" means the Shares and the Transfer Documents and any other documents delivered to the Escrow Agent to be held in escrow pursuant hereto; (e) "Milestones" means the achievement of the following condition for the release of the Shares indicated:
Transferred to Number of Shares Milestones - Condition of Delivery -------------- ---------------- ---------------------------------- Synergy 2,250,000 upon Upon the Company identifying two Suitable Well Candidates in Resources LLC the satisfaction the Williston basin for testing of the "Madison Fracture of each Milestone Play", that was introduced to it by Synergy Resources LLC or its agents, with 2,250,000 Shares released for each Suitable Well Candidate.
(f) "Consulting Agreement" means the Consulting Agreement dated December 21, 2009 entered into between the Company and Synergy; (g) "Shares" means 4,500,000 fully paid and non-assessable common shares in the capital stock of the Company to be registered in the name of Synergy; (h) "Suitable Well Candidate" means: * One that would represent a valid test of the geologic and engineering model presented by Synergy, * In the case of a re-entry or recompletion, a wellbore that is mechanically sound, * In the case of a re-entry or recompletion, that such candidate can be acquired for economically viable terms either by purchase or farm-in, * A new drill location that can be developed more cost effectively than either a re-entry or recompletion, and (i) "Transfer Documents" means, if required, duly executed Stock Transfer Powers of Attorney for each share certificate representing the Shares, authorizing the transfer of the Shares to the Company. 1.2 In this Agreement: (a) the headings have been inserted for convenience of reference only and in no way define, limit, or enlarge the scope or meaning of the provisions of this Agreement; (b) all references to any party, whether a party to this Agreement or not, will be read with such changes in number and gender as the context or reference requires; and (c) when the context hereof makes it possible, the word "person" includes in its meaning any firm and any body corporate or politic. -3- 2. DEPOSIT INTO ESCROW 2.1 The Company will, as soon as practicable following execution of this Agreement, deliver the Escrow Documents to the Escrow Agent and the Escrow Agent will hold the Escrow Documents in escrow subject to the terms and conditions of this Agreement. 2.2 The Escrow Agent will hold the Escrow Documents in escrow and undelivered and will, unless then prohibited by an order of a Court of competent jurisdiction, deliver the Escrow Documents to Synergy upon confirmation of satisfaction of the Milestones, as set out herein. 2.3 The parties irrevocably authorize and direct the Escrow Agent to deliver the Escrow Documents to Synergy at any time upon the satisfaction of the Milestones, provided the Share Certificates have been delivered by the Company to the Escrow Agent in accordance with paragraph 0 and the Escrow Agent has received written confirmation and authorization from the Company that the applicable Milestone has been achieved. 2.4 In the event that the Milestones are not achieved by December 21, 2010, the parties irrevocably authorize and instruct the Escrow Agent to cancel the Shares and return them to the treasury of the Company and assign all rights that that may have been acquired in the Madison Fracture Play to Synergy. 3. ESCROW PROVISIONS 3.1 The Company and Synergy hereby direct the Escrow Agent to retain the Escrow Documents and not to cause anything to be done to release the same from Escrow except in accordance with this Agreement. The Escrow Agent accepts its responsibilities hereunder and agrees to perform them in accordance with the terms hereof. 4. ESCROW AGENT 4.1 In exercising the rights, duties and obligations prescribed or confirmed by this Agreement, the Escrow Agent will act honestly and in good faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. 4.2 The Company and Synergy jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors and assigns from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith with the terms hereof. 4.3 In case proceedings should hereafter be taken in any court respecting the Escrow Documents, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 0 against its costs of such proceedings. -4- 4.4 The Escrow Agent will have no responsibility in respect of loss of the Escrow Documents except the duty to exercise such care in the safekeeping thereof as it would exercise if the Escrow Documents belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel. 4.5 The Escrow Agent will not be bound in any way by any contract between the other parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Escrow Documents as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Escrow Documents or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential for their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. 4.6 In the event that the Escrow Documents are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, orders, judgments or decrees, it will not be liable to any of the parties hereto or to any other person, form or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. 4.7 Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgments or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. 4.8 If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Escrow Documents until the lawful determination of the issue between the parties hereto. 4.9 If written notice of protest is made by either Synergy or the Company to the Escrow Agent to any action contemplated by the Escrow Agent under this Agreement, and such notice sets out reasons for such protest, the Escrow Agent -5- may continue to hold the Escrow Documents until the right to the documents is legally determined by a court of competent jurisdiction or otherwise. 4.10 The Escrow Agent may resign as Escrow Agent by giving not less than 30 days' notice thereof to Synergy and the Company. Synergy and the Company may terminate the Escrow Agent by giving not less than 30 days' notice to the Escrow Agent. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is 30 days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, Synergy and the Company may agree upon. All indemnities granted to the Escrow Agent herein will survive the termination of this Agreement or the termination or resignation of the Escrow Agent. 4.11 Notwithstanding anything herein to the contrary, the Escrow Agent may act upon any written instructions given jointly by the Company and Synergy. 4.12 Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between Synergy and the Company with respect to the Consulting Agreement, this Agreement or any matters arising thereto, the Escrow Agent may in its sole discretion deliver and interplead the Escrow Documents and all funds held in the Escrow Account into court and such delivery and interpleading will be an effective discharge to the Escrow Agent. 4.13 It is understood that in addition to acting as the Escrow Agent hereunder, the Escrow Agent is also acting as solicitor for the Company and not for any other party to this Agreement and the parties have requested that the Escrow Agent act in this capacity. 4.14 The Company and Synergy acknowledge that they have been advised to consult their own legal advisors with respect to this Agreement, the applicable hold periods and resale restrictions regarding the Shares and they covenant and agree that they are solely responsible for compliance with all applicable restrictions in regards to the Shares. 5. GENERAL 5.1 Except as herein otherwise provided, no subsequent alteration, amendment, change, or addition to this Agreement will be binding upon the parties hereto unless reduced to writing and signed by the parties. 5.2 This Agreement will enure to the benefit of and be binding upon the parties and their respective heirs, executors, administrators and successors. 5.3 The parties will execute and deliver all such further documents, do or cause to be done all such further acts and things, and give all such further assurances as may be necessary to give full effect to the provisions and intent of this Agreement. 5.4 Synergy will at the Company's request provide all Transfer Documents to the Escrow Agent necessary to carry out the intent of this Agreement. If the Company or Synergy is comprised of more than one person, then tender on any one of those persons will be sufficient. -6- 5.5 This Agreement will be governed by and construed in accordance with the law of the State of Nevada. 5.6 Any notice required or permitted to be given under this Agreement will be in writing and may be given by delivering, sending by electronic facsimile transmission or other means of electronic communication capable of producing a printed copy, or sending by prepaid registered mail posted in the United States, the notice to the following address: (a) If to the Company: AMERICAN EAGLE ENERGY INC. 27 North 27th Street, Suite 21G Billings, Montana 59101 (b) If to Synergy: SYNERGY RESOURCES LLC (c) If to the Escrow Agent: W.L. MACDONALD LAW CORPORATION 1210 - 777 Hornby Street Vancouver, BC V6Z 1S4 Attention: William L. Macdonald Fax: (604) 681-4760 (or to such other address as any party may specify by notice in writing to another party). Any notice delivered or sent by electronic facsimile transmission or other means of electronic communication capable of producing a printed copy on a business day will be deemed conclusively to have been effectively given on the day the notice was delivered, or the electronic communication was successfully transmitted, as the case may be. Any notice sent by prepaid registered mail will be deemed conclusively to have been effectively given on the third business day after posting; but if at the time of posting or between the time of posting and the third business day thereafter there is a strike, lockout, or other labour disturbance affecting postal service, then the notice will not be effectively given until actually delivered. 5.7 Time is of the essence of this Agreement. 5.8 It is understood and agreed by the parties to this Agreement that the only duties and obligations of the Escrow Agent are those specifically stated herein and no other. -7- IN WITNESS WHEREOF the parties have caused this Agreement to be executed under seal and delivered this 21st day of December, 2009. AMERICAN EAGLE ENERGY INC. Per: -------------------------------------------- Authorized signatory SYNERGY RESOURCES LLC Per: -------------------------------------------- Authorized signatory W.L. MACDONALD LAW CORPORATION Per: -------------------------------------------- Authorized signatory -----END PRIVACY-ENHANCED MESSAGE-----