Common use of Top-up Offering Clause in Contracts

Top-up Offering. (a) Without limiting Section 5.3, the Company agrees that, subject to the terms of this Section 5.5, Section 5.9, and Section 5.11: (i) the Investor (directly or through an Affiliate, in which case the provisions of this ARTICLE 5 shall apply mutatis mutandis) has the right (the “Top-up Right”) to subscribe for and to be issued in connection with the issuance of Common Shares on the conversion, exercise or exchange of Convertible Securities (a “Dilutive Conversion”) up to such number of Common Shares (the “Top-up Shares”) that will allow the Investor to maintain a percentage ownership interest in the issued and outstanding Common Shares, after giving effect to such Dilutive Conversions referenced in the Top-up Notice (as defined below), that is the same as the percentage ownership interest that it would have had but for the Dilutive Conversions referenced in the Top-Up Notice; and (ii) the Top-up Right shall be exercisable from time to time following Dilutive Conversions that result in the reduction of the Investor’s percentage ownership interest by at least 0.5%, in the aggregate (the “Top-up Threshold”). (b) Subject to Section 5.5(d), within 10 Business Days of the date on which one or more Dilutive Conversions occurs resulting in the Top-up Threshold being achieved, the Company shall deliver a written notice (a “Top-up Notice”) to the Investor notifying the Investor that its Top-up Right has become exercisable and setting out the number of Convertible Securities converted, exercised or exchanged into Common Shares, and the total number of issued and outstanding Common Shares following such Dilutive Conversions and any other conversions, exercises and exchanges of Convertible Securities from the end of the last period in respect of which a Top-up Notice was delivered. (c) Subject to Section 5.7(c) and Section 5.7(d), if the Investor delivers an Exercise Notice in accordance with Section 5.6, the Company shall in accordance with the provisions of this ARTICLE 5, promptly, and in any event within 30 days of the date on which the relevant Top-up Notice was delivered, complete an offering to the Investor of the number of Top-up Shares that the Investor wishes to subscribe for pursuant to the Top-up Right, as specified in the Exercise Notice, at an offering price per Top-up Share determined pursuant to Section 5.8(b) (each, a “Top-up Offering”). (d) Notwithstanding Section 5.5(a), Section 5.5(b) or Section 5.5(c), if a Top-up Threshold is achieved in, or is determined by the Company, acting reasonably, to be likely to occur prior to the date on which a record date for a meeting of Shareholders is to be set, prior to setting such record date the Company shall deliver a Top-up Notice to the Investor and, if the Investor delivers an Exercise Notice in accordance with Section 5.6 in response to a Top-up Notice delivered pursuant to this Section 5.5(d), the Company shall use its commercially reasonable efforts in accordance with the provisions of this ARTICLE 5 to complete a Top-up Offering to the Investor prior to declaring the record date for such Shareholder meeting.

Top-up Offering. (a) Without limiting Section 5.33.2, the Company agrees that, subject to the terms of this Section 5.5, Section 5.9, and Section 5.113.3: (i) the Investor (directly or through an Affiliate, in which case the provisions of this ARTICLE 5 shall apply mutatis mutandis) has the right (the “Top-up Right”) to subscribe for and to be issued in connection with the issuance of Common Shares pursuant to the Monitor Gold Option Agreements and on the conversion, exercise or exchange of Convertible Securities (a “Dilutive ConversionIssuance”) up to such number of Common Shares that will allow the Investor (at its election and in its sole discretion) to maintain or acquire up to, as applicable, a percentage ownership interest in the Common Shares equal to the Participating Percentage, in each case after giving effect to such Dilutive Issuance (the “Top-up Shares”) that will allow the Investor to maintain a percentage ownership interest in the issued and outstanding Common Shares, after giving effect to such Dilutive Conversions referenced in the Top-up Notice (as defined below), that is the same as the percentage ownership interest that it would have had but for the Dilutive Conversions referenced in the Top-Up Notice; and (ii) the Top-up Right shall be exercisable from time to time following Dilutive Conversions Issuances that result in the reduction of the Investor’s percentage ownership interest by at least 0.51.0%, in the aggregate (the “Top-up Threshold”). The Top-up Threshold shall be calculated by aggregating all Dilutive Issuances that occurred in each case from the later of (A) the date of this Agreement, (B) the date of the last Top-up Notice or (C) the date of completion of the last Top-up Offering. (b) Subject to Section 5.5(d3.3(d), within 10 Business Days of the date on which end of each of the first and third fiscal quarters, provided that during such fiscal quarter or during the previous fiscal quarter one or more Dilutive Conversions occurs Issuances occured resulting in the Top-up Threshold being achieved, the Company shall deliver a written notice (a “Top-up Notice”) to the Investor notifying the Investor that its Top-up Right has become exercisable and setting out containing the number of Existing Convertible Securities converted, exercised or exchanged into Common Shares, and the total number of issued and outstanding Common Shares following such Dilutive Conversions Issuances and any other conversions, exercises and exchanges of Convertible Securities Securities, in each case from the end later of (A) the date of this Agreement, (B) the date of the last period in respect of which a Top-up Notice was deliveredor (C) the date of completion of the last Top-up Offering. (c) Subject to Section 5.7(c) and Section 5.7(d), if If the Investor delivers an Exercise Notice in accordance with Section 5.63.4, the Company shall in accordance with the provisions of this ARTICLE 5Article 3, promptly, and in any event within 30 days of the date on which the relevant Top-up Notice was delivered, complete an offering to the Investor of the number of Top-up Shares that the Investor wishes to subscribe for pursuant to the Top-up Right, as specified in the Exercise Notice, at an offering price per Top-up Share determined pursuant equal to Section 5.8(b) the Market Price of the Common Shares on or after the date the Top-up Notice was delivered to the Investor (each, a “Top-up Offering”). For greater certainty, each Top-up Offering will be an offering of Common Shares. (d) Notwithstanding Section 5.5(a3.3(a), Section 5.5(b3.3(b) or Section 5.5(c3.3(c), if a Top-up Threshold is achieved in, or is determined by the Company, acting reasonably, to be likely to occur prior to the date on which end of, a fiscal quarter prior to setting the record date for a any meeting of Shareholders is to be setshareholders, prior to setting such record date the Company shall deliver a Top-up Notice to the Investor and, if the Investor delivers an Exercise Notice in accordance with Section 5.6 3.4 in response to a Top-up Notice delivered pursuant to this Section 5.5(d3.3(d), the Company shall use its commercially reasonable efforts in accordance with the provisions of this ARTICLE 5 Article 3, promptly, and in any event prior to declaring the record date for such shareholder meeting, complete a Top-up Offering to the Investor prior to declaring the record date for such Shareholder meetingInvestor.

Top-up Offering. (a) Without limiting Section 5.33.2, the Company agrees that, subject to the terms of this Section 5.5, Section 5.9, and Section 5.113.3: (i) the Investor (directly or through an Affiliate, in which case the provisions of this ARTICLE 5 shall apply mutatis mutandis) has the right (the “Top-up Right”) to subscribe for and to be issued in connection with the issuance of Common Shares pursuant to the Monitor Gold Option Agreements and on the conversion, exercise or exchange of Convertible Securities (a “Dilutive ConversionIssuance”) up to such number of Common Shares that will allow the Investor (at its election and in its sole discretion) to maintain or acquire up to, as applicable, a percentage ownership interest in the Common Shares equal to the Participating Percentage, in each case after giving effect to such Dilutive Issuance (the “Top-up Shares”) that will allow the Investor to maintain a percentage ownership interest in the issued and outstanding Common Shares, after giving effect to such Dilutive Conversions referenced in the Top-up Notice (as defined below), that is the same as the percentage ownership interest that it would have had but for the Dilutive Conversions referenced in the Top-Up Notice; and (ii) the Top-up Right shall be exercisable from time to time following Dilutive Conversions Issuances that result in the reduction of the Investor’s percentage ownership interest by at least 0.51.0%, in the aggregate (the “Top-up Threshold”). The Top-up Threshold shall be calculated by aggregating all Dilutive Issuances that occurred in each case from the later of (A) the date of the Original Agreement, (B) the date of the last Top-up Notice or (C) the date of completion of the last Top-up Offering. (b) Subject to Section 5.5(d3.3(d), within 10 Business Days of the date on which end of each of the first and third fiscal quarters, provided that during such fiscal quarter or during the previous fiscal quarter one or more Dilutive Conversions occurs Issuances occurred resulting in the Top-up Threshold being achieved, the Company shall deliver a written notice (a “Top-up Notice”) to the Investor notifying the Investor that its Top-up Right has become exercisable and setting out containing the number of Existing Convertible Securities converted, exercised or exchanged into Common Shares, and the total number of issued and outstanding Common Shares following such Dilutive Conversions Issuances and any other conversions, exercises and exchanges of Convertible Securities Securities, in each case from the end later of (A) the date of the Original Agreement, (B) the date of the last period in respect of which a Top-up Notice was deliveredor (C) the date of completion of the last Top-up Offering. (c) Subject to Section 5.7(c) and Section 5.7(d), if If the Investor delivers an Exercise Notice in accordance with Section 5.63.4, the Company shall in accordance with the provisions of this ARTICLE 5Article 3, promptly, and in any event within 30 days of the date on which the relevant Top-up Notice was delivered, complete an offering to the Investor of the number of Top-up Shares that the Investor wishes to subscribe for pursuant to the Top-up Right, as specified in the Exercise Notice, at an offering price per Top-up Share determined pursuant equal to Section 5.8(b) the Market Price of the Common Shares on or after the date the Top-up Notice was delivered to the Investor (each, a “Top-up Offering”). For greater certainty, each Top-up Offering will be an offering of Common Shares. (d) Notwithstanding Section 5.5(a3.3(a), Section 5.5(b3.3(b) or Section 5.5(c3.3(c), if a Top-up Threshold is achieved in, or is determined by the Company, acting reasonably, to be likely to occur prior to the date on which end of, a fiscal quarter prior to setting the record date for a any meeting of Shareholders is to be setshareholders, prior to setting such record date the Company shall deliver a Top-up Notice to the Investor and, if the Investor delivers an Exercise Notice in accordance with Section 5.6 3.4 in response to a Top-up Notice delivered pursuant to this Section 5.5(d3.3(d), the Company shall use its commercially reasonable efforts in accordance with the provisions of this ARTICLE 5 Article 3, promptly, and in any event prior to declaring the record date for such shareholder meeting, complete a Top-up Offering to the Investor prior to declaring the record date for such Shareholder meetingInvestor.

Top-up Offering. (a) Without limiting Section 5.34.2, the Company Corporation agrees that, subject to the terms of this Section 5.5, Section 5.9, 4.3 and Section 5.114.8, provided that the Investor owns at least 10% of the issued and outstanding Common Shares: (i) the Investor (directly or through an Affiliate, in which case the provisions of this ARTICLE 5 Article 4 shall apply mutatis mutandis) has the right (the “Top-up Right”) to subscribe for and to be issued in connection with the issuance of Common Shares on the conversion, exercise or exchange of Existing Convertible Securities (a “Dilutive Conversion”) up to such number of Common Shares (the “Top-up Shares”) that will allow the Investor to maintain a percentage ownership interest in the issued and outstanding Common Shares, after giving effect to such Dilutive Conversions referenced in the Top-up Notice (as defined below), that is the same as the percentage ownership interest that it would have had but for the Dilutive Conversions referenced in the Top-Up Notice; and (ii) the Top-up Right shall be exercisable from time to time following Dilutive Conversions that result in the reduction of the Investor’s percentage ownership interest by at least 0.51.0%, in the aggregate (the “Top-up Threshold”). (b) Subject to Section 5.5(d4.3(d), within 10 Business Days of the date on which one or more Dilutive Conversions occurs resulting in the Top-up Threshold being achieved, the Company Corporation shall deliver a written notice (a “Top-up Notice”) to the Investor notifying the Investor that its Top-up Right has become exercisable and setting out the number of Existing Convertible Securities converted, exercised or exchanged into Common Shares, and the total number of issued and outstanding Common Shares following such Dilutive Conversions and any other conversions, exercises and exchanges of Convertible Securities from the end of the last period in respect of which a Top-up Notice was delivered.. ​ ​ (c) Subject to Section 5.7(c4.5(c) and Section 5.7(d4.5(d), if the Investor delivers an Exercise Notice in accordance with Section 5.64.4, the Company Corporation shall in accordance with the provisions of this ARTICLE 5Article 4, promptly, and in any event within 30 days of the date on which the relevant Top-up Notice was delivered, complete an offering to the Investor of the number of Top-up Shares that the Investor wishes to subscribe for pursuant to the Top-up Right, as specified in the Exercise Notice, at an offering price per Top-up Share determined pursuant to Section 5.8(b4.6(b) (each, a “Top-up Offering”). (d) Notwithstanding Section 5.5(a4.3(a), Section 5.5(b4.3(b) or Section 5.5(c4.3(c), if a Top-up Threshold is achieved in, or is determined by the CompanyCorporation, acting reasonably, to be likely to occur prior to the date on which a record date for a meeting of Shareholders is to be set, prior to setting such record date the Company Corporation shall deliver a Top-up Notice to the Investor and, if the Investor delivers an Exercise Notice in accordance with Section 5.6 4.4 in response to a Top-up Notice delivered pursuant to this Section 5.5(d4.3(d), the Company Corporation shall use its commercially reasonable efforts in accordance with the provisions of this ARTICLE 5 to complete a Top-up Offering to the Investor Article 4, promptly, and in any event prior to declaring the record date for such Shareholder meeting, complete a Top-up Offering to the Investor.