EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made as of January
21, 2009 between NovaGold Resources Inc. (the "Company") and Electrum Strategic
Resources LLC (the "Purchaser").
WHEREAS, the Company and the Purchaser are parties to the Unit Purchase
Agreement (the "Purchase Agreement"), dated December 31, 2008, pursuant to which
the Purchaser purchased Units comprised of common shares in the capital of the
Company and warrants to purchase additional common shares of the Company and
received certain registration rights in connection therewith.
NOW, THEREFORE, in consideration of the premises and of the mutual
provisions, agreements and covenants contained herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Demand Registration. At any time after the Closing Date (as defined in the
Purchase Agreement), upon the written request of Investors (as defined
below) holding at least an aggregate of twenty-five percent (25%) of the
Registrable Securities (as defined below) then outstanding (the
"Requesting Holders"), the Company shall use its reasonable best efforts
to register under the Securities Act of 1933, as amended (the "Securities
Act") all or any portion (as required by the Requesting Holders) of the
Registrable Securities held by the Requesting Holders having an aggregate
offering or sale price of at least $5,000,000, for sale in the manner
specified in such notice (a "Demand Registration"). The Company shall not
be required to effect more than three Demand Registrations or
Qualifications (as defined in the Canadian qualification agreement entered
into at Closing), in the aggregate; provided, however, that in the event
the Purchaser acquires Warrant Shares upon the exercise of Warrants (as
defined in the Purchase Agreement) within 30 days following a request by
the Company that the Purchaser exercise Warrants, the Purchaser may make a
request for a Demand Registration of some or all the Warrant Shares so
acquired (notwithstanding that such Warrant Shares may have an aggregate
offering or sale price of less than US$5,000,000), and such Demand
Registration will not count as one of the three Demand Registrations
otherwise allowed by this Agreement.
a. For the purposes of this Agreement, "Registrable Securities" shall
mean (i) common shares in the capital of the Company purchased by
the Purchaser pursuant to the Purchase Agreement ("Common Shares")
and (ii) common shares issuable upon exercise of Warrants (as
defined in the Purchase Agreement) ("Warrant Shares" and together
with the Common Shares, the "Shares"); provided that such securities
shall cease to be Registrable Securities when (i) a registration
statement registering all such Registrable Securities under the
Securities Act has been declared or becomes effective and such
Registrable Securities have been sold or otherwise transferred by
the holder thereof pursuant to such effective registration
statement; (ii) such Registrable Securities are sold pursuant to
Rule 144 under circumstances in which any legend borne by such
Registrable Securities relating to restrictions on the
transferability thereof, under the Securities Act or otherwise, is
removed by the Company in accordance with applicable law; or (iii)
such Registrable Securities can be sold without any restriction by
the volume limitations of Rule 144(e) of the Securities Act; or (iv)
such Registrable Securities are transferred to a person that does
not become an Investor within 10 business days of acquiring
Registrable Securities.
b. For purposes of this Agreement, "Investor" means the Purchaser, any
transferee(s) or assignee(s) to whom the Purchaser assigns its
rights under this Agreement and who agrees to become bound by the
provisions of this Agreement in accordance with Section 13 and any
transferee(s) or assignee(s) to whom a transferee or assignee
assigns its rights under this Agreement and who agrees to become
bound by the provisions of this Agreement in accordance with Section
13.
c. Following receipt of any notice by Requesting Holders, the Company
shall immediately notify Investors holding Registrable Securities
from whom notice has not been received and such Investors shall then
be entitled within ten (10) days thereafter to request the Company
to include in the requested registration all or any portion of their
Registrable Securities. The Company may also register for sale for
its own account or that of other security holders having the
contractual right to include such securities in such registration
statement such additional shares of the Company's capital stock as
it shall desire, subject to paragraph (e) below. For purposes of
this Agreement, Investors that elect to have such securities
registered in accordance with the terms of this Agreement shall be
referred to individually as a "Selling Holder" and collectively as
the "Selling Holders".
d. In connection with any registration pursuant to this Section 1, the
Company shall:
i. subject to receipt of necessary information from the Selling
Holders after prompt request from the Company to such holders
to provide such information (provided that failure on the part
of one or more of the Selling Holders to provide the necessary
information requested shall not relieve the Company from its
obligation to use reasonable best efforts with respect to
complying Selling Holders), prepare and file with the United
States Securities and Exchange Commission ("SEC"), within
thirty (30) days after the end of the notice period set forth
in (c) above, a registration statement to enable the resale of
the Registrable Securities by the Selling Holders (a "Demand
Registration Statement"); provided, that if the terms of the
underwriting agreement executed in connection with any
registration pursuant to Section 1 or 2 of this Agreement
prohibit the Company from filing any Demand Registration
Statement, the Company shall have the right to delay such
filing for the required period, which period shall not exceed
forty-five (45) days;
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ii. use its reasonable best efforts (provided that failure on the
part of one or more of the Selling Holders to provide the
necessary information requested shall not relieve the Company
from its obligation to use reasonable best efforts with
respect to complying Selling Holders), to cause the Demand
Registration Statement to become effective as promptly as
practicable after the initial filing thereof with the SEC (the
date such registration statement is initially declared
effective by the SEC, the "Effective Date"), such efforts to
include, without limiting the generality of the foregoing,
preparing and filing with the SEC in such period any financial
statements that are required to be filed prior to the
effectiveness of such registration statement;
iii. use its reasonable best efforts to prepare and file with the
SEC such amendments and supplements to such Demand
Registration Statement and the prospectus used in connection
therewith as may be necessary to keep such Demand Registration
Statement current, effective and free from any material
misstatement or omission to state a material fact for a period
not exceeding, with respect to each Selling Holder's
Registrable Securities to be sold thereunder, the earliest of
(a) the date on which such Selling Holder may sell all such
Registrable Securities without restriction by the volume
limitations of Rule 144(e) of the Securities Act, (b) the
second anniversary of the effective date of such Demand
Registration Statement, or (c) until the date on which there
shall cease to be any Registrable Securities registered by
such Demand Registration Statement;
iv. If, in the good faith judgment of the Company's board of
directors it would be seriously detrimental to the Company or
its shareholders to file a Registration Statement, or an
amendment or supplement to a Registration Statement in the
near future (and the Company provides the Investors with a
certificate from its Chief Executive Officer or Chief
Financial Officer stating as such), the Company may defer
taking action to comply with this Section 1, provided that the
Company shall not defer actions pursuant to such notices for
more than 60 days in the aggregate in any 12 month period; and
v. The Company shall not be required to file a Demand
Registration Statement pursuant to this Section 1 if within 10
days of receipt of a request for registration, it notifies the
Requesting Holders that it intends to conduct a public
offering of securities for the account of the Company within
the next 60 days, provided that the Company shall not exercise
its rights under this subsection more than twice in any 12
month period. If the Company determines not to conduct such
public offering, the Company shall provide prompt notice to
the Investors of such determination.
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e. In connection with any registration pursuant to this Section 1, the
Requesting Holders may elect to sell Registrable Securities in an
underwritten offering in accordance with the conditions set forth in
this paragraph. In any such underwritten offering, the investment
bank that will manage the offering will be selected by, and the
underwriting arrangements with respect thereto will be approved by,
the Requesting Holders holding a majority of the Registrable
Securities to be sold pursuant to such offering by such Requesting
Holders, subject, in each case, to the consent of the Company, which
consent will not be unreasonably withheld, it being acknowledged
that if such offering is being made under the multijurisdictional
disclosure system at least one of such underwriters will be a
Canadian registrant. No Investor may participate in any underwritten
offering hereunder unless such Investor (A) agrees to sell such
Investor's Registrable Securities to be sold thereunder on the basis
provided in any underwriting arrangements approved pursuant hereto
and (B) completes and executes all other customary questionnaires,
powers of attorney, indemnities, underwriting agreements and other
documents required under the terms of such underwriting
arrangements. In the case of any such underwritten offering, if the
managing underwriter for such offering advises the Company in
writing that in their good faith opinion the amount of securities
requested to be included therein exceeds the amount of securities
that can be sold in such offering such that the inclusion of such
Registrable Securities would adversely affect marketing of the
securities to be sold pursuant to the offering, the Company shall
not exclude any Registrable Securities unless the Company has first
excluded, all outstanding securities, the holders of which are not
entitled by contract to inclusion of such securities in such
registration statement or are not entitled to pro rata inclusion
with the Registrable Securities, provided, that after giving effect
to the foregoing, any exclusion of Registrable Securities shall be
made pro rata with holders of other securities having the
contractual right to include such securities in the registration
statement other than holders of securities entitled to inclusion of
their securities in such registration statement by reason of demand
registration rights.
2. Piggyback Registration.
a. If the Company at any time proposes to register any of its equity
securities under the Securities Act for sale to the public for cash,
whether for its own account or for the account of other security
holders or both on any registration form (other than Forms F-4, F-8,
F-80, F-10 (in connection with a business combination or exchange
offer), X-0, X-0 or another form not available for registering the
Registrable Securities for sale to the public) which permits the
inclusion of Registrable Securities held by any Investor (a
"Piggyback Registration"), then each such time the Company will give
written notice to all Investors that then hold Registrable
Securities of its intention so to do. Upon the written request of
any Investor received by the Company within ten (10) days after the
giving of any such notice by the Company and subject to receipt of
necessary information from such Investor in accordance with the
terms of this Agreement, to register any of such Investor's
Registrable Securities, the Company will cause the Registrable
Securities as to which registration shall have been so requested to
be included in the securities to be covered by the registration
statement proposed to be filed by the Company, all to the extent
requisite to permit the sale or other disposition by such Investor.
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b. The Company shall have the right to select the managing
underwriter(s) for any underwritten Piggyback Registration. All
Investors proposing to sell their Registrable Securities in such
underwritten offering shall (together with the Company) enter into
an underwriting agreement in customary form. If such proposed
Piggyback Registration is an underwritten offering and the managing
underwriter for such offering advises the Company that the
securities requested to be included therein exceed the amount of
securities that can be sold in such offering such that the inclusion
of such Registrable Securities would adversely affect marketing of
the securities to be sold by the Company, the Company shall not
exclude any Registrable Securities unless the Company has first
excluded, all outstanding securities, the holders of which are not
entitled by contract to inclusion of such securities in such
registration statement or are not entitled to pro rata inclusion
with the Registrable Securities, provided, that after giving effect
to the foregoing, any exclusion of Registrable Securities shall be
made pro rata with holders of other securities having the
contractual rights right to include such securities in the
registration statement other than holders of securities entitled to
inclusion of their securities in such registration statement by
reason of piggyback registration rights.
3. Registration Procedures and Other Matters. If and when the Company is
required by the provisions of Section 1 or 2 to register Registrable
Securities, the Company shall:
a. furnish to the Selling Holders with respect to the Registrable
Securities registered under any registration statement filed by the
Company pursuant to Sections 1 or 2 hereof (a "Registration
Statement") such number of copies of the Registration Statement,
prospectuses and preliminary prospectuses in conformity with the
requirements of the Securities Act and such other documents as the
Selling Holders may reasonably request, in order to facilitate the
public sale or other disposition of all or any of the Registrable
Securities by the Selling Holders;
b. file documents required for compliance with blue sky laws in states
specified in writing by any Selling Holder and use its reasonable
best efforts to maintain such blue sky qualifications until the date
on which there ceases to be any Registrable Securities outstanding;
provided, however, that the Company shall not be required to qualify
to do business or consent to service of process in any jurisdiction
in which it is not now so qualified or has not so consented;
c. bear all reasonable expenses in connection with the procedures in
Section 1 or 2 hereof and the registration of the Registrable
Securities pursuant to the Registration Statement, including the
fees of one legal counsel for all of the Selling Holders not to
exceed US$25,000 for each Registration Statement;
d. advise the Selling Holders promptly after it shall receive notice or
obtain knowledge of the issuance of any stop order by the SEC
delaying or suspending the effectiveness of the Registration
Statement or of the initiation or threat of any proceeding for that
purpose; and promptly use its reasonable best efforts to prevent the
issuance of any stop order or to obtain its withdrawal at the
earliest possible moment if such stop order should be issued; and
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e. provide a "Plan of Distribution" section of the Registration
Statement substantially in a form reasonably acceptable to the
Selling Holders (subject to the comments of the SEC).
f. Promptly following the effective date of the Registration Statement,
the Company shall advise its transfer agent that the Registrable
Securities covered by such Registration Statement are subject to an
effective registration statement and can be reissued free of
restrictive legend upon notice of a sale by a Selling Holder and
confirmation by such Selling Holder that it has complied with the
plan of distribution set forth in the Registration Statement and the
prospectus delivery requirements of applicable securities laws;
provided that the Company has not advised the transfer agent orally
or in writing that such Registration Statement has been suspended;
provided, further, that in the event the Company's transfer agent
requires an opinion of counsel to the Company for any such
reissuance, the Company shall use its reasonable best efforts to
cause its counsel to issue an opinion to the transfer agent stating
the foregoing within three business days after any such request for
an opinion by the transfer agent.
4. Transfer of Shares After Registration; Suspension.
a. The Company shall (A) prepare and file from time to time with the
SEC a post-effective amendment to the Registration Statement or a
supplement to the related prospectus or a supplement or amendment to
any document incorporated therein by reference or file any other
required document so that such Registration Statement will not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and so that, as thereafter
delivered to purchasers of the Registrable Securities being sold
thereunder, such prospectus will not contain any untrue statement of
a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading; (B)
provide the Selling Holders copies of any documents filed pursuant
to clause (A) above; and (C) inform each Selling Holder that the
Company has complied with its obligations in clause (A) above (or
that, if the Company has filed a post effective amendment to the
Registration Statement which has not yet been declared effective,
the Company will notify the Selling Holder to that effect, will use
its reasonable best efforts to secure the effectiveness of such
post-effective amendment as promptly as possible and will promptly
notify the Selling Holder pursuant to clause (A) above when the
amendment has become effective). At least three (3) business days
prior to the first anticipated filing of a post-effective amendment
to the Registration Statement or a supplement to the related
prospectus or a supplement or amendment to any document incorporated
therein by reference or file any other required document pursuant to
this Section 4(a), the Company shall provide copies of such
post-effective amendment, supplement or required document(s) to each
Selling Holder and its respective counsel.
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b. In the event (A) of any request by the SEC or any other federal or
state governmental authority during the period of effectiveness of
the Registration Statement for amendments or supplements to a
Registration Statement or related prospectus or for additional
information; (B) of the issuance by the SEC or any other federal or
state governmental authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose; (C) of the receipt by the Company of
any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Registrable Securities
for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; or (D) of any event or circumstance
which, in the good faith judgment of the Company's Chief Executive
Officer and Chief Financial Officer, makes it advisable to make any
changes in the Registration Statement or prospectus, or any document
incorporated or deemed to be incorporated therein by reference, so
that, in the case of the Registration Statement, it will not contain
any untrue statement of a material fact or any omission to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and that in the case of the
prospectus, it will not contain any untrue statement of a material
fact or any omission to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; then the
Company shall deliver a notice in writing to each Investor (the
"Suspension Notice") to the effect of the foregoing and, upon
receipt of such Suspension Notice, each Investor will refrain from
selling any Shares pursuant to the Registration Statement (a
"Suspension") and will keep confidential the fact that a Suspension
Notice has been issued and the content thereof until the Investor's
receipt of copies of a supplemented or amended prospectus prepared
and filed by the Company, or until the Investor is advised in
writing by the Company that the current prospectus may be used, and
the Investor has received copies of any additional or supplemental
filings that are incorporated or deemed incorporated by reference in
any such prospectus. The Company shall use its reasonable best
efforts to prevent the issuance of any Suspension, and, if any such
Suspension is issued, to take such action as may be necessary to
cause the withdrawal or termination of such Suspension at the
earliest possible moment and to notify the Investor who holds
Registrable Securities being sold (or, in the event of an
underwritten offering, the managing underwriters) of the issuance of
such Suspension and the resolution thereof. Notwithstanding Section
4(a) or the foregoing sentence, for an aggregate period of no more
than 60 days over any 12 month period, the Company shall not be
required to file any document or make any public disclosure
necessary to end a Suspension, if at such time, the board of
directors of the Company determines in good faith that taking such
action would be seriously detrimental to the Company and its
shareholders (and the Company provides to the Investors a
certificate of the Chief Executive Officer or Chief Financial
Officer of the Company as to such). In addition to and without
limiting any other remedies (including, without limitation, remedies
available under applicable law or in equity) available to the
Selling Holders, each Selling Holder shall be entitled to specific
performance in the event that the Company fails to comply with the
provisions of this Section 4(b).
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c. The Company may require each Investor participating in any
registration to furnish to the Company such information regarding
such Investor as required under applicable law and such Investor's
intended method of distribution of such Registrable Securities as
the Company may from time to time reasonably request in writing. At
least five (5) business days prior to the first anticipated filing
date of a registration statement, the Company shall notify each
Investor of the information the Company requires from each Investor.
d. Provided that a Suspension is not then in effect, any Investor may
sell Registrable Securities registered under the Registration
Statement, provided that it arranges for delivery of a current
prospectus to the transferee of such Registrable Securities in
compliance with applicable law. Upon receipt of a request therefor,
the Company agrees to provide an adequate number of current
prospectuses to the Selling Holders and to supply copies to any
other parties requiring such prospectuses.
5. Indemnification. For the purpose of this Section 5, the term "Selling
Stockholder" shall include each Investor, the directors, officers,
partners, mangers, members, employees, agents, each person who controls
any Investor within the meaning of the Securities Act or Securities
Exchange Act of 1934, as amended (the "Exchange Act") and any affiliate of
such Investor; the term "Registration Statement" shall include the
prospectus in the form filed as part of a Registration Statement at the
time of effectiveness (or, in the case of an underwritten offering, at the
time immediately prior to the pricing of the offering), and each exhibit,
supplement (including any free writing prospectus as defined under Rule
405 of the Securities Act) or amendment included in or relating to such
Registration Statement; and the term "untrue statement" shall include any
untrue statement or alleged untrue statement of a material fact, or any
omission or alleged omission to state in the Registration Statement a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
a. The Company agrees to indemnify and hold harmless each Selling
Stockholder from and against any joint or several losses, claims,
damages, expenses or liabilities to which such Selling Stockholder
may become subject (under the Securities Act or otherwise) insofar
as such losses, claims, damages, expenses or liabilities (or actions
or proceedings in respect thereof) arise out of, or are based upon,
(A) any breach of the representations or warranties of the Company
contained in this Agreement; (B) any untrue statement or alleged
untrue statement contained in the Registration Statement, as amended
at the time of effectiveness, (C) any failure by the Company to
fulfill any undertaking included in the Registration Statement, as
amended at the time of effectiveness or (D) any violation or alleged
violation by the Company of the Securities Act, Exchange Act, any
other law, including, without limitation, any state securities law,
or any rule or regulation thereunder relating to the offer or sale
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of the Registrable Securities. The Company will reimburse such
Selling Stockholder for any reasonable legal or other expenses
reasonably incurred in investigating, defending or preparing to
defend any such action, proceeding or claim; provided, however, that
the Company shall not be liable in any such case to the extent that
such loss, claim, damage or liability arises out of, or is based
upon, any untrue statement made in such Registration Statement in
reliance upon and in conformity with written information furnished
to the Company by or on behalf of any Selling Stockholder
specifically for use in preparation of the Registration Statement or
the failure of such Selling Stockholder to comply with its covenants
and agreements contained in this Agreement respecting the sale of
the Registrable Securities or any untrue statement in any prospectus
that is corrected in any subsequent prospectus that was delivered to
the Selling Stockholder prior to the pertinent sale or sales by the
Selling Stockholder. The Company shall reimburse each Selling
Stockholder for the amounts provided for herein on demand as such
expenses are incurred.
b. Each Investor, severally but not jointly, agrees to indemnify and
hold harmless the Company (and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act, each
officer of the Company who signs the Registration Statement and each
director of the Company) from and against any losses, claims,
damages or liabilities to which the Company (or any such officer,
director or controlling person) may become subject (under the
Securities Act or otherwise), insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect
thereof) arise out of, or are based upon, (A) any failure by such
Investor to comply with the covenants and agreements contained in
this Agreement respecting sale of the Registrable Securities, or (B)
any untrue statement contained in the Registration Statement if such
untrue statement was made in reliance upon and in conformity with
written information furnished by or on behalf of such Investor
specifically for use in preparation of the Registration Statement.
Such Investor will reimburse the Company (or such officer, director
or controlling person, as the case may be) for any reasonable legal
or other expenses reasonably incurred in investigating, defending or
preparing to defend any such action, proceeding or claim; provided
that such Investor's obligation to indemnify the Company shall be
limited to the amount received by such Investor from the sale of the
Registrable Securities giving rise to such obligation.
c. Promptly after receipt by any indemnified person of a notice of a
claim or the beginning of any action in respect of which indemnity
is to be sought against an indemnifying person pursuant to this
Section 5, such indemnified person shall notify the indemnifying
person in writing of such claim or of the commencement of such
action, but the omission to so notify the indemnifying person will
not relieve such indemnifying person from any liability which it may
have to any indemnified person under this Section 5, except to the
extent that such omission materially and adversely affects the
indemnifying person's ability to defend such action. Subject to the
provisions hereinafter stated, in case any such action shall be
brought against an indemnified person, the indemnifying person shall
be entitled to participate therein, and, to the extent that it shall
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elect by written notice delivered to the indemnified person promptly
after receiving the aforesaid notice from such indemnified person,
shall be entitled to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified person. After notice
from the indemnifying person to such indemnified person of its
election to assume the defense thereof, such indemnifying person
shall not be liable to such indemnified person for any legal
expenses subsequently incurred by such indemnified person in
connection with the defense thereof; provided, however, that if
there exists or shall exist a conflict of interest that would make
it inappropriate, in the opinion of counsel to the indemnified
person, for the same counsel to represent both the indemnified
person and such indemnifying person or any affiliate or associate
thereof, the indemnified person shall be entitled to retain its own
counsel at the reasonable expense of such indemnifying person;
provided, however, that no indemnifying person shall be responsible
for the fees and expenses of more than one separate counsel
(together with appropriate local counsel) for all indemnified
parties. In no event shall any indemnifying person be liable in
respect of any amounts paid in settlement of any action unless the
indemnifying person shall have approved the terms of such
settlement; provided that such consent shall not be unreasonably
withheld. No indemnifying person shall, without the prior written
consent of the indemnified person, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified
person is or could have been a party and indemnification could have
been sought hereunder by such indemnified person, unless such
settlement includes an unconditional release of such indemnified
person from all liability on claims that are the subject matter of
such proceeding.
d. If the indemnification provided for in this Section 5 is unavailable
to or insufficient to hold harmless an indemnified person under
subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions or proceedings in respect
thereof) referred to therein, then each indemnifying person shall
contribute to the amount paid or payable by such indemnified person
as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to
reflect the relative fault of the Company, on the one hand, and the
applicable Investor, as well as any other Selling Stockholders under
such Registration Statement, on the other, in connection with the
statements or omissions or other matters which resulted in such
losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations.
The relative fault shall be determined by reference to, among other
things, in the case of an untrue statement, whether the untrue
statement relates to information supplied by the Company, on the one
hand, or an Investor or other Selling Stockholder, on the other
hand, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue
statement. The Company and each Investor, severally but not jointly,
agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata
allocation (even if the Investor and other Selling Stockholders were
treated as one entity for such purpose) or by any other method of
allocation which does not take into account the equitable
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considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified person as a result of the losses,
claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified
person in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d),
each Investor shall not be required to contribute any amount in
excess of the amount by which the amount received by such Investor
from the sale of the Registrable Securities to which such loss
relates exceeds the amount of any damages which such Investor has
otherwise been required to pay by reason of such untrue statement.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. Each Investor's obligations in this subsection to
contribute shall be in proportion to its sale of Registrable
Securities to which such loss relates and shall not be joint with
any other Selling Stockholders.
6. Information Available. So long as the Registration Statement is effective
covering the resale of Registrable Securities owned by any Selling
Holders, the Company will furnish to such Selling Holders, upon the
reasonable request of any Selling Holder, an adequate number of copies of
the prospectuses to supply to any other party requiring such prospectuses;
and upon the reasonable request of such Selling Holder, the President or
the Chief Financial Officer of the Company (or an appropriate designee
thereof) will meet with such Selling Holder or a representative thereof at
the Company's headquarters to discuss all information relevant for
disclosure in the Registration Statement covering the Registrable
Securities and will otherwise cooperate with any Selling Holder conducting
an investigation for the purpose of reducing or eliminating such Selling
Holder's exposure to liability under the Securities Act, including, the
reasonable production of information at the Company's headquarters;
provided, that the Company shall not be required to disclose any
confidential information to or meet at its headquarters with any Selling
Holder until and unless the Selling Holder shall have entered into a
confidentiality agreement in form and substance reasonably satisfactory to
the Company with the Company with respect thereto.
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7. Notices. All notices, requests, consents and other communications
hereunder shall be in writing, shall be mailed (a) if within the United
States by first-class registered or certified airmail, or nationally
recognized overnight express courier, postage prepaid, or by facsimile, or
(b) if delivered from outside the United States, by International Federal
Express or facsimile, and shall be deemed given and received (i) if
delivered by first-class registered or certified mail, three business days
after so mailed, (ii) if delivered by nationally recognized overnight
carrier, one business day after so mailed, (iii) if delivered by
International Federal Express, two business days after so mailed, (iv) if
delivered by facsimile, upon electronic confirmation of receipt and shall
be delivered as addressed as follows:
a. if to the Company, to:
NovaGold Resources Inc.
Xxxxx 0000-000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
Xxxxxx X0X 0X0
Attn: Xxxx Xxx Xxxxxxxxxxxx
Fax: 000-000-0000
b. if to the Investor, at the address set forth below, or at such other
address or addresses as may have been furnished to the Company in
writing:
Electrum Strategic Resources LLC
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
Fax: 000-000-0000
8. Governing Law; Consent to Jurisdiction; Waiver of Jury Trial; Currency.
This Agreement shall be governed by, and construed in accordance with, the
internal laws of the State of New York, without regard to the choice of
law principles thereof. Each of the parties hereto irrevocably submits to
the exclusive jurisdiction of the courts of the State of New York located
in New York County and the United States District Court for the Southern
District of New York for the purpose of any suit, action, proceeding or
judgment relating to or arising out of this Agreement and the transactions
contemplated hereby. Each of the parties hereto irrevocably consents to
the jurisdiction of any such court in any such suit, action or proceeding
and to the laying of venue in such court. Each party hereto irrevocably
waives any objection to the laying of venue of any such suit, action or
proceeding brought in such courts and irrevocably waives any claim that
any such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum. EACH OF THE PARTIES HERETO WAIVES ANY
RIGHT TO REQUEST A TRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO THIS
AGREEMENT AND REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS
TO THIS WAIVER.
9. Changes. This Agreement may not be modified, waived or amended except
pursuant to an instrument in writing signed by the Company and Investors
holding the majority of the Registrable Securities, and any such
modification, waiver or amendment shall bind all Investors.
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10. Severability. In case any provision contained in this Agreement should be
invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein shall not
in any way be affected or impaired thereby.
11. Prior Agreements. This Agreement constitutes the entire agreement between
the parties and supersedes any prior understandings or agreements
(including without limitation oral agreements) concerning the registration
rights described herein.
12. Headings. The headings of the various sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed to be
part of this Agreement.
13. Transfer of Rights. All covenants and agreements contained in this
Agreement by or on behalf of the parties hereto shall bind and inure to
the benefit of the respective successors and assigns of the parties hereto
(including without limitation transferees of any Shares), whether so
expressed or not; provided, however, that rights conferred to the
Purchaser may be transferred to a transferee of Shares only if the Company
has been given written notice thereof, such transfer complies with the
requirements of applicable law, rules and regulations of the SEC, such
transferee agrees to be bound by all of the provisions of this Agreement
applicable to Purchaser or an Investor and such transferee is a recipient
of Shares from a holder of Registrable Securities representing at least
ten percent (10%) of the Shares issued pursuant to the Purchase Agreement
in the aggregate.
14. Independent Nature of Investor's Obligations and Rights. The obligations
of each Investor under this Agreement are several and not joint with the
obligations of any other Investor, and no Investor shall be responsible in
any way for the performance of the obligations of any other Investor under
this Agreement. Nothing contained herein or in any other document, and no
action taken by any Investor pursuant thereto, shall be deemed to
constitute the Investors as a partnership, an association, a joint venture
or any other kind of entity, or create a presumption that the Investors
are in any way acting in concert or as a group with respect to such
obligations or the transactions contemplated by this Agreement. Each
Investor shall be entitled to independently protect and enforce its
rights, including without limitation, the rights arising out of this
Agreement or out of the other related documents, and it shall not be
necessary for any other Investor to be joined as an additional party in
any proceeding for such purpose.
15. Counterparts. This Agreement and any modification, waiver or amendment to
this Agreement may be executed in two or more counterparts, each of which
shall constitute an original, but all of which, when taken together, shall
constitute but one instrument, and shall become effective when one or more
counterparts have been signed by each party hereto and delivered to the
other parties.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
NOVAGOLD RESOURCES INC.
By: _____________________________________________
Name: Xxxxxx X. (Don) XxxXxxxxx
Title: Senior Vice President and Chief Financial Officer
ELECTRUM STRATEGIC RESOURCES LLC
By: _____________________________________________
Name:
Title:
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