Exhibit 4.13
APOLLO GOLD CORPORATION
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "AGREEMENT") is made as of
September 26, 2003, between Apollo Gold Corporation (the "COMPANY") and BMO
Xxxxxxx Xxxxx Inc. ("BMO"), acting on behalf of and for the benefit of each of
the Holders. Certain capitalized terms used in this Agreement without definition
shall have the meanings given them in Section 8 hereof.
PREAMBLE
A. The Holders are acquiring shares of common stock (the "SHARES")
pursuant to a private placement of common stock initiated by the Company
pursuant to Subscription Agreements executed by the Holders (the "SUBSCRIPTION
AGREEMENTS"), dated as of the date hereof, between the Company and each of the
Holders.
B. In connection with the purchase and sale of the Shares, the Company
and BMO, for the benefit of the Holders, desire to enter into this Agreement in
order to set forth the rights of the Holders to register the Shares with the
Securities and Exchange Commission (the "COMMISSION") and certain other matters
as set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual agreements set forth herein,
the Company and BMO, acting on behalf of and for the benefit of the Holders,
hereby agree as follows:
1. Demand Registration
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1.1 Notice of Registration. At any time during the period (a)
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beginning on the Closing Date, and (b) ending on the second anniversary of the
Closing Date, Holders representing at least 30% of the shares of Common Stock or
BMO for and on behalf of the Holders may demand that a registration statement be
filed with the Commission within 10 days after the date on which the Company has
received such request in writing. Subject to the terms and conditions set forth
below in this Section 1 and Section 3, upon the Company's receipt from the
requisite number of Holders or BMO of a written request that the Company effect
a registration under the Securities Act with respect to its Registrable
Securities, the Company will, as expeditiously as possible, notify the Holders
and BMO in writing of such request and use its diligent best efforts to effect
all such registrations (including, without limitation, the execution of an
undertaking to file post-effective amendments and appropriate qualifications and
approvals under the laws and regulations of any applicable governmental agencies
and authorities, including applicable blue sky or other state securities laws
that are applicable to the Company) as may be so requested and as would permit
or facilitate the sale and distribution of all or such portion of the
Registrable Securities as are specified in such request, provided, (a) that
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before filing any such registration statement or any amendments or supplements
thereto, the Company
will, at the request of the Holders of Registrable Securities or BMO, (i)
furnish to the Holders of Registrable Securities which are to be included in
such registration and BMO copies of all such documents proposed to be filed,
which documents will be subject to the review of the Holders and their counsel,
and (ii) give the Holders of Registrable Securities to be included in such
registration statement, BMO and their representatives the opportunity to conduct
a reasonable investigation of the records and business of the Company and to
participate in the preparation of any such registration statement or any
amendments or supplements thereto; and (b) the Company shall not be obligated to
take any action to effect such registration pursuant to this Section 1.1 after
the Company has effected two such registrations pursuant to this Section 1.1 at
the request of the Holders; provided, that such registration has been declared
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or ordered effective by the Commission and, if the method of distribution is a
registered public offering involving an underwritten offering, all such shares
registered thereby shall have been sold pursuant thereto.
1.2 Registration Statement. Subject to Section 1.1 above and the
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other terms and conditions contained herein, the Company shall file a
registration statement covering the Registrable Securities so requested to be
registered as soon as practical, but in any event within 10 days after receipt
of the request of the Holders or BMO; provided, that if the Company shall
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furnish to the Holders and BMO a certificate signed by the President of the
Company stating that in the good faith judgment and upon the consent of a
majority of the Board of Directors it would require the disclosure of material
non-public information about the Company, the disclosure of which could be
seriously detrimental to the business or financial condition of the Company or
to negotiations in which it is engaged for such registration statement to be
filed at the date filing would be required under Section 1.1 and it is therefore
desirable to defer the filing of such registration statement, in which case the
Company shall have a single additional period of not more than 60 days within
which to file such registration statement; provided further, that if the
registration statement is not filed within 10 days after receipt of the request
of the Holders or BMO due to any unforeseen delay not caused by the Company,
then such delay shall not constitute a breach or default under this Agreement.
1.3 Registered Public Offering Involving an Underwriting. If the
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Holders or BMO intend to distribute the Registrable Securities covered by their
request under Section 1.1 by means of an underwriting, they shall so advise the
Company as a part of their request made pursuant to Section 1.1. In such event,
the Holders shall negotiate in good faith with an underwriter or underwriters
selected by the Holders or BMO acting on behalf of and for the benefit of the
Holders with regard to the underwriting of such requested registration. The
Company shall (together with all Holders proposing to distribute their
securities through such underwriting) enter into an underwriting agreement in
customary form with the underwriter or underwriters selected pursuant to this
Section 1.3. Notwithstanding any other provision of this Section 1.3, if the
underwriter determines that marketing factors require a limitation on the number
of shares to be underwritten, the underwriter may (subject to the allocation
priority set forth below) limit the number of Registrable Securities to be
included in the registration and underwriting. The Company shall so advise BMO
and all Holders, and the number of shares of securities that are entitled to be
included in the registration and underwriting shall be allocated among all
Holders, and any reduction among such Holders shall be pro rata among all such
persons and, for purposes of making any such reduction, each Holder which is a
partnership, together with the affiliates, partners, employees, retired partners
and retired employees of such Holder, the estates and family members of any such
partners, employees, retired partners and retired employees and of their
spouses, and any trusts for the benefit of any of the foregoing persons shall be
deemed to be a single "person," and any pro rata reduction with respect to such
"person" shall be based upon the aggregate number of Registrable Securities
owned by all entities and individuals included as such "person", as defined in
this sentence (and the aggregate number so allocated to such "person" shall be
allocated among the entities and individuals included in such "person" in such
manner as such Holder may reasonably determine). To facilitate the allocation
of shares in accordance with the above provisions, the underwriter or
underwriters may round the number of shares allocated to the Holders to the
nearest one hundred shares. If any Holder of Registrable Securities disapproves
of the terms of the underwriting, it may elect to withdraw therefrom by written
notice to the Company, the underwriter and the other Holders. In the event of
any such withdrawal, the Company will include in any such registration in lieu
thereof any additional shares of Registrable Securities which were requested to
be included by a Holder and which were excluded pursuant to the above-described
underwriter limitation up to the maximum set by such underwriter.
2. Expenses of Registration. The Company will bear all reasonable
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expenses incurred in connection with registrations pursuant to Section 1,
including without limitation all registration, filing and qualification fees,
printing expenses, fees and disbursements of counsel for the Company and the
Representative (as defined below) and expenses of any special audits of the
Company's financial statements incidental to or required by such registration,
fees of the National Association of Securities Dealers, Inc., transfer taxes,
fees of transfer agents and registrars' fees, but the Company will not pay
underwriters' fees, discounts or commissions relating to the Registrable
Securities.
3. Registration Procedures. If and whenever the Company is required by
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the provisions of Section 1 to use its best efforts to effect the registration
of any Registrable Securities under the Securities Act, the Company will, as
expeditiously as possible:
3.1 furnish to a single representative of the Holders, who shall
initially be BMO or such other person or entity as the Company is instructed by
BMO acting on behalf of and for the benefit of a majority of the Holders, or
directly by a majority of the Holders in writing (the "REPRESENTATIVE") and to
each managing underwriter, if any, a reasonable time in advance of their filing
with the Commission any registration statement, amendment or supplement thereto,
and any prospectus used in connection therewith, and the Representative shall
have the opportunity to object to any material information pertaining to it, the
Holders and its plan of distribution that is contained therein and the Company
will make the corrections reasonably required by such Representative or Holder
with respect to such information prior to filing any such registration statement
or any amendment or supplement thereto, and if requested in writing by the
Representative, and furnish a copy of any and all transmittal letters or other
correspondence with the Commission or any other governmental agency or
self-regulatory body or other body having jurisdiction (including any domestic
or foreign securities exchange) relating to such offering;
3.2 prepare and file with the Commission a registration statement
(which shall be on a registration statement form which is sufficient to permit
the sale or other disposition of any or all shares of Common Stock to be
included therein in accordance with the intended method of sale or other
distribution stated by the initiating Holders, including a "shelf"
registration statement under Rule 415 under the Securities Act or any successor
provision) with respect to such securities and use its best efforts to cause
such registration statement to become effective as soon as practicable and to
remain effective for the period of the distribution contemplated thereby
(determined as hereinafter provided);
3.3 furnish to each Holder of Registrable Securities, BMO and to
each underwriter, if any such number of copies of the registration statements,
each amendment and supplement thereto (and, if requested in writing, all
exhibits thereto and documents incorporated by reference therein) and the
prospectus included therein (including each preliminary prospectus and
prospectus) and any other prospectus filed under Rule 424 promulgated under the
Securities Act relating to the Registrable Securities and such other documents
as such persons reasonably may request in order to facilitate the public sale or
other disposition of the Registrable Securities covered by such registration
statement;
3.4 after the filing of the registration statement, on the day of
receipt of knowledge thereof notify each Holder of Registrable Securities, BMO
and each managing underwriter, if any, of any stop order issued or, to the
knowledge of the Company, threatened to be issued by the Commission and promptly
take all reasonably necessary actions to prevent the entry of such stop order or
to remove it if entered;
3.5 use its commercially reasonable best efforts to register or
qualify the Registrable Securities covered by such registration statement under
the securities or "blue sky" laws of any state as the sellers of Registrable
Securities, or, in the case of an underwritten public offering, the managing
underwriter or underwriters reasonably shall request, and use its commercially
reasonable best efforts to obtain all appropriate registrations, permits and
consents required in connection therewith, and to keep such registrations,
qualifications, permits and consents in effect for so long as such registration
statement remains in effect and to take any other action which may be reasonably
necessary to enable a seller of Registrable Securities to consummate the
disposition in such jurisdictions of such securities; provided, however, that
the Company shall not for any such purpose be required to qualify generally to
transact business as a foreign corporation in any jurisdiction where it is not
so qualified or to consent to general service of process in any such
jurisdiction;
3.6 use its commercially reasonable best efforts to list the
Registrable Securities covered by such registration statement with the American
Stock Exchange;
3.7 furnish, in a timely fashion, unlegended certificates (to the
extent permitted by the securities laws) representing ownership of the
Registrable Securities being sold in such denominations as shall be requested by
the Representative, the Holders of Registrable Securities or the managing
underwriter or underwriters, if any;
3.8 on the day of receipt of knowledge thereof, inform BMO, each
Holder of Registrable Securities and the managing underwriter or underwriters,
if any, (i) of the date on which a registration statement or any post-effective
amendment thereto has been filed and when the same has become effective and, if
applicable, of the date of filing a Rule 430A prospectus, or (ii) of the receipt
by the Company of any notification with respect to the suspension of the
qualification of any Registrable Securities for sale under the applicable
securities or blue sky
laws of any jurisdiction and as soon as practicable after receipt of knowledge
thereof inform each seller and the managing underwriter or underwriters, if any,
of any written comments from the Commission with respect to any filing referred
to in clause (i) and of any request by the Commission, any securities exchange,
government agency, self-regulatory body or other body having jurisdiction for
any amendment of or supplement to any registration statement or preliminary
prospectus or prospectus included therein or any offering memorandum or other
offering document relating to such offering;
3.9 on the day of receipt of knowledge thereof notify the
Representative, BMO and each underwriter under such registration statement, at
any time when a prospectus relating thereto is required by law to be delivered
in connection with sales by an underwriter or dealer, of the occurrence of an
event requiring the preparation of a supplement or amendment to such prospectus
so that, as thereafter delivered to the purchasers of such Registrable
Securities such prospectus will not contain an untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and as promptly as practicable make
available to each seller of Registrable Securities and to each managing
underwriter, if any, any such supplement or amendment. In the event the Company
shall give such notice, the Company shall extend the period during which such
registration statement shall be maintained effective as provided in Section 3(b)
hereof by the number of days during the period from and including the date of
the giving of such notice to the date when the Company shall make available to
such sellers such supplemented or amended prospectus;
3.10 upon written request, make available for inspection by each
seller of Registrable Securities, any underwriter participating in any
distribution pursuant to such registration statement, and any attorney,
accountant or other agent retained by such seller or underwriter, financial and
other records, pertinent corporate documents and properties of the Company, and
cause the Company's officers, directors and employees to supply information
reasonably requested by such seller, underwriter, attorney, accountant or agent
in connection with such registration statement;
3.11 enter into customary agreements (including an underwriting
agreement in customary form) and take such other actions as are reasonably
required in order to expedite or facilitate the sale of such securities,
including having one of its senior executives appear at no more than two
"roadshow" meetings to be held in New York City;
3.12 provide a transfer agent and registrar, and a CUSIP number,
for all Registrable Securities covered by such registration statement not later
than the effective date of such registration statement; and
3.13 provide signed counterparts, addressed to BMO, the
underwriter or underwriters, if any, and to each Holder, of an opinion of the
Company's counsel and a "cold comfort" letter of the Company's independent
certified public accountants with respect to the matters customarily covered in
such documents delivered to underwriters in underwritten public offerings.
In connection with each registration hereunder, the Holders of Registrable
Securities will furnish to the Company in writing such information with respect
to themselves and the proposed distribution by them as reasonably shall be
necessary in order to assure compliance with federal and applicable state
securities laws.
In connection with each registration pursuant to Section 1 covering an
underwritten public offering, the Company and each Holder agrees to enter into a
written agreement with the managing underwriter selected in the manner herein
provided in such form and containing such provisions as are customary in the
securities business for such an arrangement between such underwriter and
companies of the Company's size and investment stature.
For purposes of Section 3(b) hereof, the period of distribution of
Registrable Securities in a firm commitment underwritten public offering shall
be deemed to extend until the earlier of the sale of all Registrable Securities
covered thereby or twelve months after the effective date thereof, and the
period of distribution of Registrable Securities in any other registration shall
be deemed to extend until the earlier of the sale of all Registrable Securities
covered thereby or nine months after the effective date thereof.
4. Indemnification.
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4.1 Indemnity by the Company. If the Company registers any
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Registrable Securities held by a Holder under the Securities Act pursuant to
Section 1, the Company will indemnify and hold harmless BMO and its affiliates,
the Holder, and each other person, if any, who controls the Holder, and each
underwriter, if any, and each person who controls any underwriter within the
meaning of Section 15 of the Securities Act, against any losses, claims, damages
or liabilities, joint or several, to which BMO and its affiliates, the Holder,
the underwriter, if any, or such controlling persons may become subject under
the Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any registration statement under which such Registrable Securities were
registered under the Securities Act, any preliminary prospectus or final
prospectus contained therein, or any amendment or supplement thereof, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or any violation by the Company of any rule or
regulation promulgated under the Securities Act or any state securities law
applicable to the Company and relating to action or inaction required of the
Company in connection with any such registration, and will reimburse BMO and its
affiliates, the Holder and the underwriter, their respective officers, directors
and partners, and each person controlling the Holder and the underwriter, for
any reasonable legal and any other expenses incurred in connection with
investigating, defending or settling any such claim, loss, damage, liability or
action, provided that the Company will not be liable in any such case to the
extent that any such claim, loss, damage or liability arises out of or is based
on any untrue statement or omission based upon written information furnished to
the Company by BMO and its affiliates, the Holder or the underwriter
specifically for use therein.
4.2 Indemnity by the Holder. Each Holder will, if Registrable
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Securities held by or issuable to the Holder are included in the securities as
to which such registration is being
effected, indemnify and hold harmless the Company, each of its directors, each
officer who signs the registration statement, each underwriter, if any, of the
Company's securities covered by such a registration statement, each person who
controls the Company and each underwriter within the meaning of the Securities
Act, against all claims, losses, expenses, damages and liabilities (or actions
in respect thereof) arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any such registration
statement, prospectus, offering circular or other document made in writing by
the Holder, or any omission (or alleged omission) by the Holder to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse the Company, such
directors, officers, partners, persons or underwriters for any reasonable legal
or any other expenses incurred by them in connection with investigating,
defending or settling any such claim, loss, damage, liability or action, in each
case to the extent, but only to the extent, that such untrue statement (or
alleged untrue statement) or omission (or alleged omission) is made in such
registration statement, prospectus, offering circular or other document in
reliance upon and in conformity with written information furnished to the
Company by the Holder specifically for use therein; provided, that the total
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amount for which the Holder, its officers, directors and partners, and any
person controlling the Holder, shall be liable under this Section 4.2 shall not
in any event exceed the proceeds (net of underwriting discounts and commissions)
received by the Holder from the sale of Registrable Securities sold by the
Holder in such registration.
4.3 Notice by the Indemnified Party. Each party entitled to
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indemnification under this Section 4 (the "INDEMNIFIED PARTY") shall give notice
to the party required to provide indemnification (the "INDEMNIFYING PARTY")
promptly after such Indemnified Party has actual knowledge of any claims as to
which indemnity may be sought, and shall permit the Indemnifying Party to assume
the defense of any such claim or any litigation resulting therefrom, provided
that counsel for the Indemnifying Party, who shall conduct the defense of such
claim or litigation, shall be approved by the Indemnified Party (whose approval
shall not be unreasonably withheld), and the Indemnified Party may participate
in such defense at such party's expense, and provided further that the failure
of any Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations hereunder, unless such failure resulted in
actual detriment to the Indemnifying Party. Each Indemnified Party shall
furnish such information regarding itself or the claim in question as an
Indemnifying Party may reasonably request and as shall be reasonably required in
connection with defense of such claim and litigation resulting therefrom. An
Indemnified Party shall have the right to retain its own counsel, with the
reasonable fees and expenses to be paid by the Indemnifying Party, if
representation of such Indemnified Party by the counsel retained by the
Indemnifying Party would be inappropriate due to actual or potential differing
interests between such Indemnified Party and any other party represented by such
counsel in such proceeding, provided that in no event shall the Indemnifying
Party be required to pay the fees and expenses of more than one such separate
counsel for all Indemnified Parties. No Indemnifying Party, in the defense of
any such claim or litigation, shall, except with the consent of each Indemnified
Party, consent to entry of any judgment or enter into any settlement which does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect
of such claim or litigation.
4.4 Contribution. If the indemnification provided for in this
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Section is held by a court of competent jurisdiction to be unavailable to an
Indemnified Party with respect to any
loss, liability, claim, damage or expense referred to therein, then the
Indemnifying Party, in lieu of indemnifying such Indemnified Party thereunder,
shall contribute to the amount paid or payable by such Indemnified Party as a
result of such loss, liability, claim, damage or expense in such proportion as
is appropriate to reflect the relative fault of the Indemnifying Party on the
one hand and of the Indemnified Party on the other hand in connection with the
statements or omissions which resulted in such loss, liability, claim, damage or
expense as well as any other relevant equitable considerations. The relevant
fault of the Indemnifying Party and the Indemnified Party shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission to state a material fact relates to
information supplied by the Indemnifying Party or by the Indemnified Party and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. Notwithstanding the foregoing,
the amount that the Holder shall be obligated to contribute pursuant to this
Section 4.4 shall be limited to an amount equal to the proceeds to the Holder of
the Registrable Securities sold pursuant to the registration statement which
gives rise to such obligation to contribute (less the aggregate amount of any
damages which the Holder has otherwise been required to pay in respect of such
loss, claim, damage, liability or action or any substantially similar loss,
claim, damage, liability or action arising from the sale of such Registrable
Securities).
4.5 Survival of Indemnity. The indemnification and contribution
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provided by this Section shall be a continuing right to indemnification and
shall survive the registration and sale of any securities by any person entitled
to indemnification under this Agreement for a period of one year.
5. Holders' Cooperation.
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5.1 Information Regarding Holders. Each Holder shall promptly
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furnish to the Company such information regarding the Holder and the
distribution proposed by the Holder as the Company may request in writing and as
shall be required in connection with any registration referred to herein.
5.2 Obligations of the Holders. The Holders will not (until
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further notice by the Company) effect sales thereof (or deliver a prospectus to
any purchaser) after receipt of telegraphic or written notice from the Company
to suspend sales to permit the Company to correct or update a registration
statement or prospectus. At the end of the period during which the Company is
obligated to keep any registration statement filed under Section 1 current and
effective as required by applicable law, the Holders shall discontinue sales of
shares pursuant to such registration statement upon receipt of notice from the
Company of its intention to remove from registration the shares of Registrable
Securities covered by such registration statement that remain unsold, and the
Holders shall notify the Company of the number of such shares registered that
remain unsold immediately upon receipt of such notice from the Company.
6. Rule 144. With a view to making available to the Holders the
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benefits of certain rules and regulations of the Commission which may permit the
sale of the Restricted Securities to the public without registration, beginning
on the Closing Date, the Company agrees to:
6.1 make and keep public information available, as those terms are
understood and defined in Rule 144; and
6.2 use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act.
7. Representations and Warranties of the Company. The Company
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represents and warrants to the Holders as follows:
7.1 The execution, delivery and performance of this Agreement by
the Company have been duly authorized by all requisite corporate action and will
not violate any provision of law, any order of any court or other agency of
government, the articles of incorporation or bylaws of the Company or any
provision of any indenture, agreement or other instrument to which it or any of
its properties or assets is bound, conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any such
indenture, agreement or other instrument or result in the creation or imposition
of any lien, charge or encumbrance of any nature whatsoever upon any of the
properties or assets of the Company.
7.2 This Agreement has been duly executed and delivered by the
Company and constitutes the legal, valid and binding obligation of the Company,
enforceable in accordance with its terms, subject to (i) applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance and moratorium laws and other
laws of general application affecting enforcement of creditors' rights generally
and (ii) the availability of equitable remedies as such remedies may be limited
by equitable principles of general applicability (regardless of whether
enforcement is sought in a proceeding in equity or at law).
8. Definitions. As used in this Agreement, the following terms shall
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have the following meanings:
8.1 "AFFILIATE" shall have the meaning given to it under Rule 405
of the Securities Act.
8.2 "BUSINESS DAY" means a day, other than Saturdays, Sundays and
statutory holidays, when the banks conducting business in the City of Toronto
are generally open for the transaction of banking business.
8.3 "CLOSING DATE" shall mean September 26, 2003 or such other
date(s) as may be agreed upon by BMO and the Company.
8.4 "COMMISSION" shall mean the U.S. Securities and Exchange
Commission, or any other federal agency at the time administering the Securities
Act.
8.5 "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
as amended, or any similar United States statute and the rules and regulations
thereunder, all as the same shall be in effect at the time.
8.6 "HOLDER" or "HOLDERS" shall mean each of the Participants (as
defined in the Subscription Agreements) or an individual Participant (as defined
in the Subscription Agreements), as the case may be, and, if applicable, any
other person who holds Restricted Securities.
8.7 "REGISTER," "REGISTERED" and "REGISTRATION" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement, and compliance with applicable
state securities laws of such states in which the Holder notifies the Company of
its intention to offer Registrable Securities.
8.8 "REGISTRABLE SECURITIES" shall mean the Shares and any
securities received as a result of the ownership of the Shares including from
stock splits, stock dividends or recapitalizations; provided, however, that
Registrable Securities shall only be treated as Registrable Securities if and so
long as, they have not been (A) sold to or through a broker or dealer or
underwriter in a United States public distribution or a United States public
securities transaction or (B) sold in a transaction exempt from the registration
and prospectus delivery requirements of the Securities Act so that all U.S.
transfer restrictions and restrictive legends with respect thereto are removed
upon the consummation of such sale.
8.9 "RESTRICTED SECURITIES" shall mean the Shares, only to the
extent the same have not been sold to the public in the United States. As to
any particular Restricted Securities, such securities shall cease to be
Restricted Securities when (i) a registration statement with respect to the sale
of such securities shall have become effective under the Securities Act and such
securities shall have been disposed of under such registration statement, (ii)
such securities shall have become eligible for resale pursuant to Rule 144(k)
and any restrictive legend on certificates representing such securities shall
have been removed, (iii) such securities shall have been otherwise transferred
or disposed of, and subsequent transfer or disposition of them shall not require
their registration or qualification under the Securities Act or any similar
state law then in force or compliance with Rule 144, or (iv) such securities
shall have ceased to be outstanding.
8.10 "RULE 144" shall mean Rule 144 under the Securities Act or
any successor or similar rule as may be enacted by the Commission from time to
time.
8.11 "SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, or any similar United States statute and the rules and regulations
thereunder, all as the same shall be in effect at the time.
9. Miscellaneous.
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9.1 Amendments. This Agreement may be amended only by a written
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instrument executed by (a) the holders of a majority of the Registrable
Securities or by BMO acting on behalf of and for the benefit of the Holders and
(b) the Company.
9.2 Counterparts. This Agreement may be executed in any number of
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counterparts, all of which shall constitute a single instrument.
9.3 Notices. Any notice, demand, request, waiver or other
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communication required or permitted to be given hereunder shall be in writing
and shall be deemed to be delivered when received by certified mail, postage
prepaid, return receipt requested, when delivered by an expedited delivery
service or when sent by facsimile or e-mail after confirmation. All notices
shall be directed to the parties at the respective addresses set forth below or
to such other address as either party may, from time to time, designate by
notice to the other party:
If to the Company: 0000 XXX Xxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx, 00000
Attn: Chief Financial Officer
Tel: (000) 000-0000
Fax: (000) 000-0000
With copies to: Fogler, Xxxxxxxx LLP
Royal Trust Tower, TD Centre
00 Xxxx Xx. X., #0000
Xxxxxxx, XX X0X 0X0
Attn: Xxxxxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Silicon Valley Law Group
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
If to Investors: BMO Xxxxxxx Xxxxx Inc.
Investment and Corporate Banking
1 First Canadian Place
4th Floor, P.O. Box 150
Toronto, ON M5X 1H3
Attn: Xxxxxx Xxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
With copies to: White & Case LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
9.4 Assignability. This Agreement and all of the provisions
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hereof shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns. Neither this Agreement nor
any rights, duties or obligations hereunder shall be assigned by any party
hereto without the prior written consent of the other parties hereto, except
that vested rights to receive payment or to initiate legal action with respect
to causes of action that have accrued hereunder shall be assignable by devise,
descent or operation of law.
9.5 Severability. If any provision of this Agreement shall be
------------
held to be illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other provision of this
Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
9.6 Governing Law; Venue.
----------------------
(a) This Agreement shall be governed by and construed
under the laws of the State of New York without regard to principles of conflict
of law. Each of the parties hereby (i) irrevocably consents and agrees that any
legal or equitable action or proceeding arising under or in connection with this
Agreement shall be brought exclusively in the Federal or state courts sitting in
New York, New York, and any court to which an appeal may be taken in any such
litigation, and (ii) by execution and delivery of this Agreement, irrevocably
submits to and accepts, with respect to any such action or proceeding,
for itself and in respect of its properties and assets, generally and
unconditionally, the jurisdiction of the aforesaid courts, and irrevocably
waives any and all rights such party may now or hereafter have to object to such
jurisdiction.
(b) Each of the Company and the other parties hereto
waives its right to a jury trial with respect to any action or claim arising out
of any dispute in connection with this agreement, any rights or obligations
hereunder or the performance of such rights and obligations. Each of the
Company and the other parties hereto (i) certifies that no representative, agent
or attorney of any party hereto has represented, expressly or otherwise, that
such party would not, in the event of litigation, seek to enforce the foregoing
waivers and (ii) acknowledges that the parties hereto have been induced to enter
into this Agreement by, among other things, the waivers and certifications
contained herein.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
THE COMPANY:
APOLLO GOLD CORPORATION
By: /s/ R. Xxxxx Xxxxxxx
---------------------------------
R. Xxxxx Xxxxxxx, President and
Chief Executive Officer
THE HOLDERS:
By: BMO XXXXXXX XXXXX INC.
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxxx
-------------------------------
Title: Manager Director
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