SHARE SUBSCRIPTION AGREEMENT
----------------------------
THIS AGREEMENT made as of the 28/th/ day of December, 2000
BETWEEN
GOLDEN STAR RESOURCES LTD. a company incorporated under the laws of
--------------------------
Canada with an office at 0000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000
("GSR")
AND:
RIO TINTO MINING AND EXPLORATION LIMITED, a company registered in
-------------------------------------------
England, whose registered address is 0 Xx. Xxxxx'x Xxxxxx, Xxxxxx,
XX0X 0XX
("RTME")
WITNESSES that, in consideration of the covenants and agreements herein
contained, the parties hereto agree as follows:
1. DEFINITIONS AND INTERPRETATION
1.1. Definitions
-----------
Where used in this Agreement, the following terms have the meanings
ascribed to them as follows:
1.1.1. "Affiliate" means any corporation which directly or indirectly
controls, is controlled by, or is under common control with, a
party. For purposes of the preceding sentence, "control" means the
right to the exercise of more than 50% of the voting rights
attributable to the shares of the controlled corporation. In the
case of RTME, an Affiliate shall include any corporation, wherever
situate, in which Rio Tinto PLC or Rio Tinto Limited owns or
controls directly or indirectly such voting rights;
1.1.2. "Closing" means the closing of the transactions contemplated in
subsection 9.1;
1.1.3. "Closing Date" means January 18, 2001 or such date not later than
February 22, 2001 as shall be specified by GSR on not less than
three days' notice.
1.1.4. "Guyanor" means Guyanor Resources S.A., a French Guianan corporate
entity of Lotissement Calimbe II, Route du Tigre, 97337 Cayenne,
French Guiana;
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1.1.5. "Heads of Agreement" means the agreement dated December 28, 2000
among Guyanor, SOTRAPMAG and RTME, a copy of which is attached as
Schedule A;
1.1.6. "Project" means the Xxxx Xxxxxx Property in French Guiana that is
described in Schedule 1-A to the Heads of Agreement and defined
therein as the "Property";
1.1.7. "Securities Commissions" means the Securities Commissions or
similar regulatory authorities appointed under the Securities
Laws;
1.1.8. "Securities Laws" means the securities laws of the Provinces of
British Columbia, Alberta, Saskatchewan, Manitoba, Ontario,
Quebec, New Brunswick, Nova Scotia, Xxxxxx Xxxxxx Island and
Newfoundland including the requirements and provisions of the
Securities Act of each such province and the regulations and
rules thereunder and all policy statements, blanket orders and
interpretation notes adopted or applied by the Securities
Commission of each such province;
1.1.9. "Shares" means common shares without par value in the capital of
GSR as constituted at the date hereof;
1.1.10. "SOTRAPMAG" means Societe de Travaux Publics et de Mines
Auriferes en Guyane SARL a French Guianan corporate entity of
Lotissement Calimbe II, Route du Tigre, 97337 Cayenne, French
Guiana;
1.1.11. "$" means United States dollars.
1.2. Interpretation
--------------
1.2.1. Wherever any provision of any Schedule to this Agreement
conflicts with any provision in the body of this Agreement, the
provisions of the body of this Agreement shall prevail.
References herein to a particular Schedule shall mean a reference
to such Schedule to this Agreement.
1.2.2. References herein to a section, subsection, paragraph or
subparagraph shall mean a reference to such section, subsection,
paragraph or subparagraph, as the case may be, within the body of
this Agreement.
1.2.3. The headings of sections and subsections herein and in the
Schedules are inserted for convenience of reference only and
shall not affect or be considered to affect the construction of
the provisions hereof.
1.2.4. In this Agreement, unless the context otherwise requires, words
importing the singular number only shall include the plural and
vice versa, words importing persons shall include individuals,
corporations, partnerships, associations, trusts and
unincorporated organizations and vice versa and words importing
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the masculine gender shall include the feminine and neuter
genders and vice versa.
1.3. Schedules
---------
Attached to and forming part of this Agreement are the following
Schedules:
Schedule A - Heads of Agreement
Schedule B - U.S. Securities Laws Representations and Warranties
2. PURCHASE AND SALE OF SHARES
---------------------------
2.1. Upon and subject to the terms and conditions set out in this Agreement,
RTME hereby subscribes for and agrees to purchase from GSR, and GSR hereby
agrees to allot, issue and sell to RTME or order 500,000 Shares (the
"Subscribed Shares") for an aggregate purchase price of $1,000,000 (the
"Proceeds").
2.2. RTME hereby directs GSR to allot and issue the Subscribed Shares to, and
issue the certificate for the Subscribed Shares in the name of, Kennecott
Canada Exploration Inc. ("KCEI"), a Canadian corporation with its head
office at Xxxxx 000, 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx,
X0X 0X0.
3. REPRESENTATIONS AND WARRANTIES OF GSR
-------------------------------------
3.1. GSR hereby represents and warrants to RTME as follows (and acknowledges
that RTME is relying on such representations and warranties in entering
into this Agreement):
3.1.1. GSR is a company duly organized, existing and in good standing
under the laws of Canada and has all necessary corporate power and
capacity to enter into this Agreement and to carry out the
transactions contemplated hereby;
3.1.2. the execution and delivery of this Agreement and the performance
of the terms hereof by GSR will have been duly authorized by all
necessary corporate proceedings at the Closing and, upon the
execution hereof, this Agreement will constitute a legal, valid
and binding agreement enforceable against GSR in accordance with
its terms, except to the extent that enforcement may be limited by
laws of general application affecting the enforcement of
creditors' rights and that certain remedies are discretionary in
nature and may not be available in all circumstances;
3.1.3. Each of GSR, Guyanor and SOTRAPMAG has all necessary corporate
power and capacity to own its respective properties and assets,
including, without limitation, the properties comprised in the
Project, and to carry on its business as now conducted by it and
is registered as required and in good standing under the laws of
all jurisdictions in which such business is carried on and in
which such property and assets are located;
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3.1.4. GSR is a reporting issuer under the Securities Laws and is not in
default of any of the requirements thereof;
3.1.5. the authorized capital of GSR consists of an unlimited number of
Shares of which 37,588,988 Shares are validly issued and
outstanding as fully paid and non-assessable shares in the capital
of GSR as at the date hereof;
3.1.6. the Subscribed Shares will be, upon their issuance, duly
authorized and validly allotted and issued as fully paid and non-
assessable shares in the capital of GSR, free and clear of any and
all mortgages, liens, pledges, charges and other encumbrances and
listed for trading on The Toronto Stock Exchange; and
3.1.7. the representations and warranties in section 9.1 of the Heads of
Agreement are true and correct.
4. REPRESENTATIONS, WARRANTIES
AND ACKNOWLEDGEMENTS OF RTME
----------------------------
4.1. RTME hereby represents and warrants to GSR as follows (and acknowledges
that GSR is relying on such representations and warranties in entering
into this Agreement):
4.1.1. it is duly organized, existing and in good standing under the laws
of its jurisdiction of incorporation and has all necessary
corporate power and capacity to enter into this Agreement and to
carry out the transactions contemplated hereby; and
4.1.2. KCEI is purchasing the Subscribed Shares being purchased by it
hereunder as principal for its own account.
4.2. RTME on behalf of itself and KCEI hereby acknowledges to and in favour of
GSR as follows:
4.2.1. the Subscribed Shares being purchased hereunder are not being
purchased as a result of any material information concerning GSR
that has not been publicly disclosed and the decision to purchase
such Subscribed Shares has not been made as a result of any verbal
or written representation as to fact or otherwise made by or on
behalf of GSR or any other person other than as set out in this
Agreement and is based entirely upon currently available public
information concerning GSR; and
4.2.2. no person has made to it any written or oral representations:
4.2.2.1. that any person will resell or repurchase the Subscribed
Shares being purchased by it hereunder;
4.2.2.2. that any person will refund the purchase price of such
securities;
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4.2.2.3. as to the future price or value of such securities; or
4.2.2.4. that any of such securities will be listed and posted for
trading on a stock exchange other than The Toronto Stock
Exchange.
4.2.3. KCEI is purchasing the Subscribed Shares as principal for its own
ccount and not for the benefit of any other person;
4.2.4. RTME is not a resident of any province of Canada or of the United
States;
4.2.5. KCEI is only a resident of the province of British Columbia;
4.2.6. KCEI is purchasing a sufficient number of Subscribed Shares so that the
aggregate acquisition cost (the "Minimum Cost") to KCEI of the
Subscribed Shares is not less than the amount of the Proceeds;
4.2.7. neither RTME nor KCEI has been formed solely to permit the purchase of
securities without a prospectus by groups of individuals whose
individual share of the aggregate acquisition cost is less than the
Minimum Cost;
4.2.8. the purchase of the Subscribed Shares, as distinct from the issue or
sale thereof, does not contravene any of the applicable securities
legislation in any jurisdiction in which either of RTME or KCEI are
resident and does not trigger any obligation to prepare and file a
prospectus or similar document, or any other report with respect to
such purchase;
4.2.9. the decision of RTME to enter into this Agreement and for KCEI to
purchase the Subscribed Shares has not been made upon any verbal or
written representation as to fact or otherwise made by or on behalf of
GSR or any other person associated therewith, other than as set forth
herein. RTME and KCEI have not received or reviewed any material which
appears or purports to describe the business and affairs of GSR and
which was prepared primarily for delivery to and review by prospective
investors in connection with the offering of the Subscribed Shares;
4.2.10. RTME and KCEI have such knowledge in financial and business affairs as
to be capable of evaluating the merits and risks of their investment
and are able to bear the economic risk of loss of their investment;
4.2.11. the addresses set forth in this Agreement are the true and correct
addresses of a place of business of RTME and KCEI;
4.2.12. upon acceptance by GSR, this subscription will constitute a valid and
legally binding contract of RTME enforceable against RTME in accordance
with its terms;
4.1.14 RTME acknowledges and agrees that the foregoing representations and
warranties are made with the intention that they may be relied upon in
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determining eligibility to purchase the Subscribed Shares under
relevant securities legislation. GSR and its counsel shall be
entitled to rely on the foregoing representations and warranties
and RTME shall indemnify and hold harmless each of GSR and its
counsel for any loss, claim, costs, expenses, damages or
liabilities any of them may suffer as a result of any
misrepresentations contained in this paragraph.
4.3. RTME acknowledges and agrees that the issue and delivery of the Shares
will be conditional upon (i) such issuance and delivery being exempt from
the requirement to file a prospectus or similar document under any
applicable Securities Laws or (ii) the receipt by GSR of such orders,
consents or approvals as may be required to permit such sale without the
requirement of filing a prospectus or similar document. RTME acknowledges
and agrees that GSR may be required to provide applicable securities
regulatory authorities with the identity of the purchaser of the Shares.
In addition to the representations, warranties and covenants set out in
Sections 4.1 and 4.2 of this Agreement, RTME also makes the
representations, warranties and covenants contained in Schedule B to this
agreement with the intention that they may be relied upon by GSR and its
counsel in determining its eligibility to receive the Shares under
applicable securities laws. RTME further agrees that by accepting delivery
of the Shares on the Closing Date, it shall be representing and warranting
that the foregoing representations and warranties are true and correct as
at the Closing Date with the same force and effect as if they had been
made at the time of Closing and that they shall survive the issuance and
delivery of the Shares and shall continue in full force and effect
notwithstanding any subsequent disposition by RTME of any Shares. GSR and
its respective counsel shall be entitled to rely on the representations
and warranties of RTME contained in Schedule B and Sections 4.1 and 4.2
and RTME shall indemnify and hold harmless each of GSR and its counsel for
any losses any of them may suffer as a result of any misrepresentations or
breaches of representations and warranties contained in Schedule B.
5. COVENANTS OF GSR AND RTME
-------------------------
5.1. Covenants of GSR
----------------
GSR shall:
5.1.1. forthwith use its best efforts to obtain all necessary consents,
approvals or waivers to the transactions contemplated hereby,
including without limitation the consents or approvals of The
Toronto Stock Exchange and of any governmental or regulatory
agency having jurisdiction in respect of such transactions;
5.1.2. shall not enter into or become bound by any agreement, contract or
arrangement or undertake any obligation with any other person or
party, the effect of which may prohibit, conflict or interfere
with or limit the ability of GSR to carry out in full its
obligations to RTME pursuant to this Agreement;
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5.1.3. cause Guyanor to enter into the Heads of Agreement concurrently
with the execution hereof; and
5.1.4. use the Proceeds as follows:
5.1.4.1. to advance $750,000 to Guyanor for Guyanor and/or
SOTROPMAG to use exclusively to fund a work program or
programs in accordance with the Heads of Agreement and
in particular to carry out the work programme
attributable to RTME's Minimum Expenditure under Clause
2.9(a) of the Heads of Agreement; and
5.1.4.2. the remaining $250,000 shall be applied first to pay
the costs of the re-organization of Guyanor,
particularly retrenchment costs under French law, and
second any monies remaining to be applied to subsequent
work programs carried out by Guyanor pursuant to the
Heads of Agreement. RTME also agrees that GSR's costs
and Guyanor's costs associated with completing this
Share Subscription may be funded from this $250,000.
GSR hereby undertakes to timely take all such measures as are
within its power to ensure that the Proceeds are protected
for, made available for and used for the above purposes.
5.2. Covenants of RTME
-----------------
RTME shall:
5.2.1. execute and deliver to GSR prior to the Closing, a private
placement questionnaire and undertaking in such form as is
reasonably required by The Toronto Stock Exchange in respect of
the purchase by it of the Subscribed Shares at the Closing as
contemplated hereby; and
5.2.2. comply with the Securities Laws and the requirements of The
Toronto Stock Exchange, the American Stock Exchange or any other
stock exchange on which the Shares may be listed for trading from
time to time applicable to it in connection with the transactions
contemplated hereby.
6. REPRESENTATIONS, WARRANTIES
AND COVENANTS TO SURVIVE CLOSING
--------------------------------
All of the representations, warranties and covenants of the parties hereto
contained in this Agreement and any certificates or documents delivered in
connection with the transactions contemplated hereby shall be true and
complete at the time of Closing and as if made at the Closing and shall
survive the closing of the transactions contemplated hereby, the issuance
of the Subscribed Shares and any reorganization, amalgamation, sale or
transfer of or by any of the parties hereto and shall continue in full
force and effect thereafter as
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representations, warranties and covenants which are required to be true,
correct and performed as of the time of Closing.
7. CONDITIONS PRECEDENT TO THE
OBLIGATIONS OF RTME TO CLOSE
----------------------------
7.1. The obligations of RTME to consummate the transactions herein contemplated
at the Closing are subject to the fulfilment of each of the following
conditions:
7.1.1. the representations and warranties of GSR contained herein shall
be true and complete, and the covenants and agreements of GSR
contained herein, including without limitation the covenants in
section 5.1.3 and section 8.1, shall have been performed, in each
case at or before the Closing;
7.1.2. all necessary consents and approvals to the consummation of the
transactions contemplated by this Agreement shall have been
obtained and The Toronto Stock Exchange shall have approved the
Heads of Agreement and the Subscribed Shares shall have been
accepted for listing on The Toronto Stock Exchange; and
7.1.3. on or before the Closing, no federal, provincial, territorial,
regional or municipal government or any agency thereof in Canada
or French Guiana shall have enacted any statute or regulation or
announced any policy that would materially adversely affect the
business or assets of GSR, Guyanor or SOTRAPMAG or the rights of
RTME as a shareholder of GSR.
7.2. The conditions set out in subsection 7.1 are for the exclusive benefit of
RTME and may be waived in whole or in part by RTME at any time.
7.3. In case any of the conditions set out in subsection 7.1 shall not be
fulfilled or performed by GSR at or before the Closing or the Closing has
not been consummated by February 22, 2001 through no fault of RTME, RTME
may rescind its obligations under this Agreement by notice in writing to
GSR and in such event RTME shall be released from all obligations
hereunder but GSR shall be obliged to compensate RTME for all expense and
loss incurred by it as a result of any misrepresentation, breach of
warranty or covenant of GSR hereunder.
8. TRANSACTIONS AT CLOSING
-----------------------
8.1. At the Closing, GSR shall deliver to RTME:
8.1.1. certificates representing the Subscribed Shares, duly and validly
issued as fully paid and non-assessable Shares and in compliance
with and as directed by section 2.2
8.1.2. a certificate of an officer of GSR dated the date of the Closing
certifying to the best of his knowledge after due inquiry that at
and as of the Closing the representations and warranties of GSR
contained in this Agreement are true
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and correct and all covenants, agreements and conditions required
by this Agreement to be performed or complied with by GSR prior to
or at the Closing have been performed and complied with except as
otherwise specifically agreed by RTME and containing such other
information as counsel for RTME may reasonably request;
8.1.3. an opinion of Canadian counsel for GSR dated the date of the
Closing to the effect that:
8.1.3.1. the issue of the Subscribed Shares by GSR is exempt from
the registration and prospectus requirements of the
Securities Laws and no prospectus is required nor are
any other documents required to be filed, proceedings
taken or approvals, permits, consents or authorizations
of regulatory authorities obtained under the Securities
Laws to permit the offering, sale and delivery of the
Subscribed Shares by GSR to RTME;
8.1.3.2. all requisite corporate proceedings have been taken by
or on behalf of GSR to authorize the creation and issue
of the Subscribed Shares and upon payment therefor, the
Subscribed Shares will be duly and validly allotted and
issued as fully paid and non-assessable shares in the
capital of GSR; and
8.1.3.3. the Subscribed Shares will be subject to restrictions on
resale for a 12 month period following Closing under
applicable Securities Laws, but such securities will not
be subject to any other restriction on resale, except
that any sale by RTME of any of the Subscribed Shares
which comprises a distribution from the holdings of a
control person must be made in compliance with or on the
basis of an exemption from the registration and
prospectus requirements of the applicable Securities
Laws.
8.2. In providing the foregoing opinions, GSR's counsel may rely on
certificates of officers of GSR as to questions of fact.
8.3. At the Closing, RTME shall pay to GSR the Proceeds in consideration for
the Subscribed Shares by the delivery of a cheque or cheques or by
transfer of funds by wire in the amount thereof.
9. THE CLOSING
-----------
9.1. The Closing of the issue and sale of the Subscribed Shares shall take
place at 9:00 a.m. (Vancouver time) on the Closing Date or at such other
date and time as may be mutually agreed in writing between the parties
hereto, at the office of Xxxxxx Xxxxxxx Xxxxxx & XxXxxxxx, 1600 - 000 Xxxx
Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx.
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10. GENERAL PROVISIONS
------------------
10.1. The expenses incurred by each party hereto in connection with this
Agreement and the transactions provided for herein shall be borne by such
party.
10.2. Time is of the essence of this Agreement and each of the terms and
conditions of this Agreement.
10.3. Any notices to be given to one party by the other may be sent by telecopy
or may be personally delivered addressed as follows:
To RTME:
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Rio Tinto Mining and Exploration Limited
000 - 000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
Attention: Xx. X.X. Xxxxxx
---------
Telecopy number: (000) 000-0000
To GSR:
------
Golden Star Resources Ltd.
0000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: President
---------
Telecopy number: 000-000-0000
or at such other address as any party hereto may from time to time
designate by written notice to the other parties hereto and any such
notice shall be deemed to have been given and received by the party to
which it is addressed on delivery if delivered and on the day following
transmission if telecopied.
10.4. Neither party hereto shall be liable for or otherwise incur any obligation
to any other party in respect of any commissions or finder's fees to any
broker, intermediary or finder generated on the sale or purchase of the
Subscribed Shares or any of the other transactions contemplated hereby.
10.5. This Agreement is entered into to give effect to the requirement in
paragraph 2.7(a) of the Heads of Agreement that RTME (or an affiliate)
shall take a $1,000,000 private placement in shares of GSR. Subject to the
foregoing, the Heads of Agreement shall continue in full force and effect.
10.6. This Agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective successors and permitted assigns. GSR
shall not be permitted to assign or otherwise transfer any of its rights
hereunder. Subject to applicable securities laws,
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RTME shall be permitted to assign or otherwise transfer any or all of its
rights hereunder to an Affiliate.
10.7. This Agreement shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the laws of British Columbia,
Canada.
10.8. The parties hereto shall consult with each other before issuing any press
release or making any public announcement with respect to the transactions
contemplated by this Agreement and, except to the extent required by any
applicable law or regulatory requirement, neither party will issue any
such press release or make any such public announcement without the prior
written consent of the other party, which consent will not be unreasonably
withheld or delayed. Each party will review and may provide comments on
any such press release or other public announcement mentioning another
party hereto proposed to be made by another party within 24 hours after
receipt.
10.9. This Agreement may be executed in counterparts and may be delivered by
facsimile and, upon the execution and delivery of one such counterpart by
each party hereto, such counterparts shall together constitute one
agreement and shall be construed as if all parties hereto had executed one
copy of this Agreement.
IN WITNESS WHEREOF this Agreement has been executed as of the day and year first
above written.
GOLDEN STAR RESOURCES LTD.
By: /s/ Xxxxx Xxxxxxxx
----------------------------------------
Xxxxx Xxxxxxxx
President
RIO TINTO MINING AND EXPLORATION LIMITED
By: /s/ X. X. Xxxxxx
----------------------------------
Xxxxxxx X. Xxxxxx
General Manager Commercial
SCHEDULE A
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Heads of Agreement
(See attached)
SCHEDULE B
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REPRESENTATIONS, WARRANTIES AND COVENANTS OF RTME
-------------------------------------------------
RTME hereby represents, warrants and covenants to GSR as follows:
1. RTME is not a resident of the United States or any State thereof.
2. RTME (a) is a limited partnership, corporation, partnership or limited
liability company duly organized and validly existing under the laws of the
jurisdiction of its formation and (b) has the requisite partnership,
corporate or limited liability company, as the case may be, power and
authority to execute, deliver and perform its obligations under this
Agreement.
3. The acquisition of Shares by RTME pursuant to this Agreement does not (i)
violate, conflict with or result in any breach or contravention of, or the
creation of any Lien under, any Contractual Obligation of RTME or any
Requirement of Law applicable to RTME or (ii) violate, conflict with or
result in any breach or contravention of any judgment, injunction, writ,
award, decree or order of any nature of any Governmental Authority against,
or binding upon, RTME.
4. No approval, consent, compliance, exemption, authorization or other action
by, or notice to, or filing with, any Governmental Authority or any other
Person, and no lapse of a waiting period under any Requirement of Law, is
necessary or required in connection with the acquisition by RTME of Shares
(as distinct from the issue or sale of Shares to RTME or KCEI) pursuant to
this Agreement.
5. This Agreement has been and as of the Closing Date will have been, duly
executed and delivered by RTME, and this Agreement constitutes and will, as
of the Closing Date, constitute, the legal, valid and binding obligations
of such Seller, enforceable against it in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or similar
laws affecting the enforcement of creditors' rights generally or by
equitable principles relating to enforceability (regardless of whether
considered in a proceeding at law or in equity).
6. The Shares to be acquired by RTME or KCEI pursuant to this Agreement are
being or will be acquired for its own account and with no intention of
distributing or reselling such Shares or any part thereof in any
transaction that would be in violation of any North American Securities
Laws, without prejudice, however, to the rights of RTME at all times to
sell or otherwise dispose of all or any part of such Shares under a
prospectus or an effective registration statement under any North American
Securities Laws, or under an exemption from such prospectus or registration
requirements available under such North American Securities Laws, and
subject, nevertheless, to the disposition of RTME's property being at all
times within its control. If RTME should in the future decide to dispose of
any Shares, RTME understands and agrees that it may do so only in
compliance with all applicable North American Securities Laws as then in
effect. RTME agrees to the
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imprinting, so long as required by law, of legends on certificates
representing all of its Shares to the following effect:
"THE SHARES EVIDENCED HEREBY (THE "SHARES") WERE ORIGINALLY ISSUED IN
A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT
BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE
SHARES HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT (A) SUCH
SHARES MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES
ACT, (2) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE
903 OR 904 AND OF RULE 905 UNDER THE SECURITIES ACT, (3) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" AS DEFINED IN RULE 501(A)(1), (2),
(3) OR (7) OF THE SECURITIES ACT THAT, PRIOR TO SUCH TRANSFER,
FURNISHES THE ISSUER A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS AND AN OPINION OF COUNSEL THAT SUCH
TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (4) IN ACCORDANCE
WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL AND SUCH OTHER
CERTIFICATIONS AS THE ISSUER MAY REQUEST), OR (5) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH
ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR
ANY OTHER APPLICABLE JURISDICTION, (B) THE HOLDER WILL NOT CONDUCT ANY
HEDGING TRANSACTIONS INVOLVING THE SHARES EXCEPT IN COMPLIANCE WITH
THE SECURITIES ACT AND (C) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER
IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SHARES OF THE
RESALE RESTRICTIONS SET FORTH IN (A) AND (B) ABOVE.
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
TRADING RESTRICTIONS UNDER APPLICABLE SECURITIES LAWS OF THE PROVINCES
OF CANADA.
"DELIVERY OF THIS CERTIFICATE MAY NOT CONSTITUTE "GOOD DELIVERY" OF
SETTLEMENT OF TRANSACTIONS ON ANY STOCK EXCHANGE IN CANADA."
7. RTME understands that the Shares will not be registered at the time of
their issuance under any North American Securities Laws for the reason that
the sale provided for in this Agreement is intended to be exempt therefrom
and that the reliance of RTME on such exemption is predicated in part on
RTME's representations set forth herein.
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8. There are no brokerage commissions, finder's fees or similar fees or
commissions payable by RTME in connection with the transactions
contemplated hereby based on any agreement, arrangement or understanding
with RTME or any action taken by RTME.
9. RTME is an "Accredited Investor" within the meaning of Rule 501 of
Regulation D under the United States Securities Act of 1933, as presently
in effect.
10. RTME covenants that it will not take any action for the purpose of, or that
could reasonably be expected to have the effect of, preparing the market in
any jurisdiction, or creating a demand in any jurisdiction, for the Shares.
11. RTME has not and will not engage in any hedging transactions involving any
equity securities of GSR until all resale restrictions applicable to the
Shares have expired.
12. RTME has not received any prospectus, registration statement or offering
memorandum (as such term is defined in applicable Canadian Securities
Laws).
13. RTME will effect any and all sales of Shares in accordance with all
applicable Requirements of Law.
Defined Terms Used in this Schedule:
"Canadian Securities Laws" means all applicable securities laws in each of the
Provinces of Canada and the respective regulations made thereunder, together
with applicable published fee schedules, prescribed forms, policy statements,
orders, blanket rulings and other regulatory instruments of the securities
regulatory authorities in such provinces.
"Contractual Obligations" means, as to any Person, any provision of any security
issued by such Person or of any agreement, undertaking, contract, indenture,
mortgage, deed of trust or other instrument to which such Person is a party or
by which it or any of its property is bound.
"Governmental Authority" means the government of any nation, state, city,
locality or other political sub-division thereof, any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government, and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise, by any of the
foregoing.
"Lien" means any mortgage, deed of trust, pledge, hypothecation, assignment,
encumbrance, lien (statutory or other) or preference, priority, right or other
security interest or preferential arrangement of any kind or nature whatsoever
(excluding preferred stock and equity related preferences).
"North American Securities Laws" means, collectively the Canadian Securities
Laws and the U.S. Securities Laws.
"Person" means any individual, firm, corporation, partnership, trust,
incorporated or unincorporated association, joint venture, joint stock company,
limited liability company,
4
Governmental Authority or other entity of any kind, and shall include any
successor (by merger or otherwise) of such entity.
"Requirements of Law" means, as to any Person, any law (including, without
limitation, North American Securities Laws), statute, treaty, rule, regulation,
right, privilege, qualification, license or franchise or determination of an
arbitrator or a court or other Governmental Authority or stock exchange, in each
case applicable or binding upon such Person or any of its property or to which
such Person or any of its property is subject or pertaining to any or all of the
transactions contemplated or referred to herein.
"U.S. Securities Laws" means, collectively, the United States Securities Act of
1933, as amended; the United States Securities Act of 1934, as amended, and all
of the rules, regulations thereunder.
