Registration Rights Agreement
Dated as of August 24, 1999
among
Golden Star Resources Ltd.
and
TD Securities (USA) Inc.
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into on August 24, 1999 among GOLDEN STAR RESOURCES LTD., a Canadian corporation
(the "Company"), and TD SECURITIES (USA) INC. (the "Agent").
WHEREAS, pursuant to an agency agreement dated August 16, 1999 between the
Company and the Agent (the "Agency Agreement"), the Company has issued and sold
$ 4,155,000 aggregate principal amount of subordinate convertible debentures of
the Company and 6,923,000 equity units (the "Units") consisting of the Company's
common shares (the "Common Shares") and warrants (the "Warrants") to selected
institutional investors. Each Unit consists of one Common Share and one-half
Warrant. Each whole Warrant entitles the holder thereof upon exercise to one
Common Share. Certain terms used herein but not defined herein shall have the
meanings ascribed to them in the Agency Agreement;
WHEREAS, as an inducement to the Agent, the Company has agreed that on the
Closing Date (as defined in the Agency Agreement) it will issue to the Agent
380,825 Broker Warrants (as defined below) exercisable by the Agent for 12
months from the Closing Date at a price of $0.70 per Common Share, and has
agreed further that upon completion of the Bogoso Acquisition (as defined
below), the Company shall issue to the Agent a further 380,825 Broker Warrants
exercisable by the Agent for 12 months from the Closing Date at a price of $0.70
per Common Share; and
WHEREAS, the Broker Warrants provide that the Agent shall have certain
registration rights pursuant to this Agreement.
NOW, THEREFORE, in consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from
time to time, and the rules and regulations of the Securities and Exchange
Commission promulgated thereunder.
"1934 Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time, and the rules and regulations of the Securities
and Exchange Commission promulgated thereunder.
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"Affiliate" of a Person shall mean a Person who controls, is
controlled by or is under common control with such Person or, the spouse
or children (or a trust exclusively for the benefit of a spouse and/or
children) of such person or, in the case of a Holder which is a
partnership, its partners.
"Agency Agreement" shall have the meaning set forth in the preamble
of this Agreement.
"Agent" shall have the meaning set forth in the preamble of this
Agreement.
"Bogoso Acquisition" shall mean the purchase by the Company of a
direct or indirect 100% interest in the common shares and indebtedness of
Bogoso Gold Limited, a Ghanaian company.
"Bogoso Acquisition Date" shall mean the date of the completion of
the Bogoso Acqusition.
"Broker Warrants" shall mean collectively the 380,825 Broker
Warrants to be issued to the Agent on the Closing Date (the "Tranche 1
Broker Warrants") and the 380,825 Broker Warrants to be issued to the
Agent on the closing of the Bogoso Acquisition (the "Tranche 2 Broker
Warrants"). Each Broker Warrant is convertible into Common Shares of the
Company at an exercise price of $0.70 per Common Share.
"Closing Date" shall mean the Closing Date as defined in the Agency
Agreement.
"Common Shares" shall have the meaning set forth in the preamble of
this Agreement.
"Company" shall have the meaning set forth in the preamble of this
Agreement and also includes the Company's successors.
"Xxxxxxx Registration Rights Agreement" shall mean the registration
rights agreement entered into as of June 9, 1999 between the Company and
Xxxxxxx Associates, L.P. and Westgate International, L.P. relating to the
issuance to Xxxxxxx Associates, L.P. and Westgate International, L.P. of
warrants to purchase Common Shares.
"Xxxxxxx Registration Rights Piggyback" shall have the meaning set
forth in Section 2 of this Agreement.
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"Person" shall mean an individual, partnership, corporation, limited
liability company, trust or unincorporated organization, or a government
or agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement or a Shelf Registration Statement, as the case may be, including
any preliminary prospectus, and any such prospectus as amended or
supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by
all other amendments and supplements to a prospectus, including
post-effective amendments, and in each case including all material
incorporated by reference therein.
"Registrable Securities" shall mean the Common Shares issuable or
issued to the Agent or its permitted transferee or designee upon exercise
of the Broker Warrants, or upon any stock split, stock dividend,
recapitalization or similar event with respect to such Common Shares. For
clarification purposes, "Registrable Securities" includes without
limitation the Common Shares to be issued upon exercise of the 380,825
Broker Warrants to be issued to the Agent on the Closing Date and 380,825
Broker Warrants to be issued to the Agent on the Bogoso Acquisition Date.
"Registration Expenses" shall mean all expenses to be incurred by
the Company in connection with the Agent's registration rights under this
Agreement, including, without limitation, all registration and filing
fees, printing expenses, fees and disbursements of counsel for the
Company, blue sky fees and expenses, reasonable fees and disbursements of
counsel to the Agent (using one United States counsel and, to the extent
necessary, one Canadian counsel, each selected by the Agent) for a
reasonable and customary "due diligence" examination of the Company and
review of the Shelf Registration Statement and related documents, and the
expense of any special audits incident to or required by any such
registration (but excluding the compensation of regular employees of the
Company which shall be paid in any event by the Company).
"Registration Rights Piggyback" shall have the meaning set forth in
Section 3 of this Agreement.
"Registration Statement" shall have the meaning set forth in Section
6 of this Agreement.
"Rule 144" shall mean Rule 144 promulgated under the 1933 Act, or
any successor rule to similar effect.
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"Rule 144A" shall mean Rule 144A promulgated under the 1933 Act, or
any successor rule to similar effect.
"SEC" shall mean the Securities and Exchange Commission.
"Shelf Registration" shall have the meaning set forth in Section 8
of this Agreement.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 8 of this
Agreement which covers all of the Registrable Securities on an appropriate
form under Rule 415 under the 1933 Act, or any similar rule that may be
adopted by the SEC, and all amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Units" shall have the meaning set forth in the preamble to this
Agreement.
"Warrants" shall have the meaning set forth in the preamble to this
Agreement.
2. Piggyback Registration Rights Relating to Xxxxxxx Registration
Rights Agreement. If the Company proposes to file a registration statement with
the SEC pursuant to the provisions of the Xxxxxxx Registration Rights Agreement,
the Company shall give written notice thereof to the Agent at least 21 days
prior to the initial filing of such registration statement with the SEC. The
Agent shall then have the right, promptly after delivery of the Company's
notice, to request in writing that the Company include all or a portion of the
Agent's Registrable Securities (including, for clarification purposes,
Registrable Securities issuable upon exercise of the Tranche 1 Broker Warrants
and/or, if issued, the Tranche 2 Broker Warrants) in such registration
statement. The Company shall include in the registration all of the Registrable
Securities that the Agent has requested be included. Such event is referred to
herein as the "Xxxxxxx Registration Rights Piggyback".
3. Piggyback Registration Rights. If the Company proposes to file a
registration statement with the SEC relating to a registration of any of the
Company's Common Shares and for any reason the Xxxxxxx Registration Rights
Piggyback is unavailable to the Agent, the Company shall give written notice
thereof to the Agent at least 30 days prior to the initial filing of such
registration statement with the SEC. The Agent shall have the right, promptly
after delivery of the Company's notice, to request in writing that the Company
include all or a portion of the Registrable Securities (including, for
clarification purposes, Registrable Securities issuable upon exercise of either
the Tranche 1 Broker Warrants or, if issued, the Tranche 2 Broker Warrants) in
such registration statement. The Company shall
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include in the registration all of the Registrable Securities that the Agent has
requested be included. Such event is referred to herein as the "Registration
Rights Piggyback".
4. Restrictive Legend. Each certificate representing the Broker
Warrants or Registrable Securities shall, except as otherwise provided in this
Section 4 or in Section 5, be stamped or otherwise imprinted with a legend
substantially in the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 OR ANY STATE SECURITIES LAWS AND NEITHER THIS SECURITY OR ANY
INTEREST THEREIN MAY BE TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS
IT HAS BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR STATE
SECURITIES LAWS OR AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT AND
SUCH LAWS IS AVAILABLE."
A certificate shall not bear such legend if in the opinion of counsel
satisfactory to the Company (it being agreed that Xxxx, Weiss, Rifkind, Xxxxxxx
& Xxxxxxxx shall be satisfactory) the securities being sold thereby may be
publicly sold without registration under Rule 144 or otherwise.
5. Notice of Proposed Transfer. Prior to any proposed transfer of
any Broker Warrant or Registrable Securities (other than under the circumstances
described in Sections 6, 7 or 8), the Agent shall given written notice to the
Company of its intention to effect such transfer. Each such notice shall
describe the manner of the proposed transfer and, if requested by the Company
(at the Company's expense), shall be accompanied by an opinion of counsel
satisfactory to the Company (it being agreed that Xxxx, Weiss, Rifkind, Xxxxxxx
& Xxxxxxxx shall be satisfactory) to the effect that the proposed transfer may
be effected without registration under the 1933 Act, whereupon the holder of
such Warrant or Shares shall be entitled to transfer such Warrant or Shares in
accordance with the terms of its notice; provided, however, that no such opinion
of counsel shall be required for a transfer to one or more partners of the
transferor (in the case of a transferor that is a partnership) or to an
Affiliated corporation (in the case of a transferor that is a corporation). Each
certificate for the Broker Warrants or Registrable Securities transferred as
above provided shall bear the legend set forth in Section 4, except that such
certificate shall not bear such legend if (i) such transfer is in accordance
with the provisions of Rule 144 (or any other rule permitting public sale
without registration under the 0000 Xxx) or (ii) the opinion of counsel referred
to above is to the further effect that the transferee and any subsequent
transferee (other than an Affiliate of the Company) would be entitled to
transfer such securities in a public sale without registration under the 1933
Act. The restrictions provided for in this Section 5 shall not apply to
securities
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which are not required to bear the legend prescribed by Section 4 in accordance
with the provisions of that Section.
6. Request for Registration. This Section 6 shall apply if
registration rights are unavailable to the Agent under Section 2 or Section 3 of
this Agreement for any reason.
(a) Promptly after the Agent is informed of the unavailability of
both the Xxxxxxx Registration Rights Piggyback and the Registration Rights
Piggyback, the Agent may request in a written notice that the Company file
a registration statement under the 1933 Act (or a similar document
pursuant to any other statute then in effect corresponding to the 0000
Xxx) covering the registration of any or all Registrable Securities held
by the Agent in the manner and for the number of Registrable Securities
specified in such notice (a "Registration Statement"). Following receipt
of any notice under this Section 6, and subject to Section 6(b), the
Company shall use its reasonable best efforts to cause to be registered
under the 1933 Act all Registrable Securities that the Agent has, within
thirty (30) days after the Company has received such notice, requested be
registered in accordance with the manner of disposition specified in such
notice by the Agent.
(b) If the Agent intends to have the Registrable Securities
distributed by means of an underwritten offering, the right of the Agent
to include its Registrable Securities in such registration shall be
conditioned upon the Agent's participation in such underwritten offering
and the inclusion of the Agent's Registrable Securities in the
underwritten offering to the extent provided below. If the Agent proposes
to distribute Registrable Securities through such underwritten offering,
it shall enter into an underwriting agreement in customary form with the
underwriter or underwriters. Such underwriter or underwriters shall be
selected by the Agent and shall be approved by the Company, which approval
shall not be unreasonably withheld, provided, (i) that all of the
representations and warranties by, and the other agreements on the part
of, the Company to and for the benefit of such underwriters shall also be
made to and for the benefit of the Agent, (ii) that any or all of the
conditions precedent to the obligations of such underwriters under such
underwriting agreement shall be conditions precedent to the obligations of
the Agent, and (iii) that the Agent shall not be required to make any
representations or warranties to or agreements with the Company or the
underwriters other than representations, warranties or agreements
regarding the Agent, the Registrable Securities of the Agent and intended
method of distribution and any other representations required by law or
reasonably required by the underwriters. If the Agent disapproves of the
terms of the underwriting, the Agent may elect to withdraw all its
Registrable Securities by written notice to the Company and the managing
underwriter. The securities so withdrawn shall also be withdrawn from
registration.
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(c) Notwithstanding any provision of this Agreement to the contrary,
the Company shall not be required to effect a registration pursuant to
this Section 6 during the period starting with the date of filing by the
Company of, and ending on a date one hundred twenty (120) days following
the effective date of, a Registration Statement pertaining to a public
offering of securities for the account of the Company or on behalf of the
selling stockholders under any other registration rights agreement which
the holders have been entitled to join pursuant to Section 7; provided,
that the Company shall actively employ in good faith all reasonable
efforts to cause such Registration Statement to become effective as soon
as is practicable.
(d) The Company shall not be obligated to effect and pay for more
than one (1) registrations pursuant to this Section 6; provided, that a
registration requested pursuant to this Section 6 shall not be deemed to
have been effected for purposes of this Section 6(d) unless (i) it has
been declared effective by the SEC, (ii) it has remained effective for the
period set forth in Section 12(a), (iii) the Agent has not withdrawn
sufficient shares from such registration such that the remaining holders
requesting registration would not have been able to request registration
under the provisions of Section 6 and (iv) the offering of Registrable
Securities pursuant to such registration is not subject to any stop order,
injunction or other order or requirement of the SEC (other than any such
stop order, injunction, or other requirement of the SEC prompted by any
act or omission of the Agent).
7. Incidental Registration. If at any time the Company determines
that it shall file a Registration Statement under the 1933 Act (other than a
registration statement on a Form S-4 or S-8 or filed in connection with an
exchange offer or an offering of securities solely to the Company's existing
stockholders) on any form that would also permit the registration of the
Registrable Securities and such filing is to be on its behalf and/or on behalf
of selling holders of its securities for the general registration of its common
shares to be sold for cash, the Company shall each such time promptly give the
Agent written notice of such determination setting forth the date on which the
Company proposes to file such registration statement, which date shall be no
earlier than forty-five (45) days from the date of such notice, and advising the
Agent of its right to have Registrable Securities included in such registration,
provided that the Company shall not be required under this Section 7 to include
Registrable Securities in such underwritten offering unless the Agent accepts
the terms of the underwriting of such offering that have been reasonably agreed
upon between the Company and the underwriters selected by the Company. Upon the
written request of the Agent received by the Company no later than thirty (30)
days after the date of the Company's notice, the Company shall use its
reasonable best efforts to cause to be registered under the 1933 Act all of the
Registrable Securities that the Agent has so requested to be registered.
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8. Shelf Registration. This Section 8 shall apply if registration
rights are unavailable to the Agent under Section 2 or Section 3 of this
Agreement for any reason. As promptly as practicable after the Agent is informed
of the unavailability of both the Xxxxxxx Registration Rights Piggyback and the
Registration Rights Piggyback, upon written request of the Agent given within 15
days of it being so informed, the Company shall file with the SEC a Shelf
Registration Statement pursuant to Rule 415 under the 1933 Act on Form S-3 (the
"Shelf Registration") relating to the offer and sale of the Registrable
Securities by the Company from time to time in accordance with the methods of
distribution to be decided by the Company and the Agent and set forth in such
Shelf Registration Statement, and use its reasonable best efforts to cause such
Shelf Registration Statement to be declared effective by the SEC within 210 days
after the Closing Date.
The Company further agrees, if necessary, to supplement or amend the
Shelf Registration Statement if reasonably requested by the Agent with respect
to information relating to the Company and otherwise as required by Section
12(b) below, to use reasonable efforts to cause any such amendment to become
effective and such Shelf Registration Statement to become usable as soon as
thereafter practicable and to furnish to the Agent copies of any such supplement
or amendment promptly after its being used or filed with the SEC.
9. Expenses of Registration. All expenses incurred in connection
with each registration pursuant to Section 2, Section 3, Section 6, Section 7
and Section 8 of this Agreement, excluding underwriters' discounts and
commissions, but including without limitation all registration, filing and
qualification fees, word processing, duplicating, printers' and accounting fees
(including the expenses of any special audits or "cold comfort" letters required
by or incident to such performance and compliance), fees of the National
Association of Securities Dealers, Inc. or listing fees, messenger and delivery
expenses, all fees and expenses of complying with state securities or blue sky
laws, fees and disbursements of counsel for the Company, and the fees and
disbursements of one counsel for the Agent, shall be paid by the Company;
provided, however, that if a registration request pursuant to Section 6 of this
Agreement is subsequently withdrawn at the request of the Agent, the Agent shall
bear such expenses unless such Agent shall forfeit its right to one requested
registration pursuant to Section 6 of this Agreement and provided, further, that
if a registration request pursuant to Section 8 of this Agreement is
subsequently withdrawn at the request of the Agent, the Company shall not be
required to pay any expenses of such registration proceeding, and the Agent
shall bear such expenses. The Agent shall bear and pay the underwriting
commissions and discounts applicable to securities offered for their account in
connection with any registrations, filings and qualifications made pursuant to
this Agreement.
10. Effective Registration Statement. The Company will be deemed not
to have used their reasonable best efforts to cause the Registration Statement,
or Shelf Registration Statement, as the case may be, to become, or to remain,
effective during the
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requisite period if it voluntarily takes any action that would result in the
Registration Statement, or Shelf Registration Statement, as the case may be, not
being declared effective or in the Agent not being able to exchange or offer and
sell such Registrable Securities during that period unless (i) such action is
required by applicable law or (ii) such action is taken by the Company in good
faith and for valid business reasons (not including avoidance of the Company's
obligations hereunder), including the acquisition or divestiture of assets, so
long as the Company promptly complies with the requirements of Section 12(f)
hereof, if applicable.
11. Specific Enforcement. Without limiting the remedies available to
the Agent, the Company acknowledges that any failure by it to comply with its
obligations under Sections 2, 3, 6 and 7 hereof may result in material
irreparable injury to the Agent for which there is no adequate remedy at law,
that it will not be possible to measure damages for such and that, in the event
of any such failure, the Agent may obtain such relief as may be required to
specifically enforce the Company's obligations under Sections 2, 3, 6 and 7
hereof.
12. Obligations of the Company. Whenever required under Section 6 or
Section 8 to use its reasonable best efforts to effect the registration of any
Registrable Securities, the Company shall, subject to the provisions of such
sections, as expeditiously as possible:
(a) Prepare and file with the SEC a Registration Statement, or Shelf
Registration Statement, as the case may be, with respect to such
Registrable Securities and use its reasonable best efforts to cause such
Registration Statement, or Shelf Registration Statement, as the case may
be, to become and remain effective for the period of the distribution
contemplated thereby determined as provided hereafter.
(b) Prepare and file with the SEC such amendments and supplements to
such Registration Statement, or Shelf Registration Statement, as the case
may be, and the prospectus used in connection therewith as may be
necessary to comply with the provisions of the 1933 Act with respect to
the disposition of all Registrable Securities covered by such registration
statement, or Shelf Registration Statement, as the case may be.
(c) Furnish to the Agent such numbers of copies of the Registration
Statement, or Shelf Registration Statement, as the case may be, and the
prospectus included therein (including each preliminary prospectus and any
amendments or supplements thereto) in conformity with the requirements of
the 1933 Act and such other documents and information as they may
reasonably request.
(d) Use its reasonable best efforts to register or qualify the
Registrable Securities covered by such Registration Statement, or Shelf
Registration Statement, as
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the case may be, under such other securities or blue sky laws of such
jurisdiction within the United States as shall be reasonably appropriate
for the distribution of the Registrable Securities covered by the
Registration Statement, or Shelf Registration Statement, as the case may
be; provided, however, that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do business
in or to file a general consent to service of process in any jurisdiction,
or subject itself to taxation in any such jurisdiction, or subject itself
to taxation in any such jurisdiction wherein it would not but for the
requirements of this paragraph (d) be obligated to do so; and provided,
further, that the Company shall not be required to qualify such
Registrable Securities in any jurisdiction in which the securities
regulatory authority requires that the Agent submit any of its Registrable
Securities to the terms, provisions and restrictions of any escrow, lockup
or similar agreement(s) for consent to sell Registrable Securities in such
jurisdiction unless the Agent agrees to do so.
(e) Promptly notify the Agent, at any time when a prospectus is
required to be delivered under the 1933 Act, of the happening of any event
as a result of which the prospectus included in such Registration
Statement, or Shelf Registration Statement, as the case may be, as then in
effect, includes an untrue statement of a material fact or omits to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances under
which they were made, and at the request of the Agent promptly prepare and
furnish to the Agent a reasonable number of copies of a supplement to or
an amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such securities, such prospectus shall not
include an 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 in light of the circumstances under which they were
made.
(f) Furnish, at the request of the Agent requesting registration of
Registrable Securities pursuant to Section 6 or Section 8, if the method
of distribution is by means of an underwriting, on the date that the
shares of Registrable Securities are delivered to the underwriters for
sale pursuant to such registration, or if such Registrable Securities are
not being sold through underwriters, on the date that the registration
statement with respect to such shares of Registrable Securities becomes
effective, (1) a signed opinion, dated such date, of the independent legal
counsel representing the Company for the purpose of such registration,
addressed to the underwriters, if any, and if such Registrable Securities
are not being sold through underwriters, then to the Agent, as to such
matters as such underwriters or the Agent, as the case may be, may
reasonably request and as would be customary in such a transaction; and
(2) if such sale is pursuant to an underwritten offering, letters dated
such date and the date the offering is priced from the independent
certified public accountants of the Company, addressed to the
underwriters, if any and, if such
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accountants refuse to deliver such letters to the Agent, then to the
Company (i) stating that they are independent certified public accountants
within the meaning of the 1933 Act and that, in the opinion of such
accountants, the financial statements and other financial data of the
Company included in the registration statement or the prospectus, or any
amendment or supplement thereto, comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act and
(ii) covering such other financial matters (including information as to
the period ending not more than five (5) business days prior to the date
of such letters) with respect to the registration in respect of which such
letter is being given as such underwriters or the Agent, as the case may
be, may reasonably request and as would be customary in such a
transaction.
(g) Enter into customary agreements (including if the method of
distribution is by means of an underwriting, an underwriting agreement in
customary form) and take such other actions as are reasonably required in
order to expedite or facilitate the disposition of the Registrable
Securities to be so included in the registration statement.
(h) Otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable, but not later than
eighteen (18) months after the effective date of the registration
statement, an earnings statement covering the period of at least twelve
(12) months beginning with the first full month after the effective date
of such registration statement, which earnings statements shall satisfy
the provisions of Section 11(a) of the 1933 Act.
For purposes of Sections 12(a) and 12(b), the period of distribution of
Registrable Securities in a firm commitment underwritten public offering shall
be deemed to extend until each underwriter has completed the distribution of all
securities purchased by it, 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 and 150 days after the
effective date thereof.
13. Underwriting Requirements. In connection with any underwritten
offering, the Company shall not be required under Section 7 to include
Registrable Securities in such underwritten offering unless the Agent accepts
the terms of the underwriting of such offering that have been reasonably agreed
upon between the Company and the underwriters selected by the Company.
14. Indemnification and Contribution. (a) The Company shall
indemnify and hold harmless the Agent, its respective affiliates, and its
respective directors, officers, employees and agents, and each Person, if any,
who controls any of such parties within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act as follows:
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(i) Against any and all losses, liabilities, claims, damages and
expenses whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement or Shelf Registration Statement, as the case may be (or any
amendment thereto) pursuant to which Registrable Securities were
registered under the 1933 Act, including all documents incorporated
therein by reference, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement
or alleged untrue statement of a material fact contained in any Prospectus
(or any amendment or supplement thereto) or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(ii) Against any and all losses, liabilities, claims, damages and
expenses whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
14(d) below) any such settlement is effected with the written consent of
the Company.
(iii) Against any and all expenses whatsoever, as incurred
(including reasonable fees and disbursements of counsel chosen by an
indemnified party), reasonably incurred in investigating, preparing or
defending against any litigation, or investigation or proceeding by any
court or governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under subparagraph (i) or (ii) of this Section 14(a).
provided, however, that (i) this indemnity shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of an untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Agent, expressly for use in the Registration Statement, or Shelf Registration
Statement, as the case may be (or any amendment thereto) or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) and (ii)
the Company shall not be liable to any indemnified party under this indemnity
agreement with respect to the Registration Statement, or Shelf Registration
Statement, as the case may be, or Prospectus to the extent that any such loss,
claim, damage, liability or expense of such indemnified party results solely
from an untrue statement of a material fact contained in, or the omission of a
material fact from, the Registration Statement, or Shelf Registration Statement,
as the case may be, or Prospectus which untrue statement or omission was
corrected in an
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amended or supplemented Registration Statement, or Shelf Registration Statement,
as the case may be or Prospectus, if the person alleging such loss, claim,
damage, liability or expense was not sent or given, at or prior to the written
confirmation of such sale, a copy of the amended or supplemented Registration
Statement, or Shelf Registration Statement, as the case may be, or Prospectus if
the Company had previously furnished copies thereof to such indemnified party
and if delivery of a prospectus is required by the 1933 Act and was not so made.
This indemnity agreement will be in addition to any liability which the Company
may otherwise have.
(b) In connection with any Registration Statement or Shelf
Registration Statement (or amendments thereto) in which the Agent is
participating, the Agent shall promptly furnish to the Company in writing such
information with respect to the Agent as the Company may reasonably request or
as may be required by law for use in connection with any such Registration
Statement or Shelf Registration Statement and all information required to be
disclosed in order to make any information with respect to the Agent previously
furnished to the Company by the Agent not materially misleading or necessary to
cause such Registration Statement or Shelf Registration Statement not to omit a
material fact with respect to the Agent necessary in order to make the
statements therein not misleading. The Agent agrees to indemnify and hold
harmless the Company, its respective affiliates and its respective directors,
officers (including each officer of the Company who signed the Registration
Statement, or Shelf Registration Statement, as the case may be), agents,
representatives, employees and each Person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act,
against any and all losses, liabilities, claims, damages and expenses described
in the indemnity contained in Section 14(a) hereof, as incurred, but only with
respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement, or Shelf Registration Statement,
as the case may be, (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by the Agent, as the case may be, expressly
for use in the Registration Statement, or Shelf Registration Statement, as the
case may be (or any amendment thereto), or the Prospectus (or any amendment or
supplement thereto); provided, however, that the Agent shall not be liable for
any claims hereunder in excess of the amount of net proceeds received by the
Agent from the sale of Registrable Securities pursuant to such Registration
Statement, or Shelf Registration Statement, as the case may be.
(c) Each indemnified party shall give notice in writing as promptly
as reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which it
may have otherwise than on account of this indemnity agreement. An
14
indemnifying party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of any indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel, in addition to any local counsel, for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of any indemnified party, settle or compromise or consent to the
entry of any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever in respect of which indemnification or contribution could be
sought under this Section 14 (whether or not the indemnified parties are actual
or potential parties thereof), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 14(a)(ii) hereof effected
without its written consent if (i) such settlement is entered into more than 45
days after receipt by such indemnifying party of the aforesaid request, (ii)
such indemnifying party shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such indemnified party
in accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in any of the indemnity
provisions set forth in this Section 14 is for any reason unavailable to or
insufficient to hold harmless an indemnified party in respect of any losses,
liabilities, claims, damages or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such indemnified party, as
incurred, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Agent, from the offering of the
Registrable Securities included in such offering or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company and the Agent, in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations. The relative fault of the Company and Agent shall be
determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company or the
Agent and the parties' relative intent, knowledge,
15
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Agent agree that it would not be just and
equitable if contribution pursuant to this Section 14 were determined by pro
rata allocation or by another method of allocation which does not take account
of the equitable considerations referred to above in this Section 14. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 14 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 14, each person, if any, who
controls the Agent within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as the Agent, and
each director of the Company and each officer of the Company who signed the
Registration Statement or Shelf Registration Statement, as the case may be, and
each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company. The parties hereto agree that any underwriting
discount or commission or reimbursement of fees paid to the Agent pursuant to
the Agency Agreement shall not be deemed to be a benefit received by the Agent
in connection with the offering of the Registrable Securities in such offering.
15. Miscellaneous. (a) Rule 144. For so long as the Company is
subject to the reporting requirements of Section 13 or 15 of the 1934 Act, the
Company covenants that it will file the reports required to be filed by it under
Section 13(a) or 15(d) of the 1934 Act and the rules and regulations adopted by
the SEC thereunder, that if they cease to be so required to file such reports,
they will upon the reasonable request of the Agent (i) make publicly available
such information as is necessary to permit sales pursuant to Rule 144 under the
1933 Act, (ii) deliver such information to a prospective purchaser as is
necessary to permit sales pursuant to Rule 144A under the 1933 Act and (iii)
take such further action that is reasonable in the circumstances, in each case,
to the extent required from time to time to enable the Agent to sell its
Registrable Securities without registration under the 1933 Act within the
limitation of the exemptions provided by (x) Rule 144 under the 1933 Act, as
such Rule may be amended from time to time or (y) any similar rules or
regulations hereafter adopted by the SEC. Upon the reasonable request of the
Agent, the Company will deliver to the Agent a written statement as to whether
they have complied with such requirements.
(b) No Inconsistent Agreements. The Company has not, as of the date
hereof, entered into nor will the Company on or after the date of this Agreement
enter into any agreement which is inconsistent with the rights granted to the
Agent in this Agreement or
16
otherwise conflicts with the provisions hereof. The rights granted to the Agent
hereunder do not in any way conflict with and are not inconsistent with the
rights granted to the holders of the Company's other issued and outstanding
securities under any such agreements.
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of Agent,
which written consent may not be unreasonably withheld; provided, however, that
no amendment, modification, supplement or waiver or consent to any departure
from the provisions of Section 9 hereof shall be effective as against the Agent
unless consented to in writing by the Agent.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery:
1. If to the Agent, as follows:
TD Securities (USA) Inc.
c/o TD Securities Inc.
00 Xxxx Xxxxxx Xxxx, 0xx floor
Toronto Dominion Bank Tower
Toronto - Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxx XxXxxxxx;
Facsimile: (000) 000-0000
with a copy to:
Shearman & Sterling
Commerce Court West
000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxxx X. Xxxxx;
Facsimile: (000) 000-0000
2. If to the Company, as follows:
Golden Star Resources Ltd.
Suite 3000, 0000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx, 00000
17
Attention: General Counsel
Facsimile: (000) 000-0000
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if mailed;
when receipt is acknowledged, if telecopied; and on the next business day, if
timely delivered to an air courier guaranteeing overnight delivery.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties hereto.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AS APPLIED TO CONTRACTS
MADE AND WHOLLY PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO
THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUR OF OR RELATING TO THIS AGREEMENT.
(i) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
GOLDEN STAR RESOURCES LTD.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President, General Counsel
and Secretary
Confirmed and accepted as of
the date first above
written:
TD SECURITIES (USA) INC.
By: /s/ Xxxxx xx Xxxxx
------------------
Name: Xxxxx xx Xxxxx
Title: Vice President and Director
