EXHIBIT 1.2
U.S. AGENCY AGREEMENT
June ___, 2002
Golden Star Resources Ltd.
00000 Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxx
00000-0000
ATTENTION: XX. XXXXX X. XXXXXXXX, PRESIDENT AND CHIEF EXECUTIVE OFFICER
Dear Sir:
Golden Star Resources Ltd. (the "CORPORATION"), proposes to issue, at
the Time of Closing (as hereinafter defined), ___ units (collectively, the
"UNITS" and individually, a "UNIT") of the Corporation (the "OFFERED SECURITIES"
or the "SECURITIES"), each Unit consisting of one (1) common share (a "COMMON
SHARE") of the Corporation and one-half ( 1/2) common share purchase warrant,
each whole warrant exercisable at a price per Common Share of Cdn .$___ until
___, 2004 (each whole warrant, a "WARRANT") at an offering price of Cdn. $___
per Unit for aggregate gross proceeds of Cdn. $___. Based upon and subject to
the terms and conditions set out below, Canaccord Capital Corporation (USA) Inc.
(the "U.S. LEAD MANAGER") and BMO Xxxxxxx Xxxxx Corp. (collectively the "U.S.
AGENTS" and, individually, a "U.S. AGENT") hereby propose to offer the Offered
Securities for sale, as agents of the Corporation, on the best efforts basis, in
the manner contemplated in this Agreement. The offering of the Offered
Securities by the Corporation pursuant to this U.S. Agreement is hereinafter
referred to as the "OFFERING".
It is understood and agreed to by all parties that the Corporation is
concurrently entering into an agreement (the "CANADIAN UNDERWRITING AGREEMENT")
providing for the sale by the Corporation of ___ Units in Canada, through
arrangements with Canaccord Capital Corporation and BMO Xxxxxxx Xxxxx Inc.
(together, the "CANADIAN UNDERWRITERS"). Anything herein or therein to the
contrary notwithstanding, the closing under this Agreement is expressly
conditional on the closing of under the Canadian Underwriting Agreement. Two
forms of prospectus are to be used in connection with the offering and sale of
the Securities contemplated by the foregoing, one relating to the Securities
hereunder and the other related to the Securities sold by the Canadian
Underwriters. The latter form of prospectus will be identical to the former
except for the addition of certain pages as included in the U.S. Registration
Statement and amendments thereto.
The Corporation shall pay to the U.S. Lead Manager, on behalf of the
U.S. Agents, a fee (the "UNDERWRITING FEE") at the Time of Closing equal to Cdn.
$___ per Offered Security sold pursuant to the terms of this U.S. Agreement
(being 5.5% of the issue price per Offered Security) in consideration of the
services to be rendered by the U.S. Agents in connection with the
- 2 -
Offering. Such services shall include, without limitation: (i) acting as
financial advisors to the Corporation in the preparation of documentation
relating to the sale of the Securities; (ii) forming and managing banking,
selling and other groups for the sale of the Securities; (iii) distributing the
Securities to the public both directly and through other registered dealers and
brokers; (iv) assisting the Corporation in connection with the preparation and
finalization of the U.S. Preliminary Prospectus, the U.S. Prospectus (each as
hereinafter defined) and the Canadian forms of such prospectuses, qualifying the
distribution of, or registering, as the case may be, the Securities; (v)
performing administrative work in connection with these matters; and (vi) all
other services arising out of the agreement resulting from the Corporation's
acceptance of this offer.
In addition to the Underwriting Fee, in return for the U.S. Agents'
services, the Corporation will issue to the U.S. Agents on the Closing Date a
number of warrants equal to 5.5% of the number of Offered Securities sold
pursuant to the Offering (the "AGENTS' WARRANTS"). The Agents' Warrants shall be
exercisable by the Agents at a price of Cdn. $___ [EQUAL TO 120% OF THE MARKET
PRICE AT THE DATE OF OFFERING] per Agents' Warrants for a period beginning one
year following the Closing Date and ending three years following the Closing
Date. Each Agents' Warrant will be exercisable into one Common Share.
The U.S. Agents and the Corporation acknowledge that Schedule A,
Schedule B and Schedule C form a part of this U.S. Agreement.
The following are the terms and conditions of the agreement between the
Corporation and the U.S. Agents:
SECTION 1 DEFINITIONS AND INTERPRETATION
(1) In this U.S. Agreement:
"BUSINESS DAY" means any day other than a Saturday, Sunday or statutory
or civic holiday in the City of Toronto, Ontario and the City of New
York, New York;
"CANADIAN SECURITIES LAWS" means, collectively, all applicable
securities laws of each of the Qualifying Provinces and the respective
rules and regulations under such laws, together with applicable
published policy statements, notices and orders of the securities
regulatory authorities in the Qualifying Provinces;
"EXCHANGES" means the Toronto Stock Exchange ("TSX") and the American
Stock Exchange ("AMEX");
"INTER-DEALER AGREEMENT" means that certain inter-dealer agreement,
dated the date hereof, between the Canadian Underwriters and the U.S.
Agents;
"MATERIAL SUBSIDIARIES" means the entities set out in Schedule A in
which the Corporation holds the types and percentages of securities or
other ownership interests therein set forth;
- 3 -
"QUALIFYING PROVINCES" means the provinces of Canada in which the
Corporation has filed a Canadian preliminary short form prospectus and a
(final) short form prospectus in respect to the Securities to be sold by
the Canadian Underwriters in Canada;
"SEC" means the United States Securities and Exchange Commission;
"STOCK OPTION PLANS" means the stock option plans of the Corporation
approved by shareholders of the Corporation, as constituted on the date
hereof;
"TIME OF CLOSING" has the meaning ascribed thereto in Section 10(1)
hereof;
"UNITED STATES" means the United States of America, its territories and
possessions, any state of the United States, the District of Columbia,
and the areas subject to the jurisdiction of the United States of
America;
"U.S. EXCHANGE ACT" means the United States Securities Exchange Act of
1934, as amended;
"U.S. SECURITIES ACT" means the United States Securities Act of 1933, as
amended;
"U.S. SECURITIES LAWS" means the applicable blue sky or securities
legislation in the United States, together with the U.S. Exchange Act
and the U.S. Securities Act and the rules and regulations of the SEC and
the applicable state securities regulatory authorities thereunder; and
"WARRANT INDENTURE" means the warrant indenture to be entered into
between the Corporation and CIBC Mellon Trust Company, as warrant agent,
providing for the creation and issue of the Warrants.
(2) The division of this Agreement into sections, subsections, paragraphs
and other subdivisions and the insertion of headings are for convenience
of reference only and shall not affect the construction or
interpretation of this Agreement. Unless something in the subject matter
or context is inconsistent therewith, references herein to sections,
subsections, paragraphs and other subdivisions are to sections,
subsections, paragraphs and other subdivisions of this U.S. Agreement.
(3) Except as otherwise indicated, all amounts expressed herein in terms of
money refer to lawful currency of the United States and all payments to
be made hereunder shall be made in such currency.
SECTION 2 COMPLIANCE WITH SECURITIES LAWS
The Corporation represents and warrants to, and covenants and agrees
with, each of the U.S. Agents that:
(1) A registration statement on Form S-3 (File No. 333_____) (the "INITIAL
REGISTRATION STATEMENT"), including the exhibits thereto, and including
the Incorporated Documents (as defined below) in respect of the
Securities has been filed with the SEC in compliance with the U.S.
Securities Act.
- 4 -
(2) The Initial Registration Statement and any post-effective amendment
thereto, each in the form heretofore delivered by the Corporation, and,
excluding exhibits thereto but including all documents incorporated by
reference in the prospectus contained therein, delivered by the
Corporation, has been declared effective by the SEC in such form; and no
stop order suspending the effectiveness of the Initial Registration
Statement has been issued and no proceeding for that purpose has been
initiated or threatened by the SEC (any preliminary prospectus included
in the Initial Registration Statement is hereinafter called a "U.S.
PRELIMINARY PROSPECTUS"); the various parts of the Initial Registration
Statement, including all exhibits thereto and including (A) the
information contained in the form of final prospectus timely filed with
the SEC pursuant to 424(b) under the U.S. Securities Act and deemed by
virtue of Rule 430A under the U.S. Securities Act to be part of the
Initial Registration Statement at the time it was declared effective,
and (B) the documents incorporated by reference in the prospectus
contained in the Initial Registration Statement at the time such part of
the Initial Registration Statement became effective, as amended at the
time such part of the Initial Registration Statement became effective,
are hereinafter collectively referred to as the "U.S. REGISTRATION
STATEMENT"; such final prospectus is hereinafter called the "U.S.
PROSPECTUS"; any reference herein to any U.S. Preliminary Prospectus or
the U.S. Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form
S-3 under the U.S. Securities Act (the "INCORPORATED DOCUMENTS"), as of
the date of such U.S. Preliminary Prospectus or the U.S. Prospectus
shall be deemed to refer to and include any documents filed after the
date of such U.S. Preliminary Prospectus or U.S. Prospectus, as the case
may be, under the U.S. Exchange Act, and incorporated by reference in
such U.S. Preliminary Prospectus or U.S. Prospectus, as the case may be.
(3) No order preventing or suspending the use of any U.S. Preliminary
Prospectus has been issued by the SEC, and each U.S. Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the U.S. Securities Act and the rules
and regulations of the SEC thereunder, and did not contain 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, in
light of the circumstances under which they were made, not misleading.
(4) The documents incorporated by reference in the U.S. Prospectus, when
they became effective or were filed with the SEC, as the case may be,
conformed in all material respects to the requirements of the U.S.
Securities Act or the U.S. Exchange Act, as applicable, and the rules
and regulations of the SEC thereunder, and none of such documents
contained 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, in light of the circumstances under which they were
made, not misleading; and any further documents so filed and
incorporated by reference in the U.S. Prospectus or any further
amendment or supplement thereto, when such documents became effective or
are filed with the SEC, as the case may be, will conform in all material
respects to the requirements of the U.S. Securities Act or the U.S.
Exchange Act, as applicable, and the rules and regulations of the SEC
thereunder, and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary
- 5 -
to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(5) The U.S. Registration Statement and any U.S. Preliminary Prospectus, at
the time each was filed with the SEC pursuant to Rule 424(b) under the
U.S. Securities Act and when delivered to the U.S. Agents for their use
in marketing the Securities conform, and the U.S. Prospectus at the time
it is filed with the SEC pursuant to Rule 424(b) under the U.S.
Securities Act, when delivered to the U.S. Agents for their use in
making confirmations of sales of the Securities, and at the Closing Date
(as defined herein) will not and any further amendments or supplements
to the U.S. Registration Statement or the U.S. Prospectus will conform,
in all material respects to the requirements of the U.S. Securities Act
and the rules and regulations of the SEC thereunder and do not and will
not, as of the applicable effective date as to the U.S. Registration
Statement and any amendment thereto and as of the applicable filing date
as to the U.S. Prospectus and any amendment or supplement thereto,
contain 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.
(6) The U.S. Prospectus, and any supplements thereto, shall have been filed
with the SEC within the time period prescribed for such filing by Rule
424(b) under the U.S. Securities Act; and all requests for additional
information on the part of the SEC in connection with the U.S.
Registration Statement shall have been complied with to the reasonable
satisfaction of the U.S. Agents.
SECTION 3 DUE DILIGENCE
Prior to the Time of Closing, and, if applicable, prior to the filing of
any amendment to the U.S. Prospectus, including on any intervening weekends, the
Corporation shall allow the U.S. Agents to participate fully in the preparation
of such documents and shall allow the U.S. Agents to conduct all due diligence
that the U.S. Agents may require to conduct in order to fulfil their obligations
as agents and in order to enable the U.S. Agents responsibly to execute any
certificate required to be executed by them, provided, however, that this
Section 3 is not intended to operate as a condition of the Offering.
SECTION 4 CONDITIONS OF THE OFFERING
The U.S. Agents' obligations under this Agreement are conditional upon
and subject to:
(1) the U.S. Agents receiving at the Time of Closing favourable legal
opinions to be delivered to the U.S. Agents by Field Xxxxxxxx Perraton
LLP, Canadian counsel to the Corporation (who may rely, to the extent
appropriate in the circumstances, on the opinions of local counsel
acceptable to counsel to the Corporation as to the qualification or the
registration of the Securities for sale to the public in Canada and the
United States and as to other matters governed by the laws of the
Qualifying Provinces other than the provinces in which they are
qualified to practice and may rely, to the extent appropriate in the
circumstances, as to matters of fact on certificates of officers, public
and exchange officials or of the auditors or transfer agent of the
Corporation) and Stoel Rives LLP, the Corporations' U.S. counsel dated
the Closing Date, addressed to the U.S. Agents and
- 6 -
their counsel, as to those matters set forth in Schedule B hereto, dated
the Closing Date, and in form and substance satisfactory to the U.S.
Agents and their counsel;
(2) the U.S. Agents having received the comfort letter referred to in
Section 9(1)(a);
(3) the U.S. Agents having received a comfort letter, dated the Closing
Date, in form and substance satisfactory to the U.S. Agents, acting
reasonably, bringing forward to a date not more than two business days
prior to the Closing Date the information contained in the comfort
letter referred to in Section 9(1)(a);
(4) the U.S. Agents receiving at the Time of Closing a legal opinion (or
opinions), in form and substance satisfactory to the U.S. Agents and
their counsel, addressed to the U.S. Agents and their counsel from local
counsel to the Corporation as to mining title matters with respect to
each of the Material Resource Properties (as hereinafter defined);
(5) the U.S. Agents receiving at the Time of Closing a legal opinion (or
opinions) dated the Closing Date, in form and substance satisfactory to
the U.S. Agents and their counsel, addressed to the U.S. Agents and
their counsel from local counsel to the Corporation, stating that each
of Caystar Holdings, Bogoso Holdings, Bogoso Gold Limited and Wasford
Holdings has been duly created and is validly existing under the laws of
the jurisdiction in which it was incorporated, amalgamated or continued
and that the Corporation or a Material Subsidiary owns all of the issued
and outstanding share capital of each such corporation, except as set
out in Schedule A, in each case addressed to the U.S. Agents and their
counsel, dated the Closing Date, and in form and substance satisfactory
to the U.S. Agents and their counsel;
(6) at the Time of Closing, there having been no material adverse change in
the business, affairs, operations, assets, liabilities or financial
condition of the Corporation on a consolidated basis since the date
hereof;
(7) the Canadian Underwriting Agreement having been executed by the
Corporation and the Canadian Underwriters, and none of the Canadian
Underwriters shall have relied upon any rights of termination in the
Canadian Underwriting Agreement to terminate the offering of the
Securities in Canada and all conditions to the Canadian Underwriters
obligations thereunder having been waived or satisfied;
(8) the Corporation delivering a certificate signed on behalf of the
Corporation by the Chief Executive Officer of the Corporation and the
Chief Financial Officer of the Corporation, addressed to the U.S. Agents
and dated the Closing Date, in a form satisfactory to the U.S. Agents
and their counsel, certifying for and on behalf of the Corporation and
not in their personal capacities that, to the actual knowledge of the
persons signing such certificate, after having made due inquiry:
(a) the Corporation has complied in all respects with all covenants
and satisfied all terms and conditions of this U.S. Agreement on
its part to be complied with and satisfied at or prior to the
Time of Closing on the Closing Date;
- 7 -
(b) no order, ruling or determination having the effect of ceasing
or suspending trading in any securities of the Corporation or
prohibiting the sale of the Securities or any of the
Corporation's issued securities has been issued and no
proceeding for such purpose is pending or, to the knowledge of
such officers, threatened; and
(c) all of the representations and warranties made by the
Corporation in this U.S. Agreement are true and correct as of
the Time of Closing with the same force and effect as if made at
and as of the Time of Closing after giving effect to the
transactions contemplated hereby;
(9) the National Association of Securities Dealers, Inc. ("NASD") has
confirmed that it has not raised any objection with respect to the
fairness and reasonableness of the underwriting terms and arrangements
related to the offering;
(10) the U.S. Agents shall have received favourable opinions of Stikeman
Elliott and Xxxxxx & Xxxxxxx LLP, their Canadian and U.S. counsel,
respectively, as to such matters as the U.S. Agents shall reasonably
request; and
(11) the U.S. Agents receiving at the Time of Closing such further
certificates, opinions of counsel and other documentation from the
Corporation as may be contemplated herein or as the U.S. Agents or their
counsel may reasonably require.
SECTION 5 COVENANTS OF THE U.S. AGENTS
The U.S. Agents:
(a) shall offer or arrange the offer of the Securities for sale to
the public, directly and through other investment dealers and
brokers (the U.S. Agents, together with such other investment
dealers and brokers, are referred to herein as the "SELLING
FIRMS"), only as permitted by and in compliance with all
relevant laws and regulatory requirements (including under the
U.S. Securities Act), upon the terms and conditions set forth in
the U.S. Prospectus and in this U.S. Agreement and will require
each Selling Firm to so agree;
(b) shall not solicit offers to purchase or sell the Securities so
as to require registration thereof or the filing of a prospectus
or similar document with respect thereto under the laws of any
jurisdiction other than the United States, and will require each
Selling Firm to agree with the U.S. Agents not to so solicit or
sell. In this connection, the U.S. Agents agree that they will
not offer or sell any of the Securities constituting a part of
their allotment within Canada except, if applicable, through the
Canadian Underwriters on the terms and conditions set forth in
the Canadian Underwriting Agreement and the Inter-Dealer
Agreement and in compliance with the Canadian Securities Laws;
(c) agree that if they offer to sell or sell any Securities in
jurisdictions other than the United States and Canada (which may
include Europe), such offers and sales shall be effected in
accordance and compliance with the applicable laws of such
jurisdictions and shall be effected in such manner so as not to:
(i) require
- 8 -
registration of the Securities, or the filing of a prospectus or
other document with respect thereto; or (ii) subject the
Corporation to any continuous disclosure or similar reporting
requirements under the laws of any jurisdiction outside the
provinces of Canada or the United States;
(d) shall use all reasonable efforts to complete and to cause the
other Selling Firms to complete the distribution of the
Securities as soon as practicable;
(e) shall notify the Corporation when, in their opinion, the U.S.
Agents and the other Selling Firms have ceased distribution of
the Securities; and
(f) shall comply with all U.S. Securities Laws with respect to the
use of "green sheets" and marketing materials.
(2) Notwithstanding the foregoing, no U.S. Agent shall be liable to the
Corporation with respect to any other U.S. Agent under this Section 5.
SECTION 6 REPRESENTATIONS AND WARRANTIES OF THE CORPORATION
(1) The Corporation hereby represents and warrants to the U.S. Agents,
intending that the same may be relied upon by the U.S. Agents, that:
(a) each of the Corporation and the Material Subsidiaries has been
duly incorporated, continued or amalgamated and organized and is
validly existing under the laws of its jurisdiction of
incorporation, continuance or amalgamation has all requisite
corporate power and authority to carry on its business as now
conducted and as contemplated by the U.S. Prospectus, and to
own, lease and operate its properties and assets, and the
Corporation has all requisite power and authority to carry out
its obligations under this U.S. Agreement;
(b) the only major operating subsidiaries of the Corporation are
listed in Schedule A;
(c) the Corporation or one of its Material Subsidiaries owns the
issued and outstanding shares of each of the Material
Subsidiaries as set out in Schedule A, in each case free and
clear of any pledge, lien, security interest, charge, claim or
encumbrance;
(d) upon completion of the acquisition of the Wassa property as
described in the U.S. Preliminary Prospectus and the U.S.
Prospectus, Wasford Holdings will own 90% of the issued and
outstanding shares of Wexford Goldfields Limited free and clear
of any pledge, lien, security interest, charge, claim or
encumbrance, other than a security interest in such shares held
by Bayerische Hypo-und Vereinsbank AG, Dresdner Bank AG, Fortis
Bank (Nederland) N.V. and Standard Bank London Limited (the
"SECURED BANKS"), which banks are providing funding in respect
of the acquisition;
(e) the Corporation meets the requirement for the use of Form S-3
under the U.S. Securities Act;
- 9 -
(f) no order, ruling or determination having the effect of ceasing,
suspending or restricting trading in any securities of the
Corporation or the sale of the Common Shares or Warrants
comprised in the Securities has been issued and no proceedings,
investigations or inquiries for such purpose are pending or
threatened;
(g) the Corporation's Common Shares are posted and listed for
trading on the Exchanges and the Corporation is not in default
of any of the listing requirements of the Exchanges;
(h) other than options under the Corporation's Stock Option Plans,
the Corporation is not a party to and has not entered into any
agreement, warrant, option, right or privilege reasonably
capable of becoming an agreement, for the purchase, subscription
or issuance of any Common Shares or securities convertible into
or exchangeable for Common Shares other than as set out in
Schedule C;
(i) as at the date hereof, the authorized share capital of the
Corporation consists of an unlimited number of Common Shares and
an unlimited number of First Preferred shares, of which ___
Common Shares and no First Preferred shares are issued and
outstanding;
(j) the Corporation and each of the Material Subsidiaries have
conducted and are conducting their respective businesses in
compliance with all applicable laws, rules, regulations,
tariffs, orders and directives, including without limitation,
all laws, regulations and statutes relating to mining and to
mining claims, concessions or leases, and environmental, health
and safety laws, rules, regulations, or policies or other lawful
requirements of any governmental or regulatory bodies having
jurisdiction over the Corporation and the Material Subsidiaries
in each jurisdiction in which the Corporation or the Material
Subsidiaries carries on their respective businesses, and each of
the Corporation and the Material Subsidiaries holds all
certificates, authorities, permits, licenses, registrations and
qualifications (collectively, the "AUTHORITIES") in all
jurisdictions in which each carries on its business and which
are necessary or desirable to carry on their respective
businesses as now conducted and to the best of the Corporation's
knowledge, information and belief all the Authorities are valid
and existing and in good standing and none of the Authorities
contain any burdensome term, provision, condition or limitation
which has or is likely to have any material adverse effect on
the business of the Corporation and the Material Subsidiaries
(taken as a whole) as now conducted or as proposed to be
conducted, and neither the Corporation nor any of the Material
Subsidiaries has received any notice of proceedings relating to
the revocation or modification of any of the Authorities which,
singly or in the aggregate, if the subject of an unfavourable
decision, ruling or finding, would materially adversely affect
the business, operations, financial condition, or income of the
Corporation or the Material Subsidiaries (taken as a whole) or
any notice of the revocation or cancellation of, or any
intention to revoke or cancel, any of the mining claims,
concessions or leases comprising:
- 10 -
(i) the Bogoso property;
(ii) the Prestea property;
(iii) the Xxxx Xxxxxx property;
(iv) the Yaou and Dorlin properties; and
(v) the St. Elie property;
(each as described in the Form 10-K of the Corporation dated
March 25, 2002, and together with the Wassa property, also as
described in the Form 10-K of the Corporation dated March 25,
2002, collectively referred to herein, the "RESOURCE PROPERTIES"
and the Bogoso property and the Prestea property and the Wassa
property collectively being referred to herein as the "MATERIAL
RESOURCE PROPERTIES");
(k) neither the Corporation nor any Material Subsidiaries has
received any notice of the revocation or cancellation of, or any
intention to revoke or cancel, any of the mining claims,
concessions or leases comprising the Wassa property;
(l) the Corporation and each of its Material Subsidiaries have good
and marketable title to all assets owned by them free and clear
of all liens, charges and encumbrances, other than a security in
the shares of Wexford Goldfields Limited that will be held by
the Secured Banks, which banks are providing funding in respect
of the acquisition of Wexford Goldfields Limited, upon
completion of such acquisition;
(m) all interests in the Resource Properties are owned or held by
the Corporation or its Material Subsidiaries as owner or lessee
thereof, are so owned with good and marketable title or are so
leased with good and valid title, are in good standing, are
valid and enforceable, are free and clear of any liens, charges
or encumbrances and no royalty is payable in respect of any of
them, except as set out in the U.S. Prospectus or the
Incorporated Documents; no other property rights are necessary
for the conduct or intended conduct of the Corporation's or the
Material Subsidiaries' business and there are no restrictions on
the ability of the Corporation or the Material Subsidiaries to
use, transfer or otherwise exploit any such property rights,
except as set out in the U.S. Prospectus or the Incorporated
Documents;
(n) all interests in the Wassa property are owned, leased or held by
Wexford Goldfields Limited as owner or lessee thereof, are so
owned with good and marketable title or are so leased with good
and valid title, are in good standing, are valid and
enforceable, are free and clear of any liens, charges or
encumbrances, other than a security interest in the shares of
Wexford Goldfields Limited that will be held by the Secured
Banks, which banks are providing funding in respect of the
acquisition of Wexford Goldfields Limited, upon completion of
the of such acquisition and no royalty is payable in respect of
any
- 11 -
of them, except as set out in the U.S. Prospectus or the
Incorporated Documents; no other property rights are necessary
for the conduct or intended conduct of business in respect of
the Wassa property and there are no restrictions on the ability
of Wexford Goldfields Limited to use, transfer or otherwise
exploit any such property rights, except as set out in the U.S.
Prospectus or the Incorporated Documents;
(o) (A) the Corporation and its Material Subsidiaries are in
compliance with all terms and provisions of all contracts,
agreements, indentures, leases, instruments and licences in
connection with the conduct of its business and (B) all such
contracts, agreements, indentures, leases, policies, instruments
and licences are valid and binding in accordance with their
terms and in full force and effect;
(p) to the best of the Corporation's knowledge, information and
belief none of the real property (and the buildings constructed
thereon) in which the Corporation or any of the Material
Subsidiaries has a direct or indirect interest, whether
leasehold or fee simple or otherwise (the "REAL PROPERTY"), or
upon or within which it has operations, is subject to any
judicial or administrative proceeding alleging the violation of
any federal, provincial, state or municipal environmental,
health or safety statute or regulation, domestic or foreign, or
is subject to any investigation concerning whether any remedial
action is needed to respond to a release of any Hazardous
Material (as defined below) into the environment. Neither the
Corporation nor any Material Subsidiary nor any occupier of the
Real Property, has filed any notice under any federal,
provincial, state or municipal law, domestic or foreign,
indicating past or present treatment, storage or disposal of a
Hazardous Material. Except in compliance with applicable
environmental laws, none of the Real Property has at any time
been used by the Corporation or a Material Subsidiary or, to the
best of the Corporation's knowledge, information and belief by
any other occupier, as a waste storage or waste disposal site.
The Corporation, on a consolidated basis, has no contingent
liability of which it has knowledge or reasonably should have
knowledge, information and belief in connection with any release
of any Hazardous Material on or into the environment from any of
the Real Property or operations thereon. Neither the Corporation
nor any Material Subsidiary nor, to the best of the
Corporation's knowledge, any occupier of the Real Property,
generates, transports, treats, processes, stores or disposes of
any waste on any of the Real Property in contravention of
applicable federal, provincial, state or municipal laws or
regulations enacted for the protection of the natural
environment (including, without limitation, ambient air, surface
water, ground water, land surface or subsurface strata) or human
health or wildlife. No underground storage tanks or surface
impoundments containing a petroleum product or Hazardous
Material are located on any of the Real Property in
contravention of applicable federal, provincial, state or
municipal laws or regulations, domestic or foreign, enacted for
the protection of the natural environment (including, without
limitation, ambient air, surface water, ground water, land
surface or subsurface strata), human health or wildlife. For the
purposes of this Section 6(1)(p), "HAZARDOUS MATERIAL" means any
contaminant,
- 12 -
chemical, pollutant, subject waste, hazardous waste, deleterious
substance, industrial waste, toxic matter or any other substance
that when released into the natural environment (including,
without limitation, ambient air, surface water, ground water,
land surface or subsurface strata) is likely to cause, at some
immediate or future time, harm or degradation to the natural
environment (including, without limitation, ambient air, surface
water, ground water, land surface or subsurface strata) or risk
to human health and, without restricting the generality of the
foregoing, includes any contaminant, chemical, pollutant,
subject waste, deleterious substance, industrial waste, toxic
matter or hazardous waste as defined by applicable federal,
provincial, state or municipal laws or regulations enacted for
the protection of the natural environment (including, without
limitation, ambient air, surface water, ground water, land
surface or subsurface strata), or human health or wildlife;
(q) except as disclosed in the U.S. Prospectus or the Incorporated
Documents, the Corporation and each of its Material Subsidiaries
maintain appropriate insurance against loss of, or damage to,
their assets by all insurable risks on a repair, reinstatement
or replacement cost basis, and all of the policies in respect of
such insurance coverage are in good standing in all respects and
not in default;
(r) the consolidated audited financial statements of the Corporation
for its fiscal years ended December 31, 1999, December 31, 2000
and December 31, 2001 and the unaudited interim financial
statements of the Corporation for the quarter ended March 31,
2002 (collectively the "CORPORATION'S FINANCIAL STATEMENTS"),
copies of which are incorporated by reference in the U.S.
Preliminary Prospectus and the U.S. Prospectus, including any
reconciliation of financial statements prepared in accordance
with generally accepted accounting principles in Canada with
generally accepted accounting principles in the United States,
are true and correct in every material respect and present
fairly and accurately the financial position and results of the
operations of the Corporation on a consolidated basis for the
periods then ended and the Corporation's Financial Statements
have been prepared in accordance with generally accepted
accounting principles in Canada applied on a consistent basis,
and comply as to form in all material respects with the
applicable accounting requirements of the U.S. Securities Act
and the U.S. Exchange Act, as applicable, and the related
published rules and regulations thereunder;
(s) the execution and delivery of and the performance by the
Corporation of this U.S. Agreement and the Canadian Underwriting
Agreement and the consummation of the transactions contemplated
hereby and thereby it, including the issuance and sale of the
Common Shares comprised in the Securities, the creation,
issuance and sale of the Warrants comprised in the Securities,
the creation and issuance of the Agents' Warrants have been
authorized by all necessary action on the part of the
Corporation;
(t) this Agreement has been duly executed and delivered by the
Corporation and is a legal, valid and binding obligation of, and
is enforceable against the
- 13 -
Corporation in accordance with its terms (subject to bankruptcy,
insolvency or other laws affecting the rights of creditors
generally, the availability of equitable remedies and the
qualification that rights to indemnity and waiver of
contribution may be contrary to public policy);
(u) except as disclosed in the U.S. Prospectus or the Incorporated
Documents, as of the date hereof: (A) there has been no material
change in the business, affairs, operations, assets, liabilities
or financial condition of the Corporation on a consolidated
basis since March 31, 2002; (B) no current reports or other
documents have been filed on a confidential basis with the SEC;
(C) there has been no transaction entered into by the
Corporation which is material to the Corporation; (D) the
Corporation and its Material Subsidiaries, on a consolidated
basis, have not incurred any material liability or obligation,
indirect, direct or contingent, not in the ordinary course of
business, nor entered into any material transaction or agreement
not in the ordinary course of business; and (E) there has been
no dividend or distribution of any kind declared, paid or made
by the Corporation or, except for dividends paid to the
Corporation or its Material Subsidiaries, any of its Material
Subsidiaries, on any class of capital stock or repurchase or
redemption by the Corporation or any of its Material
Subsidiaries of any class of capital stock;
(v) the directors and officers of the Corporation and their
compensation arrangements with the Corporation, whether as
directors, officers or employees of the Corporation, are as
disclosed in the U.S. Prospectus or in the Incorporated
Documents if required to be so disclosed;
(w) all of the material contracts and agreements of the Corporation
and of its Material Subsidiaries not made in the ordinary course
of business (collectively the "MATERIAL CONTRACTS") have been
disclosed in the Incorporated Documents;
(x) all tax returns, reports, elections, remittances and payments of
the Corporation and of its Material Subsidiaries required by law
to have been filed or made in any applicable jurisdiction, have
been filed (or are in the process of being prepared for filing,
which delayed filing will not have an adverse effect on the
Corporation or any of its Material Subsidiaries) or made (as the
case may be), other than for taxes being contested in good
faith, and, to the knowledge of the Corporation, are
substantially true, complete and correct and all taxes of the
Corporation and of its Material Subsidiaries, other than for
taxes being contested in good faith, have been paid or accrued
in the Corporation's Financial Statements;
(y) the Corporation is not and, after giving effect to the offering
and sale of the Securities, will not be an "investment company"
or an entity "controlled" by an "investment company" within the
meaning of the United States Investment Company Act of 1940, as
amended;
(z) there is no material action, suit, proceeding, investigation or
judgment pending, threatened or outstanding against or affecting
the Corporation or any Material
- 14 -
Subsidiary (or their respective officers and directors) at law
or in equity or before or by any federal, provincial, state,
municipal or other governmental department, commission, board or
agency, domestic or foreign, which in any way materially
adversely affects or may materially adversely affect the
business, operations or condition of the Corporation or any
Material Subsidiary (financial or otherwise) or its property or
assets or which questions or may question the validity of the
creation, issuance or sale, of the Securities or any action
taken or to be taken by the Corporation or any Material
Subsidiary pursuant to or in connection with this U.S. Agreement
or any other material contract to which the Corporation or any
Material Subsidiary is a party, as the case may be;
(aa) except as have been made or obtained prior to Closing, under the
laws of the Qualifying Provinces and the United States, no
consent, approval, authorization, order, filing, registration or
qualification of or with any court, governmental agency or body
or regulatory authority is required for the creation, issue,
sale and delivery (as the case may be) of the Securities or the
Agents' Warrants or the consummation by the Corporation of the
transactions contemplated in this U.S. Agreement;
(bb) all necessary corporate action has been taken or will have been
taken prior to the Time of Closing by the Corporation so as to
validly issue and sell the Common Shares comprised in the
Securities, to validly create and issue the Agents' Warrants to
the U.S. Agents and to validly create, issue and sell the
Warrants comprised in the Securities and upon receipt by the
Corporation of the purchase price as consideration for the issue
of the Securities, the Common Shares comprised in the Securities
will be validly issued and outstanding as fully paid and
non-assessable shares of the Corporation;
(cc) the attributes of the Securities conform in all respects with
the description thereof contained in the U.S. Registration
Statement;
(dd) (i) neither the Corporation nor any of its Material Subsidiaries
nor, any employee or agent of the Corporation or any Material
Subsidiary, has made any unlawful contribution or other payment
to any official of, or candidate for, any federal, state,
provincial or foreign office, or failed to disclose fully any
contribution, in violation of any law, or (ii) made any payment
to any foreign, United States or state governmental officer or
official, or other person charged with similar public or
quasi-public duties, other than payments required or permitted
by the laws of the United States;
(ee) The Corporation and each of its Material Subsidiaries maintains
a system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in
accordance with management's general or specific authorizations;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles in Canada and to maintain asset
accountability; (iii) access to assets is permitted only in
accordance with management's general or specific authorization;
and (iv) the recorded accountability for assets is compared with
- 15 -
the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences;
(ff) Neither the Corporation nor any of the Company's officers,
directors or affiliates has taken, and at the Closing Date will
have taken, directly or indirectly, any action which has
constituted, or might reasonably be expected to constitute, the
stabilization or manipulation of the price of sale or resale of
the Securities;
(gg) The Corporation has timely and properly filed (i) with the SEC
all reports and other documents required to have been filed by
it with the SEC pursuant to the U.S. Securities Act and the
rules and regulations, and (b) all reports or other documents
required to have been filed by it with the securities commission
or similar regulatory body of each province in Canada, the
Toronto Stock Exchange or any other applicable Canadian
governmental authorities. True and complete copies of all such
reports and other documents have been delivered to the U.S.
Agents;
(hh) Neither the Corporation nor any Material Subsidiary (x) was a
personal holding company within the meaning of Section 542 of
the Internal Revenue Code of 1986, as amended (the "CODE") (a
"PHC"), a foreign personal holding company with the meaning of
Section 542 of the Code (an "FPHC"), or a controlled foreign
corporation with the meaning of Section 957 of the Code (a
"CFC") for its taxable year ended December 31, 1995 or for any
previous taxable year, or (y) expects that it will constitute a
PHC, a FPHC or a CFC for its current taxable year ending
December 31, 2001;
(ii) The Corporation (x) was not a passive foreign investment company
(a "PFIC") within the meaning of section 1296 of the Code for
its taxable year ended December 31, 2001 or for any previous
taxable year and (y) expects that it will not constitute a PFIC
for its current taxable year ending December 31, 2002;
(jj) CIBC Mellon Trust Company, at its principal office in Vancouver,
has been duly appointed as the transfer agent and registrar for
the Common Shares and the Warrants; and
(kk) the forms of the certificates representing the Warrants have
been duly approved by the Corporation and comply with the
provisions of the Canada Business Corporations Act.
(2) The representations and warranties made by the Corporation to the
Canadian Underwriters in the Canadian Underwriting Agreement are hereby
incorporated by reference, and shall have the same effect as though they
were made to the U.S. Agents under this Agreement.
(3) The representations and warranties of the Corporation contained in this
Agreement shall be true at the Time of Closing as though they were made
at the Time of Closing and they shall survive the completion of the
transactions contemplated under this
- 16 -
Agreement and remain in full force and effect thereafter for the benefit
of the U.S. Agents for a period of four years from the Closing Date.
SECTION 7 REPRESENTATIONS AND WARRANTIES OF THE U.S. AGENTS
(1) Each U.S. Agent hereby severally, and not jointly, represents and
warrants that:
(a) it is, and will remain so, until the completion of the Offering,
appropriately registered under applicable U.S. Securities Laws
so as to permit it to lawfully fulfil its obligations hereunder
and it is, and will remain so, until the completion of the
Offering, a member in good standing of the National Association
of Securities Dealers, Inc.; and
(b) it has good and sufficient right and authority to enter into
this U.S. Agreement and complete its transactions contemplated
under this U.S. Agreement on the terms and conditions set forth
herein.
(2) The representations and warranties of each of the U.S. Agents contained
in this U.S. Agreement shall be true at the Time of Closing as though
they were made at the Time of Closing and they shall not survive the
completion of the transactions contemplated under this U.S. Agreement
but shall terminate on the completion of the Offering.
SECTION 8 COVENANTS OF THE CORPORATION
(1) The Corporation covenants with the U.S. Agents that:
(a) during the period from the date hereof to the completion of the
distribution of the Securities, the Corporation will promptly
advise the U.S. Agents in writing of the full particulars any
material change in the business, affairs, operations, assets,
liabilities or financial condition of the Corporation on a
consolidated basis or any material change in any statement
contained in the U.S. Prospectus, as such documents exist
immediately prior to such change, which change is, or may be, of
such nature as would result in any of such documents, as they
exist immediately prior to such change, containing an untrue
statement of a material fact or an omission to state therein a
material fact that is required to be stated or that is necessary
to make the statements therein not misleading in light of the
circumstances in which they were made or which would result in
any of such documents, as they exist immediately prior to such
change not complying with the U.S. Securities Act. The
Corporation will promptly prepare and file with the SEC an
amendment to the U.S. Registration Statement or supplement to
the U.S. Prospectus which in the opinion of the U.S. Agents,
acting reasonably, may be necessary or advisable to correct such
untrue or misleading statement or omission. The Corporation
shall in good faith discuss with the U.S. Agents any change in
circumstances (actual, anticipated, contemplated or threatened)
which is of such a nature that there may be a reasonable doubt
as to whether written notice need be given to the U.S. Agents
under the provisions of this Section 8(1)(a);
- 17 -
(b) the Corporation will deliver without charge to the U.S. Agents,
as soon as practicable, and in any event no later than ___, 2002
in the case of the U.S. Prospectus, and thereafter from time to
time during the distribution of the Securities, in such cities
as the U.S. Agents shall notify the Corporation, as many
commercial copies of each of the U.S. Preliminary Prospectus and
the U.S. Prospectus, respectively (and in the case of an
amendment or supplement, such amendment or supplement) as the
U.S. Agents may reasonably request for the purposes contemplated
by the U.S. Securities Laws and such delivery shall constitute
consent by the Corporation to the use by the U.S. Agents and the
Selling Firms of such documents in connection with the Offering
in the United States, subject to the provisions of applicable
U.S. Securities Laws;
(c) the Corporation shall use its best efforts to arrange that the
Common Shares forming part of the Securities are listed and
posted for trading on the TSX and the AMEX on the Closing Date,
subject only to the documentary filing requirements of each such
exchange;
(d) it will not: (i) offer, pledge, sell, contract to sell any
option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase, or
otherwise lend, transfer or dispose of, directly or indirectly,
any Common Shares or securities convertible into or exercisable
or exchangeable for Common Shares; or (ii) enter into any swap
or other arrangement that transfers, in whole or in part, any of
the economic consequences of ownership of Common Shares or such
other securities, whether any such transaction described in
clause (i) or (ii) above is to be settled by delivery of Common
Shares or such other securities, in cash or otherwise (other
than the Securities and other than in connection with the grant
or exercise of options, issuances under the Corporation's
existing Stock Option Plans or employee share purchase plan or
any other existing rights of conversion or securities issued as
consideration for an acquisition of assets or shares), for a
period ending 90 days after the closing of the Offering without
the prior written consent of the U.S. Lead Manager, such consent
not to be unreasonably withheld;
(e) it will apply the net proceeds from the sale of the Securities
as set forth under "Use of Proceeds" in the U.S. Prospectus;
(f) it will use its reasonable best efforts to make all necessary
arrangements with the Alternative Investment Market of the
London Stock Exchange in order that the Common Shares are listed
on that exchange within 6 months of the Closing Date; and
(g) to make generally available to its securityholders as soon as
practicable, but in any event, not later than eighteen months
after the effective date of the Registration Statement (as
defined in Rule 158(c) under the U.S. Securities Act), an
earnings statement of the Corporation and its subsidiaries
(which need not be audited) complying with Section 11(a) of the
U.S. Securities Act and the rules and regulations of the SEC
thereunder (including at the option of the Corporation, Rule
158).
- 18 -
SECTION 9 ADDITIONAL DOCUMENTS UPON FILING OF U.S. PROSPECTUS
(1) The U.S. Agents' obligations under this U.S. Agreement are conditional
upon the receipt by the U.S. Agents concurrently with the filing of the
U.S. Prospectus, of:
(a) a "long form" comfort letter dated the date of U.S. Prospectus
from the auditors of the Corporation, addressed to the U.S.
Agents and Canadian Underwriters, in form and substance
reasonably satisfactory to the U.S. Agents, relating to the
verification of the financial information and accounting data
and other numerical data of a financial nature contained in the
U.S. Prospectus and matters involving changes or developments
since the respective dates as of which specified financial
information is given in the U.S. Prospectus to a date not more
than two business days prior to the date of such letter. Such
letter shall further state that such auditors are independent
public accountants within the meaning of the U.S. Securities Act
and the appropriate rules and regulations thereof, and that
(i) in their opinion the Corporation's financial statements
examined by them and included in the U.S. Prospectus
comply in all material respects with the applicable
accounting requirements of the U.S. Securities Act and
the U.S. Exchange Act and the related published rules
and regulations;
(ii) they have performed the procedures specified by the
American Institute of Certified Accountants for a review
of interim financial information described in Statement
of Auditing Standards No. 71, on the unaudited financial
statements included or incorporated by reference in the
U.S. Registration Statement;
(iii) on the basis of the review referred to above and a
reading of the latest available financial statements of
the Corporation dated after March 31, 2002, inquiries of
officials of the Corporation who have responsibility for
the financial and accounting matters and the other
specified procedures, nothing came to their attention
that caused them to believe that:
(A) the unaudited financial statements included or
incorporated by reference in the U.S.
Registration Statement, including any
reconciliation of financial statements prepared
in accordance with generally accepted accounting
principles in Canada with generally accepted
accounting principles in the United States, do
not comply as to form in all material respects
with the requirements of the U.S. Securities Act
and the U.S. Exchange Act and the related
published rules and regulations, or that any
material modification should be made to such
unaudited financial statements for them to be in
conformity with generally accepted accounting
principals;
(B) any unaudited pro forma financial statements
included or incorporated by reference in the
U.S. Registration Statement do not comply as to
form in all material respects with the
- 19 -
requirements of the U.S. Securities Act and the
U.S. Exchange Act and the related published
rules and regulations or the pro forma
adjustments have not been properly applied to
the historical amounts in the compilation of
those statements;
(C) at the date of the latest available balance
sheet read by such auditors, or at a subsequent
specified date not more than two business days
prior to the date of the U.S. Prospectus, there
was any material change in the capital or any
increase in short term indebtedness or long-term
debt of the Corporation and its Material
Subsidiaries consolidated or, at the date of the
latest available balance sheet read by such
auditors, there was any material decrease in
consolidated net current assets or net assets as
compared with amounts shown on the latest
balance sheet included or incorporated by
reference in the U.S. Prospectus;
(D) for the period from the date of the latest
income statement included in the U.S. Prospectus
to the date of the latest available income
statement read by such auditors or at a
subsequent specified date not more than two
business days prior to the date of the U.S.
Prospectus, there were any material decreases as
compared with the corresponding period of the
previous year and with the period of
corresponding length ended the date of the
latest income statement included in the U.S.
Prospectus, in the consolidated revenue, net
operating income, or total or per share amounts
of net income,
except in all cases set forth in clauses (B) and (C)
above for changes, increases or decreases which the U.S.
Prospectus discloses have occurred or which are
described in such letter; and
(iv) they have compared specified United States and Canadian
dollar amounts (or percentages derived from such United
States and Canadian dollar amounts) and other financial
information contained in the U.S. Prospectus (in each
case to the extent that such dollar amounts, percentages
and other financial information are derived from the
general accounting records of the Corporation and its
subsidiaries subject to the internal controls of the
Corporation's accounting system or are derived from such
records by analysis or computation) with the results
obtained from inquiries, a reading of such general
accounting records and other procedures specified in
such letter and have found such United States and
Canadian dollar amounts, percentages and other financial
information to be in agreement with such results, except
as otherwise specified in such letter;
(b) true hand-signed copies of the U.S. Registration Statement and
all amendments thereto as required by U.S. Securities Laws; and
- 20 -
(c) a copy of any other document required to be filed by the
Corporation with SEC under U.S. Securities Laws.
(2) The comfort letter referred to in Section 9(1)(a) shall be in addition
to any comfort letters required by the terms of the Canadian
Underwriting Agreement to be delivered to the Canadian Underwriters.
(3) Similar documents and comfort letters shall be delivered to the U.S.
Agents with respect to any amendment to the U.S. Prospectus (provided,
in the case of comfort letters, that the amendment to the U.S.
Prospectus contain financial, accounting or other numerical data of a
financial nature), or required by the terms of the Canadian Underwriting
Agreement to be delivered to Canadian Underwriters.
SECTION 10 CLOSING
(1) The Offering will be completed at the offices of Stikeman Elliott in
Toronto at 8:00 a.m. (Toronto time) on ___, 2002 (the "TIME OF CLOSING"
and the "CLOSING Date", respectively) or at such other time and/or on
such other date as the U.S. Agents and the Corporation may agree upon,
but in any event no later than ___, 2002.
(2) At the Time of Closing, subject to the terms and conditions contained in
this U.S. Agreement, the Corporation shall deliver to the U.S. Agents a
certificate or certificates representing the Offered Securities against
payment of the purchase price by certified cheque, bank draft or wire
transfer dated the Closing Date, payable to the Corporation. The
Corporation will, at the Time of Closing and upon such payment of the
purchase price to the Corporation, make payment in full of the
Underwriting Fee.
SECTION 11
(1) The U.S. Agents shall have the right to sell Additional Units (as such
term is defined in the Canadian Underwriting Agreement) to the public
upon the terms and conditions for the sale of such securities specified
in the Canadian Underwriting Agreement. Any such sale shall be completed
at such time and place as the Canadian Underwriters and the Corporation
may agree (the "ADDITIONAL CLOSING").
(2) At the Additional Closing, subject to the terms and conditions contained
in this Agreement, the Corporation shall deliver to the U.S. Agents a
certificate or certificates representing the Additional Units against
payment of the purchase price by certified cheque, bank draft or wire
transfer, dated the date of the Additional Closing payable to the
Corporation. The Corporation will, at the time of the Additional Closing
and upon such payment of the purchase price to the Corporation, make
payment in full of the Underwriting Fee in respect of the Additional
Units.
SECTION 12 TERMINATION RIGHTS
(1) All terms and conditions set out herein shall be construed as conditions
and any breach or failure by the Corporation to comply with any such
conditions in favour of the U.S. Agents shall entitle the U.S. Agents to
terminate their obligations under this U.S. Agreement by written notice
to that effect given to the Corporation prior to the Time of Closing on
the Closing Date. The Corporation shall use its reasonable best efforts
to
- 21 -
cause all conditions in this U.S. Agreement to be satisfied. It is
understood that the U.S. Agents may waive in whole or in part, or extend
the time for compliance with, any of such terms and conditions without
prejudice to their rights in respect of any subsequent breach or
non-compliance, provided that to be binding on the U.S. Agents, any such
waiver or extension must be in writing.
(2) In addition to any other remedies that may be available to the U.S.
Agents, the U.S. Agents shall each be entitled, at their option, to
terminate and cancel, without any liability on the U.S. Agents' part,
their obligations under this U.S. Agreement, by giving written notice to
the Corporation at any time at or prior to the Time of Closing on the
Closing Date:
(a) if there should occur any suspension or limitation of trading in
securities generally on the TSX or AMEX, or if a general
moratorium on commercial banking activities in Toronto or New
York should be declared by the relevant authorities, or if, in
relation to the Corporation, any inquiry, investigation or other
proceeding (whether formal or informal) is commenced, threatened
or announced or any order or ruling is issued by any officer of
such exchange or market, or by the SEC, or any other regulatory
authority in Canada or the United States, or if any law or
regulation under or pursuant to any statute of Canada or of any
province thereof or of the United States or any state or
territory thereof is promulgated or changed which, in the
reasonable opinion of the U.S. Agents (or any of them) operates
to prevent or materially restrict trading the Common Shares or
the distribution of the Securities or could reasonably be
expected to have a significant adverse effect on the market
price of the Common Shares or the Securities;
(b) if, after the date hereof and prior to the Time of Closing, the
state of financial markets in Canada or the United States is
such that, in the reasonable opinion of the U.S. Agents (or
either of them), the Securities cannot be marketed profitably,
either U.S. Agent shall be entitled, at its option, to
terminated its obligations under this Agreement by notice to
that effect given to the Corporation at or prior to the Time of
Closing;
(c) if any inquiry, investigation or other proceeding is commenced
or any other order is issued under or pursuant to any statute of
the United States or any state thereof (other than an inquiry,
investigation or other proceeding order based solely upon the
activities or alleged activities of any U.S. Agent or Selling
Firm) or Canada or any province thereof or there is any change
of law or the interpretation or administration thereof by a
securities regulator or other public authority, which in the
reasonable opinion of the U.S. Agent, operates to prevent or
materially restrict the trading in any Common Shares or the
distribution of the Securities.
(d) if there shall occur any material change in the business,
affairs, operations, assets, liabilities or financial condition
of the Corporation on a consolidated basis or other change in a
material fact relating to the Corporation on a consolidated
basis which in the U.S. Agents' reasonable opinion would be
expected to have a
- 22 -
significant adverse effect on the market price or value of any
of the Securities or the Common Shares; or
(e) if there should develop, occur or come into effect or existence
any event, action, state, condition or major financial
occurrence of national or international consequence, including
without limiting the generality of the foregoing, any military
conflict, civil insurrection, or any terrorist action,
including, without limitation, military insurrection (whether or
not in connection with such conflict or insurrection), or any
law or regulation, which, in the U.S. Agents' reasonable
opinion, seriously adversely affects or involves, or will
seriously adversely affect or involve, the Canadian or United
States financial markets or the business, operations or affairs
of the Corporation on a consolidated basis and/or prevents or
materially restricts the trading of the Common Shares or the
distribution of the Securities;
(3) The U.S. Agents shall make reasonable best efforts to give notice to the
Corporation (in writing or by other means) of the occurrence of any of
the events referred to in Section 12(2)(a), Section 12(2)(b) or Section
12(2)(e), provided that neither the giving nor the failure to give such
notice shall in any way affect the entitlement of the U.S. Agents to
exercise this right at any time prior to or at the Time of Closing.
(4) The rights of termination contained in this section may be exercised by
the U.S. Agents and are in addition to any other rights or remedies the
U.S. Agents may have in respect of any default, act or failure to act or
non-compliance by the Corporation in respect of any of the matters
contemplated by this U.S. Agreement.
(5) If the obligations of the U.S. Agents are terminated under this U.S.
Agreement pursuant to these termination rights, the Corporation's
liabilities to the U.S. Agents shall be limited to the Corporation's
obligations under Section 13, Section 14 and Section 15.
SECTION 13 INDEMNITY
(1) The Corporation agrees to indemnify and hold harmless each U.S. Agent,
and their respective directors, officers, employees and agents, and each
person, if any, who controls any U.S. Agent within the meaning of
Section 15 of the U.S. Securities Act or Section 20 of the U.S. Exchange
Act against any and all losses, claims, damages and liabilities, joint
or several (including any investigation, legal and other expenses
reasonably incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim asserted), to
which they, or any of them, may become subject under the U.S. Securities
Act, at common law or otherwise, insofar as such losses, claims, damages
or liabilities arise out of or are based upon (i) any breach of a
representation or warranty of the Corporation contained herein or the
failure of the Corporation to comply with any of its obligations
hereunder, or (ii) any untrue statement or alleged untrue statement of a
material fact contained in the U.S. Preliminary Prospectus, the U.S.
Prospectus or the U.S. Registration Statement, or any amendment or
supplement thereto, or 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, except insofar as any such untrue
statement or omission or alleged
- 23 -
untrue statement or omission was made in such U.S. Preliminary
Prospectus, the U.S. Prospectus or U.S. Registration Statement, or such
amendment or supplement, in reliance upon and in conformity, with
information furnished in writing to the Corporation by or on behalf of
any U.S. Agent or Canadian Underwriter expressly for use in the
preparation thereof; provided, however, that the foregoing indemnity
against losses, claims, damages or liabilities is subject to the
condition that, insofar as it relates to any untrue statement or alleged
untrue statement, omission or alleged omission made in the U.S.
Registration Statement or the U.S. Preliminary Prospectus but eliminated
or remedied in the U.S. Prospectus, such indemnity shall not inure to
the benefit of any U.S. Agent from whom the person asserting any loss,
claim, damage or liability purchased the Securities which are the
subject thereof (or to the benefit of any person who controls such U.S.
Agent) if such U.S. Agent failed to send or give a copy of the U.S.
Prospectus (or any amendment or supplement thereto) to such person at or
prior to the time such action is required by the U.S. Securities Act.
(2) Each U.S. Agent agrees to indemnify and hold harmless the Corporation,
each person, if any, who controls the Corporation within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, each
director of the Corporation and each officer of the Corporation, to the
same extent as the foregoing indemnity from the Corporation to each
Underwriter, but only insofar as such losses, claims, damages or
liabilities arise out of or are based upon any untrue statement or
omission or alleged untrue statement or omission which was made in the
U.S. Preliminary Prospectus or the U.S. Prospectus, or any amendment or
supplement thereto, in reliance upon and in conformity with information
furnished in writing to the Corporation by such U.S. Agent with respect
to the U.S. Agents expressly for use in the preparation thereof.
(3) Any party which proposes to assert the right to be indemnified under
this Section 13 will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which
a claim is to be made against an indemnified party under this Section
13, notify each such indemnifying party of the commencement of such
action, suit or proceeding, enclosing a copy of all papers served, but
the omission so to notify such indemnifying party of any such action,
suit or proceeding shall not relieve it from any liability which it may
have to any indemnified party otherwise than under this Section 13. In
case any such action, suit or proceeding shall be brought against any
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate in, and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defence
thereof, with counsel satisfactory to such indemnified party, and after
notice from the indemnifying party to such indemnified party of its
election so to assume the defence thereof, the indemnifying party shall
not be liable to such indemnified party for any legal or other expenses,
other than reasonable costs of investigation subsequently incurred by
such indemnified party in connection with the defence thereof. The
indemnified party shall have the right to employ its counsel in any such
action, but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the employment of counsel
by such indemnified party has been authorized by the indemnifying
parties, (ii) the indemnified party shall have reasonably concluded that
there may be a conflict of interest between the indemnifying
- 24 -
parties and the indemnified party in the conduct of the defence of such
action (in which case the indemnifying parties shall not have the right
to direct the defence of such action on behalf of the indemnified party)
or (iii) the indemnifying parties shall not in fact have employed
counsel to assume the defence of such action. An indemnifying party
shall not be liable for any settlement of any action or claim effected
without its consent. For the purposes of clause (ii) of the preceding
sentence only, any indemnified party or parties shall be represented by
one counsel whom they may select with the approval, which shall not be
unreasonably withheld, of the indemnifying parties.
SECTION 14 CONTRIBUTION
In order to provide for just and equitable contribution in circumstances
in which the indemnification provided for in Section 13 hereof is applicable but
for any reason, other than as specified in Section 13, is held to be unavailable
from the indemnifying party, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the aggregate losses, claims,
damages and liabilities (including any investigation, legal and other expenses
reasonably incurred in connection with, and any amount paid in settlement of,
any action, suit or proceeding or any claims asserted), in such proportion as is
appropriate to reflect the relative benefits received by the Corporation on the
one hand and the U.S. Agents on the other from the offering of the Securities.
If however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Corporation on the one hand and the U.S. Agents on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Corporation on the one hand and the U.S. Agents on the other shall be deemed to
be in the same proportion as the total net proceeds from the offering of the
Securities (before deducting expenses) received by the Corporation bear to the
total underwriting discounts and commissions received by the U.S. Agents, in
each case as set forth in the U.S. Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Corporation on the one
hand or the U.S. Agents on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Corporation and the U.S. Agents agree that it would
not be just and equitable if contributions pursuant to this Section 14 were
determined by pro rata allocation (even if the U.S. Agents were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section
14. Notwithstanding the provisions of this Section 14, (i) in no case shall any
U.S. Agent be responsible for any amount in excess of the sum of the
Underwriting Fee applicable to the Securities purchased by such U.S. Agent
hereunder, and (ii) no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 14, each person, if any, who
controls a U.S. Agent within the meaning of the U.S. Securities Act and the U.S.
Exchange Act, and each director, officer, employee and agent of a U.S. Agent
shall have the same rights to contribution as such U.S. Agent, and each person,
if any, who controls the Corporation within the meaning of the U.S. Securities
Act and the U.S. Exchange Act, and each
- 25 -
director of the Corporation shall have the same rights to contribution as the
Corporation, subject in each case to clauses (i) and (ii) of this Section 14.
Any party entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another party or parties
under this Section 14, notify such party or parties from whom contribution may
be sought, but the omission so to notify such party or parties from whom
contribution may he sought shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have
hereunder or otherwise than under this Section 14. No party shall be liable for
contribution with respect to any action or claim settled without its written
consent. The U.S. Agents' obligations in this section to contribute are several
in proportion to their respective obligations and not joint.
SECTION 15 EXPENSES
Whether or not the transactions provided for herein (including the
Offering) are completed, the Corporation shall pay all costs, fees and expenses
of or incidental to the performance of its obligations under this U.S. Agreement
including, without limitation: (i) the costs of the Corporation's professional
advisors (including, without limitation, the Corporation's auditors, counsel and
any local counsel), (ii) the cost of printing the U.S. Preliminary Prospectus,
the U.S. Prospectus, the Canadian forms of such prospectuses, and any amendments
and supplements thereto, (iii) the preparation of any Blue Sky survey regarding
the offers and sales of the Securities in the various states, and (iv) all
applicable costs related to the review by the NASD of the terms of the sale of
the Offered Securities (which NASD-related costs are to include, in addition to
any filing fees, legal fees and related G.S.T.). The fees and disbursements of
any counsel (whether Canadian or U.S.) to the U.S. Agents and the Canadian
Underwriters up to an aggregate amount of Cdn. $170,000 and out-of-pocket
expenses of the U.S. Agents shall be borne by the Corporation; provided that,
notwithstanding the foregoing, in the event that the sale and purchase of the
Securities is not completed in accordance with the terms hereof (other than as a
result of a breach by the U.S. Agents of any of its obligations hereunder) the
Corporation shall assume and pay, in addition to the out-of-pocket expenses of
the U.S. Agents and any other expenses required to be paid hereunder, all fees
and disbursements of counsel (whether Canadian or U.S.) to the U.S. Agents or
the Canadian Underwriters.
SECTION 16 ACTION BY U.S. AGENTS
All steps which must or may be taken by the U.S. Agents in connection
with the agreement resulting from the Corporation's acceptance of this offer,
with the exception of the matters relating to termination contemplated by
Section 12 hereof, may be taken by the U.S. Lead Manager on behalf of itself and
the other U.S. Agent and the acceptance of this offer by the Corporation shall
constitute the Corporation's authority for accepting notification of any such
steps from, and for delivering the definitive documents constituting the
Securities to or to the order of the U.S. Lead Manager.
SECTION 17 GOVERNING LAW; TIME OF ESSENCE
This U.S. Agreement shall be governed by and construed in accordance
with the laws of the State of New York and the federal laws of the United States
of America applicable therein and time shall be of the essence hereof.
- 26 -
SECTION 18 SURVIVAL OF WARRANTIES, REPRESENTATIONS, COVENANTS AND AGREEMENTS
All warranties, representations, covenants and agreements of the
Corporation and the U.S. Agents herein contained or contained in documents
submitted or required to be submitted pursuant to this U.S. Agreement shall
survive the purchase by the U.S. Agents of the Securities and shall continue in
full force and effect, regardless of the closing of the sale of the Securities
and regardless of any investigation which may be carried on by the U.S. Agents,
or on their behalf, for a period of four years following the Closing Date.
Without limitation of the foregoing, the provisions contained in this U.S.
Agreement in any way related to the indemnification or the contribution
obligations shall survive and continue in full force and effect, indefinitely.
SECTION 19 PRESS RELEASES
The Corporation shall provide the U.S. Agents and their counsel with a
copy of all press releases to be issued by the Corporation concerning the
Offering contemplated hereby prior to the issuance thereof, and shall give the
U.S. Agents and their counsel a reasonable opportunity to provide comments on
any press release.
SECTION 20 NOTICES
All notices or other communications by the terms hereof required or
permitted to be given by one party to another shall be given in writing by
personal delivery or by facsimile delivered or facsimile to such other party as
follows:
(a) to the Corporation at:
Golden Star Resources Ltd.
00000 Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxx
00000-0000
Attention: Xxxxx Xxxxxxxx
Facsimile No.: (000) 000-0000
with a copy to:
Field Xxxxxxxx Perraton LLP
0000, 000-0xx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxxxx Xxxx
Facsimile No.: (000) 000-0000
- 27 -
and to:
Stoel Rives LLP
000 X.X. 0xx Xxxxxx
Xxxxxxxx, Xxxxxx
X.X.X. 00000-0000
Attention: Xxxx Xxxxx
Facsimile No.: (000) 000-0000
(b) to the U.S. Agents at:
Canaccord Capital Corporation (USA) Inc.
c/o Canaccord Capital Corporation
000 Xxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx
Attention: Xxxxx Xxxxxxx
Facsimile No.: (000) 000-0000
and
BMO Xxxxxxx Xxxxx Corp.
c/o BMO Xxxxxxx Xxxxx Inc.
0 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxxxx Xxxxxxxxx
Facsimile No.:(000) 000-0000
with a copy to:
Stikeman Elliott
0000 Xxxxxxxx Xxxxx Xxxx
000 Xxx Xxxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxx X. Xxxxxxxxx
Facsimile No.: (000) 000-0000
and to:
- 00 -
Xxxxxx & Xxxxxxx XXX
XXX Place
000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx
Xxxxxx X0X 0X0
Attention: Xxxxxxxxxxx Xxxxx
Facsimile No.: (000) 000-0000
or at such other address or facsimile number as may be given by either
of them to the other in writing from time to time and such notices or other
communications shall be deemed to have been received when delivered or, if
facsimile, on the next business day after such notice or other communication has
been facsimile (with receipt confirmed).
SECTION 21 JUDGMENT CURRENCY
In respect of any judgment or order given or made for any amount due
hereunder that is expressed and paid in a currency (the "JUDGMENT CURRENCY")
other than United States dollars, the Corporation shall indemnify each U.S.
Agent against any loss incurred by such U.S. Agent as a result of any variation
as between (i) the rate of exchange at which the United States dollar amount is
converted into the judgment currency for the purpose of such judgment or order
and (ii) the rate of exchange at which a U.S. Agent is able to purchase United
States dollars with the amount of the judgment currency actually received by
such U.S. Agent. The term "rate of exchange" shall include any premiums and
costs of exchange payable in connection with the purchase of or conversion into
United States dollars.
SECTION 22 COUNTERPART SIGNATURE
This Agreement may be executed in one or more counterparts (including
counterparts by facsimile) which, together, shall constitute an original copy
hereof as of the date first noted above.
SECTION 23 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the U.S. Agents
and the Corporation relating to the subject matter hereof and supersedes all
prior agreements between the U.S. Agents and the Corporation.
(THE REMAINDER OF THIS PAGE HAS BEEN LEFT BLANK INTENTIONALLY)
- 29 -
SECTION 24 ACCEPTANCE
If this offer accurately reflects the terms of the transaction which we
are to enter into and if such terms are agreed to by the Corporation, please
communicate your acceptance by executing where indicated below and returning by
facsimile one copy and returning by courier one originally executed copy to
Canaccord Capital Corporation (USA) Inc. (Attention: Xxxxx Xxxxxxx).
Yours very truly,
CANACCORD CAPITAL CORPORATION (USA) INC.
By:
-------------------------------------
Authorized Signing Officer
BMO XXXXXXX XXXXX CORP.
By:
-------------------------------------
Authorized Signing Officer
The foregoing accurately reflects the terms of the transaction that we
are to enter into and such terms are agreed to.
ACCEPTED at ______________ as of this ______ day of ___________________,
2002.
GOLDEN STAR RESOURCES LTD.
By:
-------------------------------------
Authorized Signing Officer
SCHEDULE A
MATERIAL SUBSIDIARIES
NAME TYPE OF OWNERSHIP PERCENTAGE
---- ----------------- ----------
Caystar Holdings [Ltd.] Shares 100%
(Cayman Islands)
Bogoso Holdings [Ltd.] (Ghana) Shares 100%
Bogoso Gold Limited (Ghana) Shares 90%
Guyanor Resources S.A. (France) Shares 73%
Societe de Traveux Publics et Shares 100%
de Mines Auriferes en Guyane
S.A.R.L. (France)
Societe des Mines de Yaou & Shares 100%
Dorlin [S.A.R.L.] (France)
Societe de Mines de Saint-Elie Shares 100%
S.A.R.L. (France)
Pan African Resources Shares 99.9%
Corporation (Yukon Territory)
Pan African Resources Shares 100%
Corporation (Barbados)
PARC Cote d'Ivoire S.A. (Ivory Shares 100%
Coast)
- 2 -
SCHEDULE B
Unless the context otherwise dictates, all capitalized terms herein have
the meaning ascribed to thereto in the U.S. Agreement to which this Schedule B
is attached
Canadian counsel's opinions:
As set out in Section 4(1) of the Canadian Underwriting Agreement.
U.S. counsel's opinions:
1. No authorization, approval or other action by, and no notice to,
consent of, order of, or filing with, any United States Federal or state
governmental authority or regulatory body is required for the consummation of
the transactions contemplated by the U.S. Agency Agreement, the Canadian
Underwriting Agreement or the Warrant Indenture, except such as have been
obtained under the U.S. Securities Act and such as may be required under the
blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the U.S. Agents.
2. To the best of such counsel's knowledge and other than as set forth
in the U.S. Prospectus, there are no legal or governmental proceedings pending
to which the Corporation or any of its subsidiaries is a party or of which any
property of the Corporation or any of its subsidiaries would, individually or in
the aggregate have a material adverse effect on the current consolidated
financial position, shareholders' equity or results of operation of the
Corporation and its subsidiaries; and to the best of such counsel's knowledge,
no such proceedings are threatened or contemplated by governmental authorities
or threatened by others;
3. None of the issue and sale of the Securities, the consummation of any
other of the transactions contemplated by the U.S. Agency Agreement and the
Canadian Underwriting Agreement and the performance of the terms of the U.S.
Agency Agreement and the Canadian Underwriting Agreement, including the issuance
of the Agents' Warrants and the Underwriters' Warrants (as defined in the
Canadian Underwriting Agreement), (i) will conflict with, result in a breach of,
or constitute a default under any agreement or instrument that is listed as an
exhibit to the Corporation's most recent Annual Report on Form 10-K filed with
the SEC by the Corporation and to which the Corporation or any of its Material
Subsidiaries is a party or bound, (ii) will contravene any law, rule or
regulation of the United States of America or any state thereof or (iii) based
solely on a certificate signed by an officer of the Corporation, on the date
hereof, will contravene, to our knowledge, any order or decree of any court or
government agency or instrumentality any state or the Federal government of the
United States of America.
4. The statements made in the U.S. Prospectus under the caption "Plan of
Distribution", insofar as they purport to summarize the material terms of the
U.S. Agency Agreement and the Canadian Underwriting Agreement, and under the
caption "U.S. Federal Income Tax Considerations", insofar as they purport to
describe the material tax consequences of an investment in Securities, fairly
summarize the matters therein described.
- 3 -
5. The Corporation is not an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended.
6. The U.S. Registration Statement has become effective under the U.S.
Securities Act, any required filing of a preliminary prospectus or U.S. or
Canadian prospectus, and any supplement thereto pursuant to Rule 424 under the
U.S. Securities Act has been made in the manner and within the time required by
Rule 424 and no staff order suspending the effectiveness of the U.S.
Registration Statement has been issued and the knowledge of such counsel, no
proceeding for that purpose has been instituted, threatened or contemplated by
the SEC.
7. The documents incorporated by reference in the U.S. Prospectus or any
further amendment or supplement thereto made by the Corporation prior to the
date of this opinion (other than the financial statements and related schedules
therein or other financial data derived from accounting records, as to which
counsel is not expressing an opinion), when they became effective or were filed
with the SEC, as the case may be, complied as to form in all material respects
with the requirements of U.S. Securities Act or the U.S. Exchange Act, as
applicable, and the rules and regulations of the SEC thereunder; and such
counsel has no reason to believe that any of such documents (other than the
financial statements and related schedules therein or other financial data
derived from accounting records, as to which such counsel is not expressing an
opinion), when such documents became effective or were so filed, as the case may
be, contained, in the case of a registration statement which became effective
under the U.S. Securities Act, an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or in the case of documents which were filed
under the U.S. Exchange Act with the SEC (other than the financial statements
and related schedules therein or other financial data derived from accounting
records, as to which such counsel is not expressing an opinion), an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made when such documents were filed, not misleading.
8. (A) The U.S. Registration Statement as of its effective date and the
U.S. Prospectus at the time it was filed with the SEC pursuant to Rule 424(b)
under the U.S. Securities Act and any further amendments and supplements thereto
made by the Corporation prior to the date hereof (other than the financial
statements and related schedules therein or other financial data derived from
accounting records, as to which such counsel is not expressing an opinion)
comply as to form in all material respects with the requirements of the U.S.
Securities Act and the rules and regulations thereunder; (B) and such counsel
has no reason to believe that, as of its effective date, the U.S. Registration
Statement or any further amendment thereto made by the Corporation prior to the
date hereof (other than the financial statements and related schedules therein
or other financial data derived from accounting records, as to which such
counsel is not expressing an opinion) contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that, as of its
date, the U.S. Prospectus or any further amendment or supplement thereto
- 4 -
made by the Corporation prior to the date hereof (other than the financial
statements and related schedules therein or other financial data derived from
accounting records, as to which such counsel is not expressing an opinion) them
contained an untrue statement of a material fact or omitted to state a 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 or
that, as of the date hereof, either the U.S. Registration Statement or the U.S.
Prospectus or any further amendment or supplement thereto made by the
Corporation prior to the date hereof (other than the financial statements and
related schedules therein or other financial data derived from accounting
records, as to which such counsel is not expressing an opinion) contains an
untrue statement of a material fact or omits to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; and (C) such counsel do not know of any
amendment to the U.S. Registration Statement required to be filed which has not
been filed as required.
9. Such counsel does not know of any legal or governmental proceeding or
any franchise, contract or other document required to be described in, or filed
as an exhibit to, the U.S. Registration Statement or described or incorporated
by reference in the U.S. Prospectus which has not been described, filed or
incorporated by reference as required.
10. The statements included or incorporated by reference in the U.S.
Registration Statement or the U.S. Prospectus describing statutes, legal or
other governmental proceedings, contracts or other agreements are accurate in
all material respects and fairly summarize such matters.
- 5 -
SCHEDULE C
OUTSTANDING STOCK OPTIONS
