COMMON SHARES SILVER STANDARD RESOURCES INC. UNDERWRITING AGREEMENT
EXHIBIT 99.1
COMMON SHARES
August 12, 2009
UBS SECURITIES CANADA INC.
CREDIT SUISSE SECURITIES (USA) LLC
XXXXXXX XXXX & CO., LLC
DEUTSCHE BANK SECURITIES INC.
XXXXXX XXXXXXX & CO. INCORPORATED
CIBC WORLD MARKETS INC.
SCOTIA CAPITAL INC.
BLACKMONT CAPITAL INC.
GMP SECURITIES L.P.
NATIONAL BANK FINANCIAL INC.
SALMAN PARTNERS INC.
CREDIT SUISSE SECURITIES (USA) LLC
XXXXXXX XXXX & CO., LLC
DEUTSCHE BANK SECURITIES INC.
XXXXXX XXXXXXX & CO. INCORPORATED
CIBC WORLD MARKETS INC.
SCOTIA CAPITAL INC.
BLACKMONT CAPITAL INC.
GMP SECURITIES L.P.
NATIONAL BANK FINANCIAL INC.
SALMAN PARTNERS INC.
DEUTSCHE BANK SECURITIES LIMITED
CREDIT SUISSE SECURITIES (CANADA), INC.
As Sub-Underwriters
CREDIT SUISSE SECURITIES (CANADA), INC.
As Sub-Underwriters
c/o UBS Securities Canada Inc.
Xxxxx 0000, 000 Xxx Xxxxxx
Xxxxxxx, Xxxxxxx, X0X 0X0
Xxxxx 0000, 000 Xxx Xxxxxx
Xxxxxxx, Xxxxxxx, X0X 0X0
Ladies/Gentlemen:
Silver Standard Resources Inc., a corporation organized and existing under the laws of British
Columbia (the “Company”), proposes, subject to the terms and conditions stated herein, to issue and
sell to the several underwriters named in Schedule I hereto (the “Underwriters”) an aggregate of
2,725,288 common shares (the “Firm Shares”), without par value, and, for the sole purpose of
covering over-allotments in connection with the sale of the Firm Shares, at the option of the
Underwriters, up to an additional 272,528 common shares (the “Additional Shares”). The Firm Shares
and any Additional Shares purchased by the Underwriters are referred to herein as the “Shares”.
UBS Securities Canada Inc. is acting as lead manager (“UBS” or the “Lead Manager”) in connection
with the offering and sale of the Shares contemplated herein (the “Offering”).
The Company understands that the Underwriters propose to make a public offering of the Shares
in the United States and each of the provinces of Canada, except Quebec, either directly or through
their respective U.S. or Canadian broker-dealer affiliates upon the terms set forth in the
Prospectuses (as defined below) as soon as the Underwriters deem advisable after this Agreement has
been executed and delivered.
The Company understands that a portion of the Shares may be offered and sold in the Canadian
Jurisdictions (as defined below) by UBS Securities Canada Inc., Deutsche Bank Securities Limited
and Credit Suisse Securities (Canada), Inc., the Canadian broker-dealer affiliates of certain of
the Underwriters (collectively, the “Sub-Underwriters”), pursuant to the Canadian Prospectus (as
defined below). The Sub-Underwriters, subject to the terms and conditions set forth herein, agree
to use reasonable efforts to sell such Shares in the Canadian Jurisdictions. Any Shares sold by a
Sub-Underwriter will be purchased by the Sub-Underwriter from its respective U.S. broker-dealer
affiliate at the Closing Date (as defined below) at a price equal to the price set forth in Section
2(a) below or such purchase price less an amount to be mutually agreed upon by the Sub-Underwriter
and its respective U.S. broker-dealer affiliate, which amount shall not be greater than the
underwriting commission set forth in Annex IV hereto.
1. Representations and Warranties of the Company. The Company represents and warrants
to, and agrees with, each of the Underwriters and the Sub-Underwriters that:
(a) The Company is qualified to file a short form prospectus pursuant to the Shelf Procedures
(as defined below) and has prepared and filed a preliminary short form base shelf prospectus dated
February 10, 2009 (the “Canadian Preliminary Base Shelf Prospectus”) and a final short form base
shelf prospectus dated February 18, 2009 (the “Canadian Final Base Shelf Prospectus”) providing for
the offer and sale, from time to time, of up to US$150,000,000 of the Company’s common shares with
the British Columbia Securities Commission, as principal regulator pursuant to Multilateral
Instrument 11-101 — Principal Regulator System (the “Reviewing Authority”) and the Canadian
securities regulatory authorities in each of the Canadian Jurisdictions (as defined below),
(collectively, the “Canadian Qualifying Authorities”); and the Reviewing Authority has issued a
prospectus receipt under National Policy 11-202: Process for Prospectus Reviews in Multiple
Jurisdictions (a “Decision Document”) on behalf of the Canadian Qualifying Authorities for each of
the Canadian Preliminary Base Shelf Prospectus and the Canadian Final Base Shelf Prospectus. The
term “Canadian Jurisdictions” means each of the provinces of Canada, except Quebec. The term
“Canadian Base Prospectus” means the Canadian Final Base Shelf Prospectus, including documents
incorporated therein by reference, at the time the Reviewing Authority issued a Decision Document
with respect thereto in accordance with the rules and procedures established under all applicable
securities laws in each of the Canadian Jurisdictions and the respective regulations and rules
under such laws together with applicable published policy statements and instruments of the
securities regulatory authorities in the Canadian Jurisdictions (“Canadian Securities Laws”),
including National Instrument 44-101 — Short Form Prospectus Distributions and National Instrument
44-102 — Shelf Distributions (together, the “Shelf Procedures”). The term “Canadian Pricing
Prospectus” means the preliminary prospectus supplement (the “Canadian Preliminary Prospectus
Supplement”) relating to the Offering, which excluded certain pricing information, filed with the
Canadian
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Qualifying Authorities (excluding those in the Provinces of Xxxxxx Xxxxxx Island and
Newfoundland and Labrador) in accordance with the Shelf Procedures on August 10, 2009, together
with the Canadian Base Prospectus, including all documents incorporated therein by reference. The
term “Canadian Prospectus” means the prospectus supplement (the “Canadian Prospectus Supplement”)
relating to the Offering, which includes the pricing information omitted from the Canadian Pricing
Prospectus, to be dated the date hereof and filed with the Canadian Qualifying Authorities in
accordance with the Shelf Procedures, together with the Canadian Base Prospectus, including all
documents incorporated therein by reference. No order suspending the distribution of the Shares or
any other securities of the Company has been issued by any of the Canadian Qualifying Authorities
and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Canadian Qualifying Authorities, and any request on the part of
the Canadian Qualifying Authorities for additional information has been complied with.
All references in this Agreement to the Canadian Preliminary Base Shelf Prospectus, the Canadian
Final Base Shelf Prospectus, the Canadian Preliminary Prospectus Supplement and the Canadian
Prospectus Supplement, or any amendments or supplements to any of the foregoing, shall be deemed to
include any copy thereof filed with the Canadian Qualifying Authorities pursuant to the System for
Electronic Document Analysis and Retrieval (SEDAR).
(b) The Company meets the general eligibility requirements for the use of Form F-10 under the
Securities Act of 1933, as amended (the “Securities Act”) and has prepared and filed with the
Securities and Exchange Commission (the “Commission”) a registration statement under the Securities
Act and the rules and regulations of the Commission (the “Rules and Regulations”) on Form F-10 (No.
333-157223), on February 11, 2009, and Amendment No. 1 thereto on February 19, 2009, providing for
the offer and sale, from time to time, of up to US$150,000,000 of the Company’s common shares.
Such registration statement, as amended, which includes the Canadian Base Prospectus (with such
deletions therefrom and additions thereto as are permitted or required by Form F-10 and the
applicable Rules and Regulations), including exhibits to such registration statement and all
documents incorporated by reference therein, became effective pursuant to Rule 467(b) under the
Securities Act on February 23, 2009. Such registration statement, as amended, including all
exhibits and all documents incorporated by reference therein, as of the time it became effective,
is referred to herein as the “Registration Statement”. In connection with the filing of the
Registration Statement, the Company has filed with the Commission on February 11, 2009 an
appointment of agent for service of process upon the Company on Form F-X under the Securities Act.
The prospectus included in the Registration Statement at the time it became effective, including
documents incorporated therein by reference, is referred to herein as the “U.S. Base Prospectus”.
The term “U.S. Pricing Prospectus” means the preliminary prospectus supplement (the “U.S.
Preliminary Prospectus Supplement”) relating to the Offering, which excluded certain pricing
information, filed with the Commission pursuant to General Instruction II.L. of Form F-10 on August
10, 2009, together with the U.S. Base Prospectus, including all documents incorporated therein by
reference. The term “U.S. Prospectus” means the prospectus supplement (the “U.S. Prospectus
Supplement”) relating to the Offering, which includes the pricing information omitted from the U.S.
Pricing Prospectus, to be dated the date hereof and filed with the Commission pursuant to General
Instruction II.L. of Form F-10, together with the U.S. Base Prospectus, including all documents
incorporated therein
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by reference. No stop order suspending the effectiveness of the Registration Statement has
been issued under the Securities Act and no proceedings for that purpose have been instituted or
are pending or, to the knowledge of the Company, are contemplated by the Commission and any request
on the part of the Commission for additional information has been complied with.
Any “issuer free writing prospectus” (as defined in Rule 433 under the Securities Act)
relating to the Shares is hereafter referred to as an “Issuer Free Writing Prospectus”; and the
U.S. Pricing Prospectus, as supplemented by the Issuer Free Writing Prospectuses, if any, and the
information listed in Annex IV hereto, taken together, are hereafter referred to collectively as
the “Pricing Disclosure Package”. Any reference herein to the U.S. Base Prospectus, the U.S.
Pricing Prospectus and the U.S. Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein as of the date of filing thereof; and any reference herein to any
“amendment” or “supplement” with respect to any of the U.S. Base Prospectus, the U.S. Pricing
Prospectus and the U.S. Prospectus shall be deemed to refer to and include (i) the filing of any
document with the Canadian Qualifying Authorities or the Commission incorporated or deemed to be
incorporated therein by reference after the date of filing of such U.S. Base Prospectus, U.S.
Pricing Prospectus or U.S. Prospectus and (ii) any such document so filed. As used herein, “Base
Prospectuses” shall mean, collectively, the Canadian Base Prospectus and the U.S. Base Prospectus;
“Pricing Prospectuses” shall mean, collectively, the Canadian Pricing Prospectus and the U.S.
Pricing Prospectus; and “Prospectuses” shall mean, collectively, the Canadian Prospectus and the
U.S. Prospectus.
The Company was not an “ineligible issuer” (as defined in Rule 405 under the Securities Act)
as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act
with respect to the Offering contemplated hereby.
All references in this Agreement to the Registration Statement, the U.S. Base Prospectus, the
U.S. Pricing Prospectus or the U.S. Prospectus, or any Issuer Free Writing Prospectus, or any
amendments or supplements to any of the foregoing, shall be deemed to include any copy thereof
filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System
(XXXXX).
(c) The Canadian Base Prospectus and the Canadian Pricing Prospectus did, and the Canadian
Prospectus (and any further amendments or supplements thereto) will, comply in all material
respects with the applicable requirements of Canadian Securities Laws; the Canadian Pricing
Prospectus, as of the time of filing thereof, did not, and the Canadian Prospectus (and any further
amendments or supplements thereto) will not, as of the time of filing thereof and through the
Closing Date and the Additional Closing Date, if any (each as defined below) include any untrue
statement of a material fact or omit to state a material fact that is required to be stated or
necessary in order to make the statements therein, in light of the circumstances under which they
were made, not false or misleading, and the Canadian Pricing Prospectus, as of the time of filing
thereof, constituted, and the Canadian Prospectus (and any further amendments or supplements
thereto) will, as of the time of filing thereof and through the Closing Date and the Additional
Closing Date, if any, constitute, full, true and plain disclosure of all material facts relating to
the Shares and to the Company; provided, however, that this representation and warranty shall not
apply to any information contained in or omitted from the Canadian Pricing
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Prospectus or the Canadian Prospectus or any amendment thereof or supplement thereto in
reliance upon and in conformity with information furnished in writing to the Company by or on
behalf of any Underwriter or Sub-Underwriter through the Lead Manager specifically for use therein.
The parties hereto agree that such information provided by or on behalf of any Underwriter or
Sub-Underwriter through the Lead Manager consists solely of the material referred to in Section 16
hereof.
(d) The Registration Statement complies, and the U.S. Prospectus and any further amendments or
supplements to the Registration Statement or the U.S. Prospectus will comply, in all material
respects with the applicable provisions of the Securities Act and the Rules and Regulations, and do
not and will not, as of the applicable effective date as to each part of the Registration Statement
and as of the applicable filing date as to the U.S. Prospectus and any amendment thereof 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 in order to make the statements therein (in light of the
circumstances under which they were made, in the case of the U.S. Prospectus) not misleading;
provided, however, that this representation and warranty shall not apply to any information
contained in or omitted from the Registration Statement or the U.S. Prospectus or any amendment
thereof or supplement thereto in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of any Underwriter or Sub-Underwriter through the Lead
Manager specifically for use therein. The parties hereto agree that such information provided by
or on behalf of any Underwriter or Sub-Underwriter through the Lead Manager consists solely of the
material referred to in Section 16 hereof.
(e) No order preventing or suspending the use of the U.S. Base Prospectus, the U.S. Pricing
Prospectus or any Issuer Free Writing Prospectus has been issued by the Commission, and the U.S.
Pricing Prospectus, at the time of filing thereof, complied in all material respects with the
applicable provisions of the Securities Act and the Rules and Regulations, 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; provided, however, that this representation and warranty shall not apply to
any information contained in or omitted from the U.S. Pricing Prospectus in reliance upon and in
conformity with information furnished in writing to the Company by or on behalf of any Underwriter
or Sub-Underwriter through the Lead Manager specifically for use therein. The parties hereto agree
that such information provided by or on behalf of any Underwriter or Sub-Underwriter through the
Lead Manager consists solely of the material referred to in Section 16 hereof.
(f) For purposes of this Agreement, the “Applicable Time” is 9:15 a.m. (Eastern) on the date
of this Agreement. The Pricing Disclosure Package, as of the Applicable Time, did not, and from
the Applicable Time through the Closing Date and the Additional Closing Date, if any (each as
defined below), will 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. Each Issuer Free Writing
Prospectus complies in all material respects with the applicable provisions of the Securities Act
and the Rules and Regulations, and does not include information that conflicts with the information
contained in the Registration Statement, the Pricing Prospectuses or the
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Prospectuses, and any Issuer Free Writing Prospectus, as supplemented by and taken together
with the Pricing Disclosure Package as of the Applicable Time, 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. No representation and warranty is made in this Section 1(f) with respect to any
information contained in or omitted from the Pricing Disclosure Package or any Issuer Free Writing
Prospectus in reliance upon and in conformity with information furnished in writing to the Company
by or on behalf of any Underwriter or Sub-Underwriter through the Lead Manager specifically for use
therein. The parties hereto agree that such information provided by or on behalf of any
Underwriter or Sub-Underwriter through the Lead Manager consists solely of the material referred to
in Section 16 hereof.
(g) Each document filed or to be filed with the Canadian Qualifying Authorities and
incorporated, or deemed to be incorporated, by reference in the Canadian Prospectus complied, or
will comply, when so filed in all material respects with the requirements of Canadian Securities
Laws, and none of such documents contained, or will contain, at the time of its filing any untrue
statement of a material fact or omitted or will omit at the time of its filing 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 or are made, not false or misleading.
(h) PricewaterhouseCoopers LLP, who have audited the consolidated financial statements of the
Company and its subsidiaries that are included or incorporated by reference in the Registration
Statement, the Pricing Prospectuses and the Prospectuses, and whose reports appear or are
incorporated by reference in the Registration Statement, the Pricing Prospectuses and the
Prospectuses are independent with respect to the Company as required by Canadian Securities Laws
and are independent public accountants as required by the Securities Act, the Securities Exchange
Act of 1934, as amended (the “Exchange Act”) and the Rules and Regulations.
(i) Subsequent to the respective dates as of which information is given in the Registration
Statement, the Pricing Prospectuses and the Prospectuses, except as disclosed in the Pricing
Prospectuses and the Prospectuses, (i) the Company has not declared or paid any dividends, or made
any other distribution of any kind, on or in respect of its share capital, (ii) there has not been
any material change in the share capital or long-term or short-term debt of the Company or any of
its subsidiaries (each, a “Subsidiary” and, collectively, the “Subsidiaries”), (iii) neither the
Company nor any Subsidiary has sustained any material loss or interference with its business or
properties from fire, explosion, flood, hurricane, accident or other calamity, whether or not
covered by insurance, or from any labor dispute or any legal or governmental proceeding, and (iv)
there has not been any material adverse change or any development involving a prospective material
adverse change, whether or not arising from transactions in the ordinary course of business, in or
affecting the business, general affairs, management, condition (financial or otherwise), results of
operations, shareholders’ equity, properties or prospects of the Company and the Subsidiaries,
taken as a whole (a “Material Adverse Change”). Since the date of the latest balance sheet
included, or incorporated by reference, in the Registration Statement, the Pricing Prospectuses and
the Prospectuses, neither the Company nor any Subsidiary has incurred or undertaken any liabilities
or obligations, whether direct or indirect, liquidated or
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contingent, matured or unmatured, or entered into any transactions, including any acquisition
or disposition of any business or asset, which are material to the Company and the Subsidiaries,
taken as a whole, except for liabilities, obligations and transactions which are disclosed in the
Pricing Prospectuses and the Prospectuses.
(j) No Subsidiary listed in Exhibit A hereto (each, a “Material Subsidiary” and, collectively,
the “Material Subsidiaries”) is currently prohibited, directly or indirectly, from paying any
dividends to the Company, from making any other distribution on such Material Subsidiary’s capital
stock, from repaying to the Company any loans or advances to such Material Subsidiary from the
Company or from transferring any of such Material Subsidiary’s property or assets to the Company or
any other Subsidiary of the Company.
(k) The Company has an authorized and outstanding capitalization as set forth in the Pricing
Prospectuses and the Prospectuses, and all of the issued and outstanding share capital of the
Company are fully paid and non-assessable and have been duly and validly authorized and issued, in
compliance with all applicable Canadian, U.S. and other securities laws and not in violation of or
subject to any preemptive or similar right that entitles any person to acquire from the Company or
any Subsidiary any common shares of the Company or other security of the Company or any security
convertible into, or exercisable or exchangeable for, common shares of the Company or any other
such security (any “Relevant Security”), except for such rights as may have been fully satisfied or
waived prior to the effectiveness of the Registration Statement. All of the issued share capital
of or other ownership interests in each Material Subsidiary have been duly and validly authorized
and issued and are fully paid and non-assessable and (except as otherwise set forth in the Pricing
Prospectuses and the Prospectuses) are owned directly or indirectly by the Company free and clear
of any lien, charge, mortgage, pledge, security interest, claim, or other encumbrance of any kind
whatsoever (any “Lien”).
(l) The Company has full power and authority (corporate or otherwise) to issue the Shares and
to perform its obligations hereunder. The Shares to be delivered on the Closing Date and the
Additional Closing Date, if any (as defined below), have been duly and validly authorized and, when
issued and delivered in accordance with this Agreement, will be duly and validly issued, fully paid
and non-assessable, will have been issued in compliance with all applicable Canadian, United States
and other securities laws and will not have been issued in violation of or subject to any
preemptive or similar right that entitles any person to acquire any Relevant Security from the
Company. The common shares of the Company and the Shares conform to the descriptions thereof
contained in the Registration Statement, the Pricing Prospectuses and the Prospectuses. Except as
disclosed in the Pricing Prospectuses and the Prospectuses, the Company has no outstanding
warrants, options to purchase, or any preemptive rights or other rights to subscribe for or to
purchase, or any contracts or commitments to issue or sell, any Relevant Security. Except as
disclosed in the Pricing Prospectuses and the Prospectuses, no holder of any Relevant Security has
any rights to require registration or qualification under the Securities Act or the Canadian
Securities Laws of any Relevant Security in connection with the offer and sale of the Shares
contemplated hereby, and any such rights so disclosed have either been fully complied with by the
Company or effectively waived by the holders thereof.
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(m) The Material Subsidiaries are the only Subsidiaries that are “significant subsidiaries” of
the Company (within the meaning of Rule 1-02 of Regulation S-X under the Securities Act) or are
otherwise material to the Company. The Company and each Material Subsidiary has been duly
organized and validly exists as a corporation, partnership or limited liability company in good
standing under the laws of its jurisdiction of organization. The Company and each Material
Subsidiary is duly qualified to do business and is in good standing as a foreign corporation,
partnership or limited liability company in each jurisdiction in which the character or location of
its properties (owned, leased or licensed) or the nature or conduct of its business makes such
qualification necessary, except for those failures to be so qualified or in good standing which
(individually and in the aggregate) could not reasonably be expected to have a material adverse
effect on (i) the business, general affairs, management, condition (financial or otherwise),
results of operations, shareholders’ equity, properties or prospects of the Company and the
Subsidiaries, taken as a whole; or (ii) the ability of the Company to consummate the Offering or
any other transaction contemplated by this Agreement, the Pricing Prospectuses or the Prospectuses
(a “Material Adverse Effect”).
(n) The Company and each Material Subsidiary has all requisite power and authority, and all
necessary consents, approvals, authorizations, orders, registrations, qualifications, licenses,
filings and permits of, with and from all judicial, regulatory and other legal or governmental
agencies and bodies and all third parties, Canadian, U.S. or foreign (collectively, the
“Consents”), to own, lease and operate its properties and conduct its business as it is now being
conducted, in each case as disclosed in the Registration Statement, the Pricing Prospectuses and
the Prospectuses, and each such Consent is valid and in full force and effect, except in each case
as could not reasonably be expected to have a Material Adverse Effect. Neither the Company nor any
Material Subsidiary has received notice of any investigation or proceedings which, if decided
adversely to the Company or any such Material Subsidiary, could reasonably be expected to result
in, the revocation of, or imposition of a materially burdensome restriction on, any such Consent.
(o) This Agreement has been duly and validly authorized, executed and delivered by the
Company.
(p) There are no reports or information that in accordance with the requirements of the
Canadian Securities Laws must be made publicly available in connection with the Offering of the
Shares that have not been made publicly available as required; there are no documents required to
be filed as of the date hereof with the Canadian Qualifying Authorities or with any other Canadian
securities regulatory authority in connection with the Offering of the Shares that have not been
filed as required; the Company has not filed any confidential material change reports or similar
confidential report with any securities regulatory authority that is still maintained on a
confidential basis.
(q) The issue and sale of the Shares, the compliance by the Company with this Agreement and
the consummation of the transactions herein contemplated do not and will not (i) conflict with or
result in a breach or violation of any of the terms and provisions of, or constitute a default (or
an event which with notice or lapse of time, or both, would constitute a default) under, or result
in the creation or imposition of any Lien upon any property or assets of the
8
Company or any Material Subsidiary pursuant to, any indenture, mortgage, deed of trust, loan
agreement or other agreement, instrument, franchise, license or permit to which the Company or any
Material Subsidiary is a party or by which the Company or any Material Subsidiary or their
respective properties, operations or assets may be bound or (ii) violate or conflict with any
provision of the certificate or articles of incorporation, by-laws, certificate of formation,
limited liability company agreement, partnership agreement or other organizational documents of the
Company or any Material Subsidiary, or (iii) violate or conflict with any statute, law, rule,
regulation, ordinance, directive, judgment, decree or order of any judicial, regulatory or other
legal or governmental agency or body, Canadian, U.S. or other, except (in the case of clauses (i)
and (iii) above) as could not reasonably be expected to have a Material Adverse Effect.
(r) No Consent of, with or from any judicial, regulatory or other legal or governmental agency
or body or any third party, Canadian, U.S. or foreign, is required for the execution, delivery and
performance of this Agreement or consummation of the transactions contemplated by this Agreement,
except the registration under the Securities Act of the Shares, the qualification of the Shares for
distribution in the Canadian Jurisdictions as contemplated by this Agreement, necessary approvals
of the Toronto Stock Exchange (the “TSX”), the filing of a Notification Form: Change in the Number
of Outstanding Shares with the Nasdaq Stock Market (“Nasdaq”) and any consents as may be required
under state or foreign securities or blue sky laws, or the by-laws and rules of the Financial
Industry Regulatory Authority (“FINRA”) in connection with the purchase and distribution of the
Shares by the Underwriters or the Sub-Underwriters, each of which has been obtained and is in full
force and effect (on a conditional basis, in the case of the Consent of the TSX).
(s) Except as disclosed in the Registration Statement, the Pricing Prospectuses and the
Prospectuses, there is no judicial, regulatory, arbitral or other legal or governmental proceeding
or other litigation or arbitration, Canadian, United States or foreign, pending to which the
Company or any Subsidiary is a party or of which any property, operations or assets of the Company
or any Subsidiary is the subject which, individually or in the aggregate, if determined adversely
to the Company or any Subsidiary, could reasonably be expected to have a Material Adverse Effect;
to the Company’s knowledge, no such proceeding, litigation or arbitration is threatened or
contemplated; and the defense of all such proceedings, litigation and arbitration against or
involving the Company or any Subsidiary could not reasonably be expected to have a Material Adverse
Effect.
(t) The consolidated financial statements, including the notes thereto, included or
incorporated by reference in the Registration Statement, the Pricing Prospectuses and the
Prospectuses present fairly, in all material respects, the financial position as of the dates
indicated and the cash flows and results of operations for the periods specified of the Company and
its consolidated Subsidiaries; except as otherwise stated in the Registration Statement, the
Pricing Prospectuses and the Prospectuses, said consolidated financial statements have been
prepared in conformity with Canadian generally accepted accounting principles applied on a
consistent basis throughout the periods involved and have been reconciled to United States
generally accepted accounting principles in accordance with Item 18 of Form 20-F under the Exchange
Act. No other financial statements or supporting schedules are required to be included in the
Registration Statement, the Pricing Prospectuses and the Prospectuses by Canadian
9
Securities Laws, the Securities Act, the Exchange Act or the Rules and Regulations. The other
financial and statistical information included or incorporated by reference in the Registration
Statement, the Pricing Prospectuses and the Prospectuses, including the selected consolidated
financial data set forth under the captions “Selected consolidated financial data” and
“Capitalization” in the Canadian Preliminary Prospectus Supplement, the U.S. Preliminary Prospectus
Supplement, the Canadian Prospectus Supplement and the U.S. Prospectus Supplement, present fairly
the information included therein and have been prepared on a basis consistent with that of the
financial statements that are included or incorporated by reference in the Registration Statement,
the Pricing Prospectuses and the Prospectuses and the books and records of the Company.
(u) There has not been any reportable event (within the meaning of National Instrument 51-102
of the Canadian Securities Administrators) between the Company and its auditors.
(v) The statistical, industry-related and market-related data included in the Registration
Statement, the Pricing Prospectuses and the Prospectuses are based on or derived from sources which
the Company reasonably and in good faith believes are reliable and accurate, and such data agree
with the sources from which they are derived.
(w) The common shares of the Company have been registered pursuant to Section 12(b) of the
Exchange Act. The common shares of the Company are listed on the TSX and on the Nasdaq Global
Market, and the Company has taken no action designed to, or likely to have the effect of,
terminating the registration of the common shares of the Company under the Exchange Act or
de-listing the common shares of the Company from the TSX or Nasdaq, nor has the Company received
any notification that the Commission, the Canadian Qualifying Authorities, the TSX or Nasdaq is
contemplating terminating such registration or listing.
(x) The Company and its Material Subsidiaries maintain a system of internal accounting and
other controls sufficient to provide reasonable assurances 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 and to maintain accountability for assets, (iii) access to assets is
permitted only in accordance with management’s general or specific authorization, and (iv) the
recorded accounting for assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. The Company believes that the
Company’s and its Material Subsidiaries’ internal control over financial reporting is effective and
the Company and its Material Subsidiaries are not aware of any material weakness in their internal
control over financial reporting.
(y) Since the date of the latest audited consolidated financial statements included or
incorporated by reference in the Pricing Prospectuses and the Prospectuses there has been no change
in the Company’s internal control over financial reporting that has materially affected, or is
reasonably likely to materially affect, the Company’s internal control over financial reporting.
10
(z) The Company and its Subsidiaries maintain disclosure controls and procedures (as such term
is defined in Rule 13a-15(e) under the Exchange Act and Canadian Securities Laws) that comply with
the requirements of the Exchange Act and Canadian Securities Laws; such disclosure controls and
procedures have been designed to ensure that material information relating to the Company and its
Subsidiaries is made known to the Company’s principal executive officer and principal financial
officer by others within those entities. Such disclosure controls and procedures are effective.
(aa) There is and has been no failure on the part of the Company or any of its directors or
officers, in their capacities as such, to comply with any provision of the Xxxxxxxx-Xxxxx Act of
2002 and the rules and regulations promulgated in connection therewith, including, without
limitation, Section 402 related to loans and Sections 302 and 906 related to certifications.
(bb) Neither the Company nor, to the Company’s knowledge, any of its affiliates (within the
meaning of Rule 144 under the Securities Act) has taken, directly or indirectly, any action which
constitutes or is designed to cause or result in, or which could reasonably be expected to
constitute, cause or result in, the stabilization or manipulation of the price of any security to
facilitate the sale or resale of the Shares.
(cc) Neither the Company nor, to the Company’s knowledge, any of its affiliates (within the
meaning of Rule 144 under the Securities Act) has, prior to the date hereof, made any offer or sale
of any securities which could be “integrated” (within the meaning of the Securities Act and the
Rules and Regulations) with the offer and sale of the Shares pursuant to the Registration
Statement.
(dd) The statements set forth in the Base Prospectuses under the captions “Description of
Share Capital”, “Enforceability of Civil Liabilities”, “Risk Factors — Risks Related to our Common
Shares — Under U.S. federal tax rules, we may be classified as a passive foreign investment
company...” and “Risk Factors — Risks Related to our Common Shares — Enforcement of judgments or
bringing actions outside the United States...”, in the Canadian Prospectus Supplement and the U.S.
Prospectus Supplement under the captions “Certain income tax considerations for U.S. holders,”
“Certain income tax considerations for Canadian holders” and “Enforceability of Civil Liabilities,”
in the Canadian Prospectus Supplement under “Eligibility for Investment” and in the Registration
Statement under “Part II — Indemnification”, insofar as such statements summarize legal matters,
agreements, documents or proceedings discussed therein, are, in all material respects, accurate,
complete and fair summaries of such legal matters, agreements, documents or proceedings.
(ee) There is no franchise, contract or other document of a character required to be described
in the Registration Statement, the Pricing Prospectuses or the Prospectuses, or to be filed as an
exhibit thereto, which is not described or filed as required; insofar as such descriptions
summarize legal matters, agreements, documents or proceedings discussed therein, such descriptions
are accurate and fair summaries of such legal matters, agreements, documents or proceedings.
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(ff) The Company is subject to the reporting requirements of Section 13 of the Exchange Act
and files periodic reports with the Commission. All conditions for use of Form F-10 to register
the Shares under the Securities Act have been satisfied. The documents incorporated or deemed to
be incorporated by reference in the Pricing Prospectuses and the Prospectuses, at the time they
were or hereafter are filed with the Commission or the Canadian Qualifying Authorities, complied
and will comply in all material respects with the requirements of the Securities Act, the Exchange
Act, the Rules and Regulations and Canadian Securities Laws and, when read together with the other
information in the Pricing Prospectuses and the Prospectuses, as applicable, do 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 the light of the circumstances under which they
were made, not misleading.
(gg) The Company is not and, at all times up to and including consummation of the transactions
contemplated by this Agreement, and after giving effect to application of the net proceeds of the
Offering as described in the Pricing Prospectuses and the Prospectuses, will not be, required to
register as an “investment company” under the Investment Company Act of 1940, as amended, and is
not and will not be an entity “controlled” by an “investment company” within the meaning of such
act.
(hh) Except as disclosed in the Pricing Prospectuses and the Prospectuses, there are no
contracts, agreements or understandings between the Company and any person that would give rise to
a valid claim against the Company or any Underwriter or Sub-Underwriter for a brokerage commission,
finder’s fee or other like payment in connection with the transactions contemplated by this
Agreement or, to the Company’s knowledge, any arrangements, agreements, understandings, payments or
issuance with respect to the Company or any of its officers, directors, shareholders, partners,
employees, Subsidiaries or affiliates that may affect the Underwriters’ compensation as determined
by FINRA.
(ii) Except as disclosed in the Pricing Prospectuses and the Prospectuses, neither the Company
nor any of its Subsidiaries (i) has any material lending or other relationship with any bank or
lending affiliate of any of the Underwriters and (ii) intends to use any of the proceeds from the
sale of the Shares hereunder to repay any outstanding debt owed to any affiliate of any of the
Underwriters.
(jj) Except as disclosed in the Pricing Prospectuses and the Prospectuses, (i) the Company and
each Material Subsidiary owns or leases all such properties as are necessary to the conduct of its
business as presently operated and as proposed to be operated as described in the Pricing
Prospectuses and the Prospectuses; (ii) to the knowledge of the Company, it and the Material
Subsidiaries have good and marketable title to all real property and good and marketable title to
all personal property owned by them, in each case free and clear of any and all Liens except such
as are described in the Pricing Prospectuses and the Prospectuses or such as do not (individually
or in the aggregate) materially affect the value of such property or materially interfere with the
use made or proposed to be made of such property by the Company and the Material Subsidiaries; and
any real property and buildings held under lease or sublease by the Company and the Material
Subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions
as are not material to, and do not materially interfere with, the use
12
made and proposed to be made of such property and buildings by the Company and the Material
Subsidiaries; and (iii) neither the Company nor any Material Subsidiary has received any notice of
any claim adverse to its ownership of any real or personal property or of any claim against the
continued possession of any real property, whether owned or held under lease or sublease by the
Company or any Material Subsidiary, except as could not reasonably be expected to have a Material
Adverse Effect.
(kk) All interests in material mining claims, concessions, exploitation or extraction rights
or similar rights (“Mining Claims”) that are held by the Company or any of its Material
Subsidiaries are in good standing, are valid and enforceable, are free and clear of any material
liens or charges, and no material royalty is payable in respect of any of them, except as disclosed
in the Pricing Prospectuses and the Prospectuses. Except as disclosed in the Pricing Prospectuses
and the Prospectuses, no other material property rights are necessary for the conduct of the
Company’s business as described therein, and there are no material restrictions on the ability of
the Company and its Material Subsidiaries to use, transfer or otherwise exploit any such property
rights except as required by applicable law or as set forth in the agreements listed in Exhibit B
hereto (collectively, the “Material Agreements”). Except as disclosed in the Pricing Prospectuses
and the Prospectuses, the Mining Claims held by the Company or its Material Subsidiaries cover the
properties required by the Company for the purposes described therein.
(ll) Except as disclosed in the Pricing Prospectuses and the Prospectuses, the information
relating to estimates by the Company of the proven and probable reserves and the measured,
indicated and inferred resources associated with its mineral property projects contained in the
Pricing Prospectuses and the Prospectuses has been prepared in all material respects in accordance
with National Instrument 43-101- “Standards of Disclosure for Mineral Projects.” The Company
believes that all of the assumptions underlying such reserve and resource estimates are reasonable
and appropriate, and that the projected production and operating results relating to its projects
and summarized in the Pricing Prospectuses and the Prospectuses are achievable by the Company.
(mm) The Company and the Material Subsidiaries maintain insurance in such amounts and covering
such risks as the Company reasonably considers adequate for the conduct of its business and the
value of its properties and as is customary for companies engaged in similar businesses in similar
industries, all of which insurance is in full force and effect, except where the failure to
maintain such insurance could not reasonably be expected to have a Material Adverse Effect. There
are no material claims by the Company or any Material Subsidiary under any such policy or
instrument as to which any insurance company is denying liability or defending under a reservation
of rights clause. The Company reasonably believes that it will be able to renew its existing
insurance as and when such coverage expires or will be able to obtain replacement insurance
adequate for the conduct of the business and the value of its properties at a cost that would not
have a Material Adverse Effect.
(nn) The Company and each Subsidiary has accurately prepared and timely filed all U.S.,
Canadian and foreign tax returns that are required to be filed by it and has paid or made provision
for the payment of all taxes, assessments, governmental or other similar charges, including without
limitation, all sales and use taxes and all taxes which the Company or any
13
Subsidiary is obligated to withhold from amounts owing to employees, creditors and third
parties, with respect to the periods covered by such tax returns (whether or not such amounts are
shown as due on any tax return), except in any such case as could not reasonably be expected to
have a Material Adverse Effect. No deficiency assessment with respect to a proposed adjustment of
the Company’s or any Subsidiary’s Canadian federal and provincial, U.S. federal and state, local or
foreign taxes is pending or, to the best of the Company’s knowledge, threatened. The accruals and
reserves on the books and records of the Company and the Subsidiaries in respect of tax liabilities
for any taxable period not finally determined are adequate to meet any assessments and related
liabilities for any such period and, since the date of the most recent audited consolidated
financial statements, the Company and the Subsidiaries have not incurred any liability for taxes
other than in the ordinary course of its business. There is no tax lien, whether imposed by any
U.S., Canadian or other taxing authority, outstanding against the assets, properties or business of
the Company or any Subsidiary.
(oo) There are no transfer taxes or other similar fees or charges under Canadian or U.S.
federal law or the laws of any state, province or any political subdivision thereof, required to be
paid in connection with the execution and delivery of this Agreement or the issuance by the Company
or sale by the Company of the Shares.
(pp) No stamp duty, registration or documentary taxes, duties or similar charges are payable
under the federal laws of Canada or the laws of any province in connection with the creation,
issuance, sale and delivery to the Underwriters of the Shares or the authorization, execution,
delivery and performance of this Agreement or the resale of Shares by an Underwriter to U.S.
residents.
(qq) No dispute between the Company and any local, native or indigenous group exists or is
threatened or imminent with respect to any of the Company’s properties or exploration activities
that could reasonably be expected to have a Material Adverse Effect.
(rr) No labor disturbance by the employees of the Company or any Material Subsidiary exists
or, to the best of the Company’s knowledge, is imminent and the Company is not aware of any
existing or imminent labor disturbances by the employees of any of its or any Material Subsidiary’s
principal suppliers, manufacturers, customers or contractors, which, in either case (individually
or in the aggregate), could reasonably be expected to have a Material Adverse Effect.
(ss) There has been no storage, generation, transportation, handling, use, treatment,
disposal, discharge, emission, contamination, release or other activity involving any kind of
hazardous, toxic or other wastes, pollutants, contaminants, petroleum products or other hazardous
or toxic substances, chemicals or materials (“Hazardous Substances”) by, due to, on behalf of, or
caused by the Company or any Subsidiary (or, to the Company’s knowledge, any other entity for whose
acts or omissions the Company is or may be liable) upon any property now or previously owned,
operated, used or leased by the Company or any Subsidiary, or upon any other property, which would
be a violation of or give rise to any liability under any applicable law, rule, regulation, order,
judgment, decree or permit, common law provision or other legally binding standard relating to
pollution or protection of human health and the
14
environment (“Environmental Law”), except for violations and liabilities which, individually
or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. There has
been no disposal, discharge, emission contamination or other release of any kind at, onto or from
any such property or into the environment surrounding any such property of any Hazardous Substances
with respect to which the Company or any Subsidiary has knowledge, except as could not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. There
is no pending or, to the best of the Company’s knowledge, threatened administrative, regulatory or
judicial action, claim or notice of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company or any Subsidiary. No property of the
Company or any Subsidiary is subject to any Lien under any Environmental Law. Except as disclosed
in the Pricing Prospectuses and the Prospectuses, neither the Company nor any Subsidiary is subject
to any order, decree, agreement or other individualized legal requirement related to any
Environmental Law, which, in any case (individually or in the aggregate), could reasonably be
expected to have a Material Adverse Effect.
(tt) In the ordinary course of its business, the Company periodically reviews the effect of
Environmental Laws on the business, operations and properties of the Company and its Subsidiaries,
in the course of which it identifies and evaluates associated costs and liabilities (including,
without limitation, any capital or operating expenditures required for clean-up, closure or
remediation of properties or compliance with Environmental Laws, or any permit, license or
approval, any related constraints on operating activities and any potential liabilities to third
parties). On the basis of such review, the Company has reasonably concluded that such associated
costs and liabilities would not, individually or in the aggregate, have a Material Adverse Effect.
(uu) None of the Company, any Subsidiary or, to the Company’s knowledge, any of its employees
or agents, has at any time during the last five years (i) made any unlawful contribution to any
candidate for non-United States office, or failed to disclose fully any such contribution in
violation of law, or (ii) made any payment to any federal 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 of any jurisdiction thereof. The operations
of the Company and each Subsidiary are and have been conducted at all times in compliance with
applicable financial record-keeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering statutes of all applicable
jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations
or guidelines issued, administered or enforced by any governmental agency (collectively, the “Money
Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any Subsidiary with respect to the
Money Laundering Laws is pending or, to the best knowledge of the Company, threatened. Neither the
Company nor any Subsidiary nor, to the knowledge of the Company, any director, officer, agent,
employee or affiliate of the Company or any Subsidiary is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and
the Company will not directly or indirectly use the proceeds of the Offering, or lend, contribute
or otherwise make available such proceeds to any Subsidiary, joint venture partner or other person or entity, for the purpose of financing the
activities of any person currently subject to any U.S. sanctions administered by OFAC.
15
(vv) Neither the Company nor any Material Subsidiary (i) is in violation of its certificate or
articles of incorporation, by-laws, certificate of formation, limited liability company agreement,
partnership agreement or other organizational documents, (ii) is in default under, and no event has
occurred which, with notice or lapse of time or both, would constitute a default under or result in
the creation or imposition of any Lien upon any property or assets of the Company or any Material
Subsidiary pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which it is a party or by which it is bound or to which any of its property or
assets is subject, or (iii) is in violation of any statute, law, rule, regulation, ordinance,
directive, judgment, decree or order of any judicial, regulatory or other legal or governmental
agency or body, Canadian, U.S. or foreign, except in any such case for violations or defaults that
could not (individually or in the aggregate) reasonably be expected to have a Material Adverse
Effect.
(ww) The Company has complied with the requirements of Rule 433 under the Securities Act with
respect to each Issuer Free Writing Prospectus including, without limitation, all prospectus
delivery, filing, record retention and legending requirements applicable to any such Issuer Free
Writing Prospectus. The Company has not (i) distributed any offering material in connection with
the Offering other than the Pricing Prospectuses, the Prospectuses and any Issuer Free Writing
Prospectus set forth on Annex IV hereto, or (ii) filed, referred to, approved, used or authorized
the use of any “free writing prospectus” as defined in Rule 405 under the Securities Act with
respect to the Offering or the Shares, except for any Issuer Free Writing Prospectus set forth in
Annex IV hereto and any electronic road show previously approved by the Lead Manager.
(xx) The Company is a reporting issuer under the securities laws of each Canadian Jurisdiction
that recognizes the concept of reporting issuer and is not on the list of defaulting reporting
issuers maintained by the Canadian Authority in each such Canadian Jurisdiction that maintains such
a list.
(yy) Computershare Investor Services Inc. at its principal offices in the cities of Vancouver,
British Columbia and Toronto, Ontario is the duly appointed registrar and transfer agent of the
Company with respect to its common shares, and Computershare Trust Company, Inc. at its principal
office in Denver, Colorado is the duly appointed U.S. co-transfer agent of the Company with respect
to its common shares.
(zz) The minute books and corporate records of the Company and its Material Subsidiaries are
true and correct in all material respects and contain all minutes of all meetings and all
resolutions of the directors (and any committees of such directors) and shareholders of the Company
and its Material Subsidiaries as at the date hereof and at the Closing Date will contain the
minutes of all meetings and all resolutions of the directors (and any committees of such directors)
and shareholders of the Company and its Material Subsidiaries.
16
(aaa) The Company is, and upon completion of the transactions described herein, will be, a
“foreign private issuer” within the meaning of Rule 3b-4 under the Exchange Act.
(bbb) Each stock option granted under any stock option plan of the Company or any Subsidiary
(each, a “Stock Plan”) was granted with a per share exercise price no less than the fair market
value per Common Share on the grant date of such option, and no such grant involved any
“back-dating,” “forward-dating” or similar practice with respect to the effective date of such
grant; each such option (i) was granted in compliance with applicable law and with the applicable
Stock Plan(s), (ii) was duly approved by the board of directors (or a duly authorized committee
thereof) of the Company or such Subsidiary, as applicable, and (iii) has been properly accounted
for in the Company’s financial statements and disclosed, to the extent required, in the Company’s
filings or submissions with the Commission and the Canadian Qualifying Authorities.
Any certificate signed by or on behalf of the Company and delivered to the Lead Manager or to
counsel for the Underwriters shall be deemed to be a representation and warranty by the Company to
each Underwriter and Sub-Underwriter as to the matters covered thereby.
2. Purchase, Sale and Delivery of the Shares.
(a) On the basis of the representations, warranties, covenants and agreements herein
contained, but subject to the terms and conditions herein set forth, the Company agrees to sell to
each Underwriter and each Underwriter, severally and not jointly, agrees to purchase from the
Company, at the U.S. purchase price set forth in Annex IV hereto, the number of Firm Shares set
forth opposite their respective names on Schedule I hereto together with any additional number of
Shares which such Underwriter may become obligated to purchase pursuant to the provisions of
Section 9 hereof. As compensation for the services rendered to the Company by the Underwriters in
respect of the Offering, the Company will pay to the Underwriters a commission for Shares sold to
the Underwriters under this Agreement, in U.S. currency, as set forth in Annex IV hereto, payable
on the Closing Date (as defined below), which may be netted against payment from the Underwriters
to the Company for the Firm Shares.
(b) Payment of the purchase price for, and delivery of certificates representing, the Firm
Shares shall be made at the offices of Xxxxxx Xxxxxxx LLP or at such other place as shall be agreed
upon by the Lead Manager and the Company, at 5:45 A.M., Vancouver time, on August 17, 2009, or such
other time and date as the Lead Manager and the Company may agree upon in writing (such time and
date of payment and delivery being herein called the “Closing Date”). Delivery of certificates for
the Firm Shares shall be made to the Lead Manager through the facilities of The Depository Trust
Company for the respective accounts of the several Underwriters against payment of the purchase
price for the Firm Shares by wire transfer in same day funds to or as directed in writing by the
Company. Certificates for the Firm Shares shall be registered in such name or names and shall be
in such denominations as the Lead Manager may request. The Company will permit the Lead Manager to
examine and package such certificates for delivery at least one full business day prior to the
Closing Date.
17
(c) In addition, on the basis of the representations, warranties, covenants and agreements
herein contained, but subject to the terms and conditions herein set forth, the Company hereby
grants to the Underwriters, acting severally and not jointly, the option to purchase up to 272,528
Additional Shares at the same purchase price per share to be paid by the Underwriters for the Firm
Shares and at the same commission per share to be received by the Underwriters as set forth in
Section 2(a) above, for the sole purpose of covering over-allotments in the sale of Firm Shares by
the Underwriters. This option may be exercised at any time and from time to time, in whole or in
part on one or more occasions, on or before the thirtieth day following the Closing Date, by
written notice from the Lead Manager to the Company. Such notice shall set forth the aggregate
number of Additional Shares as to which the option is being exercised and the date and time, as
reasonably determined by the Lead Manager, when the Additional Shares are to be delivered (any such
date and time being herein sometimes referred to as the “Additional Closing Date”); provided,
however, that no Additional Closing Date shall occur earlier than the Closing Date or earlier than
the second full business day after the date on which the option shall have been exercised nor later
than the eighth full business day after the date on which the option shall have been exercised.
Upon any exercise of the option as to all or any portion of the Additional Shares, each
Underwriter, acting severally and not jointly, agrees to purchase from the Company the number of
Additional Shares that bears the same proportion of the total number of Additional Shares then
being purchased as the number of Firm Shares set forth opposite the name of such Underwriter in
Schedule I hereto (or such number increased as set forth in Section 9 hereof) bears to the total
number of Firm Shares that the Underwriters have agreed to purchase hereunder, subject, however, to
such adjustments to eliminate fractional shares as the Lead Manager in its sole discretion shall
make.
(d) Payment of the purchase price for, and delivery of certificates representing, the
Additional Shares shall be made at the office of Xxxxxx Xxxxxxx LLP, or at such other place as
shall be agreed upon by the Lead Manager and the Company, at 5:45 A.M., Vancouver time, on the
Additional Closing Date, or such other time as shall be agreed upon by the Lead Manager and the
Company. Delivery of certificates for the Additional Shares shall be made to the Lead Manager
through the facilities of The Depository Trust Company for the respective accounts of the several
Underwriters against payment of the purchase price for the Additional Shares by wire transfer in
same day funds to or as directed in writing by the Company. Certificates for the Additional Shares
shall be registered in such name or names and shall be in such denominations as the Lead Manager
may request. The Company will permit the Lead Manager to examine and package such certificates for
delivery at least one full business day prior to the Additional Closing Date.
(e) The Company acknowledges and agrees that (i) the terms of this Agreement and the Offering
(including the price of the Shares and commission with respect to the Shares) were negotiated at
arm’s length between sophisticated parties represented by counsel; (ii) the Underwriters’
obligations to the Company in respect of the Offering are set forth in this Agreement in their
entirety and (iii) it has obtained such legal, tax, accounting and other advice as it deems
appropriate with respect to this Agreement and the transactions contemplated hereby and any other
activities undertaken in connection therewith, and it is not relying on the Underwriters or the
Sub-Underwriters with respect to any such matters.
18
3. Offering. Upon authorization of the release of the Firm Shares by the Lead
Manager, the Underwriters and the Sub-Underwriters propose to offer the Shares for sale to the
public upon the terms and conditions set forth in the Prospectuses.
4. Covenants of the Company. In addition to the other covenants and agreements of the
Company contained herein, the Company further covenants and agrees with each of the Underwriters
and the Sub-Underwriters that:
(a) The Company will comply with the Shelf Procedures and General Instruction II.L of Form
F-10 under the Securities Act. Prior to the later of the last date on which an Additional Closing
Date, if any, may occur, and the termination of the Offering of the Shares, the Company will not
file any amendment to the Registration Statement or supplement or amendment to the Prospectuses
unless the Company has furnished a copy to the Lead Manager and its legal counsel for their review
prior to filing and will not file any such proposed amendment or supplement to which the Lead
Manager reasonably objects. The Company will cause the Prospectuses, properly completed, and any
supplement thereto to be filed, each in a form approved by the Lead Manager with the Canadian
Qualifying Authorities in accordance with the Shelf Procedures (in the case of the Canadian
Prospectus) and with the Commission pursuant to General Instruction II.L of Form F-10 (in the case
of the U.S. Prospectus) within the time period prescribed and will provide evidence satisfactory to
the Lead Manager of such timely filings. The Company will promptly advise the Lead Manager (1) when
the U.S. Prospectus and any supplement thereto shall have been filed with the Commission pursuant
to General Instruction II.L of Form F-10, (2) when the Canadian Prospectus shall have been filed
with the Canadian Qualifying Authorities pursuant to the Shelf Procedures, (3) when, prior to
termination of the Offering of the Shares, any amendment to the Registration Statement or the
Canadian Prospectus shall have been filed or become effective or a Decision Document in respect of
any such amendment has been issued, as the case may be, (4) of any request by the Canadian
Qualifying Authorities or the Commission for any amendment of or supplement to the Canadian
Prospectus, the Registration Statement or the U.S. Prospectus, as applicable, or for any additional
information, (5) of the Company’s intention to file, or prepare any supplement or amendment to, the
Registration Statement, the Prospectuses or any Issuer Free Writing Prospectus, (6) of the time
when any amendment to the Canadian Prospectus has been filed with or receipted by the Reviewing
Authority, or of the filing with or mailing or the delivery to the Commission for filing of any
amendment of or supplement to the Registration Statement or the U.S. Prospectus, (7) of the
issuance by the Canadian Qualifying Authorities or the Commission of any cease trade order or any
stop order suspending the effectiveness of the Canadian Prospectus or the Registration Statement,
as applicable, or any post-effective amendment thereto, or suspending the use of any Prospectuses
or any Issuer Free Writing Prospectus or, in each case, of the initiation or threatening of any
proceedings therefor, (8) of the receipt of any comments or communications from the Canadian
Qualifying Authorities, the Commission or any other regulatory authority relating to the
Prospectuses, the Registration Statement, or the listing of the Shares on the TSX or Nasdaq, and
(9) of the receipt by the Company of any notification with respect to the suspension of the
qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any
proceeding for that purpose. If the Canadian Qualifying Authorities or the Commission shall
propose or enter a cease trade order or a stop order at any time, the Company will use its reasonable best efforts to prevent the issuance of any such cease trade order or
stop order and, if issued, to obtain the lifting of such order as soon as possible.
19
(b) The Company will prepare and file with the Canadian Qualifying Authorities, promptly after
the date of this Agreement, and in any event no later than 5:30 p.m. (New York City time) on the
date of this Agreement, and in conformity in all material respects with applicable Canadian
Securities Laws, the Canadian Prospectus.
(c) The Company will prepare and file with the Commission, promptly after the date of this
Agreement, and in any event no later than 5:30 p.m. (New York City time) on the date of this
Agreement, the U.S. Prospectus.
(d) If at any time when a prospectus relating to the Shares (or, in lieu thereof, the notice
referred to in Rule 173(a) under the Securities Act) is required to be delivered under the
Securities Act, any event shall have occurred as a result of which the Pricing Disclosure Package
(prior to the availability of the U.S. Prospectus) or the U.S. Prospectus as then amended or
supplemented would, in the judgment of the Underwriters or the Company, include an untrue statement
of a material fact or omit to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances existing at the time of delivery of such
Pricing Disclosure Package or U.S. Prospectus (or, in lieu thereof, the notice referred to in Rule
173(a) under the Securities Act) to the purchaser, not misleading, or if to comply with the
Securities Act, the Exchange Act or the Rules and Regulations it shall be necessary at any time to
amend or supplement the Pricing Disclosure Package, the U.S. Prospectus or the Registration
Statement, or to file any document incorporated by reference in the Registration Statement or the
U.S. Prospectus or in any amendment thereof or supplement thereto, the Company will notify the Lead
Manager promptly and prepare and file with the Canadian Qualifying Authorities and/or the
Commission an appropriate amendment, supplement or document (in form and substance satisfactory to
the Lead Manager) that will correct such statement or omission or effect such compliance, and will
use its best efforts to have any amendment to the Registration Statement declared effective as soon
as possible.
(e) The Company will not, without the prior consent of the Lead Manager, (i) make any offer
relating to the Shares that would constitute a “free writing prospectus” as defined in Rule 405
under the Securities Act, except for any Issuer Free Writing Prospectus set forth in Annex IV
hereto and any electronic road show previously approved by the Lead Manager, or (ii) file, refer
to, approve, use or authorize the use of any “free writing prospectus” as defined in Rule 405 under
the Securities Act with respect to the Offering or the Shares. If at any time any event shall have
occurred as a result of which any Issuer Free Writing Prospectus as then amended or supplemented
would, in the judgment of the Underwriters or the Company, conflict with the information in the
Registration Statement, the Pricing Prospectuses or the Prospectuses as then amended or
supplemented or would, in the judgment of the Underwriters or the Company, include an untrue
statement of a material fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances existing at the time of
delivery to the purchaser, not misleading, or if to comply with the Securities Act or the Rules and
Regulations it shall be necessary at any time to amend or supplement any Issuer Free Writing
Prospectus, the Company will notify the Lead Manager
20
promptly and, if requested by the Lead Manager, prepare and furnish without charge to each
Underwriter and Sub-Underwriter an appropriate amendment or supplement (in form and substance
satisfactory to the Lead Manager) that will correct such statement, omission or conflict or effect
such compliance.
(f) The Company has complied and will comply in all material respects with the requirements of
Rule 433 with respect to each Issuer Free Writing Prospectus including, without limitation, all
prospectus delivery, filing, record retention and legending requirements applicable to each such
Issuer Free Writing Prospectus.
(g) The Company will promptly deliver to each of the Underwriters and the Sub-Underwriters
conformed copies of the Canadian Base Prospectus, the Canadian Pricing Prospectus and the Canadian
Prospectus, signed and certified as required by Canadian Securities Laws in the Canadian
Jurisdictions, a copy of any other document required to be filed by the Company in compliance with
Canadian Securities Laws in connection with the Offering, a conformed copy of the Registration
Statement, as initially filed and all amendments thereto, including all consents and exhibits filed
therewith and a conformed copy of the Form F-X with respect to the Registration Statement. The
Company will promptly deliver to each of the Underwriters and the Sub-Underwriters such number of
copies of the Pricing Prospectuses, Prospectuses and the Registration Statement, all amendments of
and supplements to such documents, if any, as the Underwriters or Sub-Underwriters may reasonably
request. Prior to 9:00 A.M., New York time, on the business day next succeeding the date of this
Agreement and from time to time thereafter, the Company will furnish the Underwriters and the
Sub-Underwriters with copies of the Final Prospectuses in Toronto, and on the second business day
next succeeding the date of this Agreement and from time to time thereafter, in New York City, in
such quantities as the Underwriters or Sub-Underwriters may reasonably request.
(h) Promptly from time to time, the Company will use its commercially reasonable efforts, in
cooperation with the Lead Manager, to qualify the Shares for offering and sale under the securities
laws relating to the offering or sale of the Shares of such jurisdictions, Canadian (other than
Quebec), U.S. or foreign, as the Lead Manager may designate and to maintain such qualification in
effect for so long as required for the distribution thereof; except that in no event shall the
Company be obligated in connection therewith to qualify to do business in any jurisdiction where it
is not now so qualified or to take any action that would subject it to service of process in suits,
other than those arising out of the offering or sale of the Shares, in any jurisdiction where it is
not now so subject or require registration of the Shares or require the Company to file a
prospectus in such jurisdiction or subject the Company to ongoing reporting requirements in such
jurisdiction.
(i) The Company will make generally available to its security holders as soon as practicable
an earnings statement of the Company (which need not be audited) complying with Section 11(a) of
the Securities Act.
(j) During the period of 90 days from the date of the Prospectuses (the “Lock-Up Period”),
without the prior written consent of the Lead Manager, the Company (i) will not, directly or
indirectly, issue, offer, sell, agree to issue, offer or sell, solicit offers to purchase,
21
grant any call option, warrant or other right to purchase, purchase any put option or other
right to sell, pledge, borrow or otherwise dispose of any Relevant Security, or make any public
announcement of any of the foregoing, (ii) will not establish or increase any “put equivalent
position” or liquidate or decrease any “call equivalent position” (in each case within the meaning
of Section 16 of the Exchange Act and the Rules and Regulations) with respect to any Relevant
Security, and (iii) will not otherwise enter into any swap, derivative or other transaction or
arrangement that transfers to another, in whole or in part, any economic consequence of ownership
of a Relevant Security, whether or not such transaction is to be settled by delivery of Relevant
Securities, other securities, cash or other consideration; and the Company will obtain an
undertaking in substantially the form of Annex III hereto of each of its officers and directors
listed on Schedule II attached hereto, not to engage in any of the aforementioned transactions on
their own behalf, other than the sale of Shares as contemplated by this Agreement and (i) the
Company’s issuance of its common shares upon the conversion or exchange of convertible or
exchangeable securities outstanding on the date hereof; (ii) the Company’s issuance of its common
shares upon the exercise of currently outstanding options; (iii) the Company’s issuance of its
common shares upon the exercise of currently outstanding warrants; (iv) the grant and exercise of
options under, or the issuance and sale of shares pursuant to, employee stock option plans in
effect on the date hereof, each as described in the Registration Statement, the Pricing
Prospectuses and the Prospectuses; and (v) the issuance of less than five per cent of the
outstanding common shares of the Company in connection with the acquisition of property interests
by the Company and its Subsidiaries. The Company will not qualify a prospectus under Canadian
Securities Laws or file a registration statement under the Securities Act in connection with any
transaction by the Company or any person that is prohibited pursuant to the foregoing, except for
registration statements on Form S-8 relating to employee benefit plans.
(k) During the period of three years from the effective date of the Registration Statement,
the Company will furnish to you copies of all reports or other communications (financial or other)
furnished to security holders or from time to time published or publicly disseminated by the
Company, and will deliver to you (i) as soon as they are available, copies of any reports,
financial statements and proxy or information statements furnished to or filed with the Canadian
Qualifying Authorities, the Commission, the TSX, Nasdaq, or any other securities exchange on which
any class of securities of the Company is listed; and (ii) such additional information concerning
the business and financial condition of the Company as the Underwriters or Sub-Underwriters may
from time to time reasonably request (such financial information to be on a consolidated basis to
the extent the accounts of the Company and the Subsidiaries are consolidated in reports furnished
to its security holders generally or to the Reviewing Authority or the Commission); provided,
however that, notwithstanding the foregoing, the Company shall have no obligation to provide under
this Section 4(k): (x) any document or information required to be delivered pursuant to this
paragraph that is made available on XXXXX or SEDAR; (y) any document or information that the
Company believes, acting reasonably, not to be material; or (z) any document or information that
the Company believes, acting reasonably, it is prohibited by applicable law from disclosing under
the circumstances.
(l) The Company will use its commercially reasonable efforts to effect and maintain the
listing of the Shares on the TSX and Nasdaq for a period of at least three years from the date of
this Agreement.
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(m) The Company will apply the net proceeds from the sale of the Shares as set forth under the
caption “Use of Proceeds” in the Pricing Prospectuses and the Prospectuses.
(n) The Company will not take, and will cause its affiliates (within the meaning of Rule 144
under the Securities Act) not to take, directly or indirectly, any action which constitutes or is
designed to cause or result in, or which could reasonably be expected to constitute, cause or
result in, the stabilization or manipulation of the price of any security to facilitate the sale or
resale of the Shares.
(o) The Company shall provide the Lead Manager with a draft of any press release to be issued
in connection with the Offering of the Shares, and will provide the Lead Manager and its counsel
sufficient time to comment thereon and will accept all reasonable comments of the Lead Manager and
its counsel on such press releases.
(p) Each Underwriter, severally and not jointly, covenants and agrees with the Company that
such Underwriter will not use or refer to any “free writing prospectus” (as defined in Rule 405
under the Securities Act) without the prior written consent of the Company, except for any Issuer
Free Writing Prospectus set forth in Annex IV hereto and any electronic road show previously
approved by the Lead Manager. The Company and each Underwriter, severally and not jointly, agrees
that any such free writing prospectus, the use of which has been consented to by the Company and
the Underwriters, is listed in Annex IV hereto.
5. Payment of Expenses. Whether or not the transactions contemplated by this
Agreement, the Registration Statement and the Prospectuses are consummated or this Agreement is
terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of
its obligations hereunder, including the following: (i) all expenses in connection with the
preparation, printing and filing of the Registration Statement, the Base Prospectuses, the Pricing
Prospectuses, the Prospectuses, any Issuer Free Writing Prospectus and any and all amendments and
supplements thereto and the mailing and delivering of copies thereof to the Underwriters,
Sub-Underwriters and dealers; (ii) the fees, disbursements and expenses of the Company’s counsel
and accountants in connection with the qualification of the Shares under Canadian Securities Laws,
the registration of the Shares under the Securities Act and the Offering; (iii) the cost of
producing this Agreement and any agreement among Underwriters, blue sky survey, closing documents
and other instruments, agreements or documents (including any compilations thereof) in connection
with the Offering; (iv) all expenses in connection with the qualification of the Shares for
offering and sale under United States state securities, or “blue sky”, laws as provided in Section
4(f) hereof, including the reasonable fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with any blue sky survey; (v) the reasonable
fees and disbursements of counsel for the Underwriters in connection with compliance with the rules
and regulations of FINRA in connection with the Offering; (vi) all fees and expenses in connection
with listing the Shares on the TSX and Nasdaq; (vii) all travel expenses of the Company’s officers
and employees and any other expense of the Company incurred in connection with attending or hosting
meetings with prospective purchasers of the Shares; and (viii) any transfer taxes incurred in
connection with this Agreement or the Offering. The Company also will pay or cause to be paid: (a)
the cost of preparing certificates representing the Shares; (b) the cost and charges of any
transfer agent or registrar for the Shares;
23
(c) the costs and expenses of the Underwriters, including the fees of their counsel, any
experts or consultants retained by them and other out of pocket expenses incurred by them in
connection with the transactions contemplated by this Agreement, up to an aggregate of US$150,000;
and (d) all other costs and expenses incident to the performance of its obligations hereunder which
are not otherwise specifically provided for in this Section 5. It is understood, however, that
except as provided in Sections 7, 8 and 11 hereof, the Underwriters will pay their own costs and
expenses (as more fully described above) in excess of an aggregate of US$150,000, and transfer
taxes on the resale of any of the Shares by them, in connection with the transactions contemplated
by this Agreement.
6. Conditions of Underwriters’ Obligations. The several obligations of the
Underwriters to purchase and pay for the Firm Shares and the Additional Shares, as provided herein,
shall be subject to the accuracy of the representations and warranties of the Company herein
contained, as of the date hereof and as of the Closing Date (for purposes of this Section 6,
“Closing Date” shall refer to the Closing Date for the Firm Shares and any Additional Closing Date,
if different, for the Additional Shares), to the performance by the Company of all of its
obligations hereunder, and to each of the following additional conditions:
(a) The Canadian Prospectus shall have been filed with the Canadian Qualifying Authorities and
the U.S. Prospectus shall have been filed with the Commission in a timely fashion in accordance
with Section 4 hereof; no order of any securities commission, securities regulatory authority or
stock exchange in Canada to cease distribution of the Shares under the Canadian Prospectus, as
amended or supplemented, shall have been issued, and no proceedings for such purpose shall have
been instituted or, to the knowledge of the Company, threatened; no stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment thereto, and no stop
order suspending or preventing the use of the U.S. Pricing Prospectus, the U.S. Prospectus or any
Issuer Free Writing Prospectus, shall have been issued by the Commission and no proceedings
therefor shall have been initiated or threatened by the Commission; all requests for additional
information on the part of the Canadian Qualifying Authorities or the Commission shall have been
complied with to the Underwriters’ reasonable satisfaction; and all necessary regulatory or stock
exchange approvals shall have been received.
(b) At the Closing Date, you shall have received the written opinion of Xxxxxx Xxxxxxx LLP,
Canadian counsel for the Company, dated the Closing Date and addressed to the Underwriters and the
Sub-Underwriters, in form and substance satisfactory to the Underwriters, to the effect set forth
in Annex I hereto.
(c) At the Closing Date, you shall have received the written opinion of Xxxx, Weiss, Rifkind,
Xxxxxxx & Xxxxxxxx LLP, United States counsel for the Company, dated the Closing Date and addressed
to the Underwriters and the Sub-Underwriters, in form and substance satisfactory to you, to the
effect set forth in Annex II hereto.
(d) At the Closing Date, you shall have received the written opinion of Argentinian counsel to
Company, Canadian counsel to the Company, Mexican counsel to the Company and Peruvian counsel to
the Company, each dated the Closing Date and addressed to the Underwriters and the
Sub-Underwriters, in form and substance satisfactory to the
24
Underwriters, as to ownership by the Company and its Material Subsidiaries of the Pirquitas
Project, the Diablillos Project, the San Xxxx Project, the Snowfield Project and the Pitarrilla
Project, and with respect to such matters related to the transactions contemplated hereby
reasonably requested by the Underwriters.
(e) At the Closing Date, you shall have received the written opinion of local counsel in the
jurisdictions of incorporation of the Company’s Material Subsidiaries, dated the Closing Date and
addressed to the Underwriters and the Sub-Underwriters, in form and substance satisfactory to the
Underwriters, as to ownership of the Material Subsidiaries, due incorporation or organization,
valid existence and good standing (if such concept is recognized in such jurisdiction) and such
other matters as may reasonably be requested by the Underwriters.
(f) At the Closing Date, you shall have received the written opinion of Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, the Underwriters’ United States counsel, and Blake, Xxxxxxx & Xxxxxxx LLP, the
Underwriters’ Canadian counsel, (together, “Underwriters’ Counsel”), dated the Closing Date and
addressed to the Underwriters and the Sub-Underwriters, in form and substance satisfactory to the
Underwriters, with respect to the issuance and sale of the Shares, the Canadian Prospectus, the
Registration Statement, the Pricing Disclosure Package, the U.S. Prospectus and such other matters
as you may require, and the Company shall have furnished to Underwriters’ Counsel such documents as
they may reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the Closing Date, the Underwriters and the Sub-Underwriters shall have received a
certificate of the Chief Executive Officer and Chief Financial Officer of the Company, dated the
Closing Date, in form and substance satisfactory to the Underwriters, as to the accuracy of the
representations and warranties of the Company set forth in Section 1 hereof as of the date hereof
and as of the Closing Date, as to the performance by the Company of all of its obligations
hereunder to be performed at or prior to the Closing Date, and as to the matters set forth in
subsections (a) and (i) of this Section 6.
(h) At the time this Agreement is executed and at the Closing Date, you shall have received
comfort letters, from PricewaterhouseCoopers LLP, independent chartered accountants for the
Company, dated as of the date of this Agreement and as of the Closing Date, respectively, and
addressed to the Underwriters and the Sub-Underwriters and their respective U.S. or Canadian
affiliates, and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel.
(i) Neither the Company nor any Material Subsidiary shall have sustained, since the date of
the latest audited financial statements included or incorporated by reference in the Pricing
Prospectuses and the Prospectuses, any material loss or interference with its business or
properties from fire, explosion, flood, hurricane, accident or other calamity, whether or not
covered by insurance, or from any labor dispute or any legal or governmental proceeding, other than
as set forth in the Pricing Prospectuses and the Prospectuses (exclusive of any amendment or
supplement thereto); and subsequent to the dates as of which information is given in the
Registration Statement, the Pricing Prospectuses and the Prospectuses (exclusive of any amendment
or supplement thereto), there shall not have been any change in the share capital or
25
long-term or short-term debt of the Company or any Subsidiary or any change or any development
involving a change, whether or not arising from transactions in the ordinary course of business, in
the business, general affairs, management, condition (financial or otherwise), results of
operations, shareholders’ equity, properties or prospects of the Company and the Subsidiaries,
individually or taken as a whole, the effect of which, in any such case described above, is, in the
judgment of the Lead Manager, so material and adverse as to make it impracticable or inadvisable to
proceed with the Offering on the terms and in the manner contemplated in the Pricing Prospectuses
and the Prospectuses (exclusive of any amendment or supplement thereto).
(j) The Underwriters shall have received a duly executed lock-up agreement from each person
who is a director or officer of the Company listed on Schedule II hereto, in each case
substantially in the form attached hereto as Annex III.
(k) At the Closing Date, the Shares shall have been conditionally approved for listing on the
TSX and shall be listed on Nasdaq.
(l) At the Closing Date, FINRA shall not have raised any objection with respect to the
fairness and reasonableness of the underwriting terms and arrangements for the Offering.
(m) Prior to the Closing Date, the Company shall have furnished to the Lead Manager
satisfactory evidence of its due and valid authorization of CT Corporation System as its agent to
receive service of process in the United States pursuant to Section 14 hereof, and satisfactory
evidence from CT Corporation accepting its appointment as such agent.
(n) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such
other certificates, opinions or other documents as they may have reasonably requested.
If any of the conditions specified in this Section 6 shall not have been fulfilled when and as
required by this Agreement, or if any of the certificates, opinions, written statements or letters
furnished to the Underwriters, Sub-Underwriters or to Underwriters’ Counsel pursuant to this
Section 6 shall not be satisfactory in form and substance to the Lead Manager and to Underwriters’
Counsel, all obligations of the Underwriters and the Sub-Underwriters hereunder may be cancelled by
the Lead Manager at, or at any time prior to, the Closing Date and the obligations of the
Underwriters to purchase the Additional Shares may be cancelled by the Lead Manager at, or at any
time prior to, the Additional Closing Date. Notice of such cancellation shall be given to the
Company in writing or by telephone. Any such telephone notice shall be confirmed promptly
thereafter in writing.
7. Indemnification.
(a) The Company shall indemnify and hold harmless each Underwriter and Sub-Underwriter, each
of the officers and directors of each Underwriter and Sub-Underwriter and each other person, if
any, who controls any Underwriter or Sub-Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, against any and all losses,
26
liabilities, claims, damages and expenses whatsoever as incurred (including but not limited to
attorneys’ fees and any and all expenses whatsoever incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), joint or several, to which they or any of
them may become subject under Canadian Securities Laws, the Securities Act, the Exchange Act or
otherwise, insofar as such losses, liabilities, claims, damages or expenses (or actions in respect
thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of a
material fact contained (A) in any Pricing Prospectus or Prospectus, as originally filed or in any
supplement thereto or amendment thereof, in the Registration Statement, as originally filed or any
amendment thereof, or in any Issuer Free Writing Prospectus, or in any “issuer information” (as
defined in Rule 433(h)(2) under the Securities Act) filed or required to be filed pursuant to Rule
433(d) under the Securities Act, or (B) in any other materials or information provided to investors
by, or with the approval of, the Company in connection with the Offering, including in any “road
show” (as defined in Rule 433 under the Securities Act) for the Offering (“Marketing Materials”),
or (ii) the omission or alleged omission to state in any Pricing Prospectus or Prospectus, as
originally filed or in any supplement thereto or amendment thereof, in the Registration Statement,
as originally filed or any amendment thereof, or in any Issuer Free Writing Prospectus, or in any
“issuer information” (as defined in Rule 433(h)(2) under the Securities Act) filed or required to
be filed pursuant to Rule 433(d) under the Securities Act, or in any Marketing Materials, 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 (in the case of any prospectus), not
misleading; provided, however, that the Company will not be liable in any such case to the extent
but only to the extent that any such loss, liability, claim, damage or expense arises out of or is
based upon any such untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information furnished to the Company
by or on behalf of any Underwriter or Sub-Underwriter through the Lead Manager expressly for use
therein. The parties agree that such information provided by or on behalf of any Underwriter or
Sub-Underwriter through the Lead Manager consists solely of the material referred to in Section 16
hereof. This indemnity agreement will be in addition to any liability which the Company may
otherwise have, including but not limited to other liability under this Agreement.
(b) Each Underwriter and Sub-Underwriter, severally and not jointly, shall indemnify and hold
harmless the Company, each of the officers and directors of the Company, and each other person, if
any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, against any losses, liabilities, claims, damages and expenses whatsoever as
incurred (including but not limited to attorneys’ fees and any and all expenses whatsoever incurred
in investigating, preparing or defending against any litigation, commenced or threatened, or any
claim whatsoever, and any and all amounts paid in settlement of any claim or litigation), joint or
several, to which they or any of them may become subject under Canadian Securities Laws, the
Securities Act, the Exchange Act or otherwise, insofar as such losses, liabilities, claims, damages
or expenses (or actions in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in any Pricing Prospectus or Prospectus, as
originally filed or any amendment thereof or amendment thereto, or in the Registration Statement,
as originally filed or any amendment
27
thereof, or arise out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that any such loss, liability,
claim, damage or expense arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of any Underwriter or
Sub-Underwriter through the Lead Manager specifically for use therein; provided, however, that in
no case shall any Underwriter or Sub-Underwriter be liable or responsible for any amount in excess
of the underwriting commission applicable to the Shares to be purchased by such Underwriter or
Sub-Underwriter hereunder. The parties agree that such information provided by or on behalf of any
Underwriter or Sub-Underwriter through the Lead Manager consists solely of the material referred to
in Section 16 hereof.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice
of any claims or the commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party under such subsection, notify each
party against whom indemnification is to be sought in writing of the claim or the commencement
thereof (but the failure so to notify an indemnifying party shall not relieve the indemnifying
party from any liability which it may have under this Section 7, unless and to the extent such
failure results in the forfeiture by the indemnifying party of substantial rights and defenses). In
case any such claim or action is brought against any indemnified party, and it notifies an
indemnifying party of the commencement thereof, the indemnifying party will be entitled to
participate, at its own expense in the defense of such action, and to the extent it may elect by
written notice delivered to the indemnified party promptly after receiving the aforesaid notice
from such indemnified party, to assume the defense thereof with counsel satisfactory to such
indemnified party acting reasonably; provided however, that counsel to the indemnifying party shall
not (except with the written consent of the indemnified party) also be counsel to the indemnified
party. Notwithstanding the foregoing, the indemnified party or parties shall have the right to
employ its or their own counsel in any such case (including one local counsel in each relevant
jurisdiction), but the fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless (i) the employment of such counsel shall have been authorized
in writing by one of the indemnifying parties in connection with the defense of such action, (ii)
the indemnifying parties shall not have employed counsel to have charge of the defense of such
action within a reasonable time after notice of commencement of the action, (iii) the indemnifying
party does not diligently defend the action after assumption of the defense, or (iv) such
indemnified party or parties shall have reasonably concluded that there may be defenses available
to it or them which are different from or additional to those available to one or all of the
indemnifying parties (in which case the indemnifying parties shall not have the right to direct the
defense of such action on behalf of the indemnified party or parties), in any of which events such
fees and expenses shall be borne by the indemnifying parties. No indemnifying party shall, without
the prior written consent of the indemnified parties, effect any settlement or compromise of, or
consent to the entry of judgment with respect to, any pending or threatened claim, investigation,
action or proceeding in respect of which indemnity or contribution may be or could have been sought
by an indemnified party under this Section 7 or Section 8 hereof (whether or not the indemnified
party is an actual or potential party thereto), unless such
28
settlement, compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such claim, investigation, action or proceeding and (ii)
does not include a statement as to or an admission of fault, culpability or any failure to act, by
or on behalf of the indemnified party. If at any time an indemnified party shall have requested in
writing an indemnifying party to reimburse the indemnified party for any fees and expenses as
contemplated by this Section 7(c), then the indemnifying party agrees that it shall be liable for
any settlement of any proceeding effected without its written consent if (i) such settlement is
entered into more than 60 business days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall not have fully reimbursed the indemnified party in
accordance with such request prior to the date of such settlement and (iii) such indemnified party
shall have given the indemnifying party at least 30 days’ prior written notice of its intention to
settle.
8. Contribution. In order to provide for contribution in circumstances in which the
indemnification provided for in Section 7 hereof is for any reason held to be unavailable from any
indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company
and the Underwriters and Sub-Underwriters shall contribute to the aggregate losses, claims,
damages, liabilities and expenses of the nature contemplated by such indemnification provision
(including any investigation, legal and other expenses incurred in connection with, and any amount
paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting
in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any
contribution received by the Company from persons, other than the Underwriters and
Sub-Underwriters, who may also be liable for contribution, including persons who control the
Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
officers of the Company who signed the Canadian Prospectuses and the Registration Statement and
each director of the Company) as incurred to which the Company and one or more of the Underwriters
or Sub-Underwriters may be subject, in such proportions as is appropriate to reflect the relative
benefits received by the Company and the Underwriters and Sub-Underwriters from the Offering or, if
such allocation is not permitted by applicable law, in such proportions as are appropriate to
reflect not only the relative benefits referred to above but also the relative fault of the Company
and the Underwriters and Sub-Underwriters in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the Underwriters and
Sub-Underwriters shall be deemed to be in the same proportion as (x) the total proceeds from the
Offering (net of underwriting discounts and commissions but before deducting expenses) received by
the Company bears to (y) the underwriting discount or commissions received by the Underwriters and
Sub-Underwriters, in each case as set forth in the table on the cover page of the U.S. Prospectus.
The relative fault of each of the Company and of the Underwriters and Sub-Underwriters 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 Company or the Underwriters and Sub-Underwriters and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters and Sub-Underwriters agree that it would not be just and equitable
if contribution pursuant to this Section 8 were
29
determined by pro rata allocation (even if the Underwriters and Sub-Underwriters 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 8. The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in
this Section 8 shall be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any judicial, regulatory or other legal or governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission. Notwithstanding the provisions of this Section 8, (i)
no Underwriter or Sub-Underwriter shall be required to contribute any amount in excess of the
amount by which the discounts and commissions applicable to the Shares underwritten by it and
distributed to the public exceeds the amount of any damages which such Underwriter or
Sub-Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission 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
8, each person, if any, who controls an Underwriter or Sub-Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to
contribution as such Underwriter or Sub-Underwriter, and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
and each officer and director of the Company shall have the same rights to contribution as the
Company subject in each case to clauses (i) and (ii) of the immediately preceding sentence. 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, notify each party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall not relieve the party or parties
from whom contribution may be sought from any obligation it or they may have under this Section 8
or otherwise. The obligations of the Underwriters and Sub-Underwriters to contribute pursuant to
this Section 8 are several in proportion to the respective number of Shares to be purchased by each
of the Underwriters and Sub-Underwriters hereunder and not joint.
9. Underwriter Default.
(a) If any Underwriter or Underwriters shall default in its or their obligation to purchase
Firm Shares or Additional Shares hereunder, and if the Firm Shares or Additional Shares with
respect to which such default relates (the “Default Shares”) do not (after giving effect to
arrangements, if any, made by the Lead Manager pursuant to subsection (b) below) exceed in the
aggregate 10% of the number of Firm Shares or Additional Shares, each non-defaulting Underwriter,
acting severally and not jointly, agrees to purchase from the Company that number of Default Shares
that bears the same proportion of the total number of Default Shares then being purchased as the
number of Firm Shares set forth opposite the name of such Underwriter in Schedule I hereto bears to
the aggregate number of Firm Shares set forth opposite the names of the non-defaulting
Underwriters, subject, however, to such adjustments to eliminate fractional shares as the Lead
Manager in its sole discretion shall make.
30
(b) In the event that the aggregate number of Default Shares exceeds 10% of the number of Firm
Shares or Additional Shares, as the case may be, the Lead Manager may in its discretion arrange for
itself or for another party or parties (including any non-defaulting Underwriter or Underwriters
who so agree) to purchase the Default Shares on the terms contained herein. In the event that
within five calendar days after such a default the Lead Manager do not arrange for the purchase of
the Default Shares as provided in this Section 9, this Agreement or, in the case of a default with
respect to the Additional Shares, the obligations of the Underwriters to purchase and of the
Company to sell the Additional Shares shall thereupon terminate, without liability on the part of
the Company with respect thereto (except in each case as provided in Sections 5, 7, 8, 10 and
11(d)) or the non-defaulting Underwriters, but nothing in this Agreement shall relieve a
defaulting Underwriter or Underwriters of its or their liability, if any, to the other Underwriters
and the Company for damages occasioned by its or their default hereunder.
(c) In the event that any Default Shares are to be purchased by the non-defaulting
Underwriters, or are to be purchased by another party or parties as aforesaid, the Lead Manager or
the Company shall have the right to postpone the Closing Date or Additional Closing Date, as the
case may be for a period, not exceeding five business days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectuses or in any other
documents and arrangements, and the Company agrees to file promptly any amendment or supplement to
the Registration Statement or the Prospectuses which, in the opinion of Underwriters’ Counsel, may
thereby be made necessary or advisable. The term “Underwriter” as used in this Agreement shall
include any party substituted under this Section 9 with like effect as if it had originally been a
party to this Agreement with respect to such Firm Shares and Additional Shares.
10. Survival of Representations and Agreements. All representations and warranties,
covenants and agreements of the Underwriters, the Sub-Underwriters and the Company contained in
this Agreement or in certificates of officers of the Company or any Subsidiary submitted pursuant
hereto, including the agreements contained in Section 5, the indemnity agreements contained in
Section 7 and the contribution agreements contained in Section 8, shall remain operative and in
full force and effect regardless of any investigation made by or on behalf of any Underwriter,
Sub-Underwriter or any controlling person thereof or by or on behalf of the Company, any of its
officers and directors or any controlling person thereof, and shall survive delivery of and payment
for the Shares to and by the Underwriters. The representations contained in Section 1 and the
agreements contained in Sections 5, 7, 8, 10 and 11 hereof shall survive any termination of this
Agreement, including termination pursuant to Section 9 or 11 hereof.
11. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective when the parties hereto have executed and delivered
this Agreement.
(b) The Underwriters shall have the right to terminate this Agreement at any time prior to the
Closing Date or to terminate the obligations of the Underwriters to purchase the
Additional Shares at any time prior to the Additional Closing Date, as the case may be, if, at or after the Applicable Time, (i) any domestic or international event or act or occurrence has
31
materially disrupted, or in the opinion of the Underwriters will in the immediate future materially
disrupt, the market for the Company’s securities or securities in general; or (ii) trading in the
Company’s common shares shall have been suspended by the Commission, the Canadian Qualifying
Authorities, the TSX or Nasdaq, or trading in securities generally on the New York Stock Exchange
(“NYSE”), Nasdaq or on the TSX shall have been suspended or been made subject to material
limitations, or minimum or maximum prices for trading shall have been fixed, or maximum ranges for
prices for securities shall have been required, on the NYSE, Nasdaq or TSX or by order of the
Commission or any other governmental authority having jurisdiction; or (iii) a banking moratorium
has been declared by any U.S. state or U.S. or Canadian federal authority or any material
disruption in commercial banking or securities settlement or clearance services shall have
occurred; or (iv) any downgrading shall have occurred in the Company’s corporate credit rating or
the rating accorded the Company’s debt securities by any “nationally recognized statistical rating
organization” (as defined for purposes of Rule 436(g) under the Securities Act) or any such
organization shall have publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company’s debt securities or any notice or
announcement shall have been given or made of any watch, review or possible change that does not
indicate an affirmation or improvement in the rating accorded; or (v) (A) there shall have occurred
any outbreak or escalation of hostilities or acts of terrorism involving the United States or there
is a declaration of a national emergency or war by the United States or (B) there shall have been
any other calamity or crisis or any change in political, financial or economic conditions if the
effect of any such event in (A) or (B), in the judgment of the Underwriters, makes it impracticable
or inadvisable to proceed with the offering, sale and delivery of the Firm Shares or the Additional
Shares, as the case may be, on the terms and in the manner contemplated by the Prospectuses.
(c) Any notice of termination pursuant to this Section 11 shall be in writing.
(d) If this Agreement shall be terminated pursuant to any of the provisions hereof (other than
pursuant to Section 9(b) hereof), or if the sale of the Shares provided for herein is not
consummated because any condition to the obligations of the Underwriters or the Sub-Underwriters
set forth herein is not satisfied or because of any refusal, inability or failure on the part of
the Company to perform any agreement herein or comply with any provision hereof, the Company will,
subject to demand by the Underwriters, reimburse the Underwriters for all reasonable out-of-pocket
expenses (including the reasonable fees and expenses of their counsel), incurred by the
Underwriters in connection herewith.
12. Notices. All communications hereunder, except as may be otherwise specifically
provided herein, shall be in writing, and:
(a) if sent to any Underwriter or Sub-Underwriter, shall be delivered, or faxed and confirmed
in writing, to such Underwriter or Sub-Underwriter c/o UBS Securities Canada Inc., Suite 4100, 000
Xxx Xxxxxx, Xxxxxxx, Xxxxxxx, X0X 0X0, Attention: Syndicate Department, with a copy to Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP at 000 Xxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx, X0X 0X0,
Attention: Xxxxxxxx X. Xxxxxxxx, and to Blake, Xxxxxxx & Xxxxxxx
LLP, 2600, Three Bentall Centre, 000 Xxxxxxx Xxxxxx, X.X. Xxx 00000, Xxxxxxxxx, XX X0X 0X0,
Attention: Xxx Xxxxxx;
32
(b) if sent to the Company, shall be delivered, or faxed and confirmed in writing to the
Company and its counsel at the addresses set forth in the Registration Statement;
provided, however, that any notice to an Underwriter or Sub-Underwriter pursuant to Section 7 shall
be delivered or sent by facsimile transmission to such Underwriter or Sub-Underwriter at its
address set forth in its acceptance facsimile to the Lead Manager, which address will be supplied
to any other party hereto by the Lead Manager upon request. Any such notices and other
communications shall take effect at the time of receipt thereof.
13. Parties. This Agreement shall inure solely to the benefit of, and shall be
binding upon, the Underwriters, the Sub-Underwriters and the Company and the controlling persons,
directors, officers, employees and agents referred to in Sections 7 and 8 hereof, and their
respective successors and assigns, and no other person shall have or be construed to have any legal
or equitable right, remedy or claim under or in respect of or by virtue of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the parties hereto and said controlling persons and
their respective successors, officers, directors, heirs and legal representatives, and it is not
for the benefit of any other person, firm or corporation. The term “successors and assigns” shall
not include a purchaser, in its capacity as such, of Shares from any of the Underwriters or the
Sub-Underwriters.
14. Governing Law and Jurisdiction; Waiver of Jury Trial. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York. The Company
irrevocably (a) submits to the jurisdiction of any court of the State of New York or the United
States District Court for the Southern District of the State of New York (each a “New York Court”)
for the purpose of any suit, action, or other proceeding arising out of this Agreement, or any of
the agreements or transactions contemplated by this Agreement, the Registration Statement and the
Prospectuses (each, a “Proceeding”), (b) agrees that all claims in respect of any Proceeding may be
heard and determined in any New York Court, (c) waives, to the fullest extent permitted by law, any
immunity from jurisdiction of any New York Court or from any legal process therein, (d) agrees not
to commence any Proceeding other than in a New York Court, and (e) waives, to the fullest extent
permitted by law, any claim that such Proceeding is brought in an inconvenient forum. The Company
hereby irrevocably designates CT Corporation System, 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, as agent upon whom process against the Company may be served. THE COMPANY
(ON BEHALF OF ITSELF AND, TO THE FULLEST EXTENT PERMITTED BY LAW, ON BEHALF OF ITS RESPECTIVE
EQUITY HOLDERS AND CREDITORS) HEREBY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY CLAIM BASED UPON, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT, THE REGISTRATION STATEMENT AND THE XXXXXXXXXX.
00
00. Judgment Currency. If for the purposes of obtaining judgment in any court it is
necessary to convert a sum due hereunder into any currency other than U.S. dollars, the parties
hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used
shall be the rate at which in accordance with normal banking procedures the Underwriters could
purchase U.S. dollars with such other currency in The City of New York on the business day
preceding that on which final judgment is given. The obligations of the Company in respect of any
sum due from it to any Underwriter shall, notwithstanding any judgment in any currency other than
U.S. dollars, not be discharged until the first business day, following receipt by such Underwriter
of any sum adjudged to be so due in such other currency, on which (and only to the extent that)
such Underwriter may in accordance with normal banking procedures purchase U.S. dollars with such
other currency; if the U.S. dollars so purchased are less than the sum originally due to such
Underwriter hereunder, the Company agrees, as a separate obligation and notwithstanding any such
judgment, to indemnify such Underwriter against such loss. If the U.S. dollars so purchased are
greater than the sum originally due to such Underwriter hereunder, such Underwriter agrees to pay
to the Company an amount equal to the excess of the U.S. dollars so purchased over the sum
originally due to such Underwriter hereunder.
16. The parties acknowledge and agree that, for purposes of Sections 1(c), 1(d), 1(e), 1(f)
and 7 hereof, the information provided by or on behalf of any Underwriter or Sub-Underwriter
consists solely of the material included in paragraphs 6, 12, 13, and 14 in each case under the
caption “Underwriting” in the Prospectuses, only insofar as such statements relate to selling
concession and stabilization activities that may undertaken by any Underwriter or Sub-Underwriter.
17. No Fiduciary Relationship. The Company hereby acknowledges that the Underwriters
are acting solely as underwriters in connection with the purchase and sale of the Company’s
securities contemplated hereby. The Company further acknowledges that the Underwriters are acting
pursuant to a contractual relationship created solely by this Agreement entered into on an arm’s
length basis, and in no event do the parties intend that the Underwriters act or be responsible as
a fiduciary to the Company, its management, shareholders or creditors or any other person in
connection with any activity that the Underwriters may undertake or have undertaken in furtherance
of such purchase and sale of the Company’s securities, either before or after the date hereof. The
Underwriters hereby expressly disclaim any fiduciary or similar obligations to the Company, either
in connection with the transactions contemplated by this Agreement or any matters leading up to
such transactions, and the Company hereby confirms its understanding and agreement to that effect.
The Company and the Underwriters agree that they are each responsible for making their own
independent judgments with respect to any such transactions and that any opinions or views
expressed by the Underwriters to the Company regarding such transactions, including, but not
limited to, any opinions or views with respect to the price or market for the Company’s securities,
do not constitute advice or recommendations to the Company. The Company and the Underwriters agree
that the Underwriters are acting as principal and not the agent or fiduciary of the Company and no
Underwriter has assumed, and no Underwriter will assume, any advisory responsibility in favor of
the Company with respect to the transactions contemplated hereby or the process leading thereto
(irrespective of whether any Underwriter has advised or is currently advising the Company on other
matters). The Company hereby waives and releases, to the fullest extent permitted by law, any
claims that the Company may have against the Underwriters with respect to any breach or alleged breach of any
fiduciary, advisory or similar duty to the Company in connection with the transactions contemplated
by this Agreement or any matters leading up to such transactions.
34
18. Miscellaneous. UBS, an indirect, wholly owned subsidiary of UBS AG, is not a bank
and is separate from any affiliated bank, including any U.S. branch or agency of UBS AG. Because
UBS is a separately incorporated entity, it is solely responsible for its own contractual
obligations and commitments, including obligations with respect to sales and purchases of
securities. Securities sold, offered or recommended by UBS are not deposits, are not insured by
the Federal Deposit Insurance Corporation, are not guaranteed by a branch or agency, and are not
otherwise an obligation or responsibility of a branch or agency.
19. Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but all such counterparts shall together constitute one
and the same instrument. Delivery of a signed counterpart of this Agreement by facsimile
transmission shall constitute valid and sufficient delivery thereof.
20. Headings. The headings herein are inserted for convenience of reference only and
are not intended to be part of, or to affect the meaning or interpretation of, this Agreement.
21. Time is of the Essence. Time shall be of the essence of this Agreement. As used
herein, the term “business day” shall mean any day when the Commission’s office in Washington, D.C.
is open for business.
[signature page follows]
35
If the foregoing correctly sets forth your understanding, please so indicate in the space
provided below for that purpose, whereupon this letter shall constitute a binding agreement among
us.
Very truly yours, SILVER STANDARD RESOURCES INC. |
||||
By: | /s/ Xxx Xxxxxxx | |||
Name: | Xxx Xxxxxxx | |||
Title: | Senior Vice President, Corporate | |||
Accepted as of the date first above written
UBS SECURITIES CANADA INC. |
||||
By: | /s/ Xxxxx Xxxxxx | |||
Name: | Xxxxx Xxxxxx | |||
Title: | Managing Director | |||
On behalf of itself and the other
Underwriters named in Schedule I hereto.
Underwriters named in Schedule I hereto.
XXXXXX XXXXXXX & CO. INCORPORATED |
||||
By: | /s/ Xxxx X. Xxxxx | |||
Name: | Xxxx Xxxxx | |||
Title: | Managing Director | |||
CIBC WORLD MARKETS INC. | SCOTIA CAPITAL INC. | ||||||||||
|
|||||||||||
By:
|
/s/ Xxxx XxXxxxxx | By: | /s/ Xxxxxx Xxxxx | ||||||||
Name: | Xxxx XxXxxxxx | Name: | Xxxxxx Xxxxx | ||||||||
Title: | Managing Director | Title: | Managing Director | ||||||||
|
|||||||||||
BLACKMONT CAPITAL INC. | GMP SECURITIES L.P. | ||||||||||
|
|||||||||||
By:
|
/s/ Xxxxxxx Xxxxxxx | By: | /s/ Xxxx Xxxxxxxx | ||||||||
Name: | Xxxxxxx Xxxxxxx | Name: | Xxxx Xxxxxxxx | ||||||||
Title: | Managing Director | Title: | Managing Director, Investment Banking |
NATIONAL BANK FINANCIAL INC. | SALMAN PARTNERS INC. | ||||||||||
|
|||||||||||
By:
|
/s/ Xxxxxx X. Xxxxxx | By: | /s/ Xxxxxxxx X. Xxxxxx | ||||||||
Name: | Xxxxxx X. Xxxxxx | Name: | Xxxxxxxx X. Xxxxxx | ||||||||
Title: | Managing Director | Title: | President and CEO |
As Underwriters
DEUTSCHE BANK SECURITIES LIMITED | CREDIT SUISSE SECURITIES (CANADA), INC. | ||||||||||
|
|||||||||||
By:
|
/s/ Xxx X’Xxxx | By: | /s/ Xxxxxxx Xxxx | ||||||||
Name: | Xxx X’Xxxx | Name: | Xxxxxxx Xxxx | ||||||||
Title: | Director | Title: | Vice-President, Investment Banking |
As Sub-Underwriters
SCHEDULE I
Number of Additional | ||||||||
Total Number of Firm | Sharesto be Purchased if | |||||||
Underwriter | Shares to be Purchased | Option is Fully Exercised | ||||||
UBS Securities Canada Inc. |
1,362,644 | 136,266 | ||||||
Credit Suisse Securities (USA) LLC |
197,583 | 19,758 | ||||||
Xxxxxxx Xxxx & Co. LLC |
197,583 | 19,758 | ||||||
Deutsche Bank Securities Inc. |
197,583 | 19,758 | ||||||
Xxxxxx Xxxxxxx & Co. Incorporated. |
197,583 | 19,758 | ||||||
CIBC World Markets Inc. |
149,892 | 14,989 | ||||||
Scotia Capital Inc. |
149,892 | 14,989 | ||||||
Blackmont Capital Inc. |
68,132 | 6,813 | ||||||
GMP Securities L.P. |
68,132 | 6,813 | ||||||
National Bank Financial Inc. |
68,132 | 6,813 | ||||||
Salman Partners Inc. |
68,132 | 6,813 | ||||||
Total |
2,725,288 | 272,528 | ||||||
SCHEDULE II
1. | Xxxxxx X. Xxxxxxxxxxx |
2. | Xxxxxx X. Xxxxxxx |
3. | Xxxxxx X. Xxxxxxxx |
4. | Xxxxxxx X. XxXxxxxxxx |
5. | Xxx S.Q. Xxx |
6. | Xxxxx X. Xxxxxxx |
7. | A.E. Xxxxxxx Xxxxxx | |
8. | Xxxx X. Xxxxxx FCA | |
9. | Xxxxxxx X. Xxxxxxxx, MBE |
10. | R.E. Xxxxxx Xxxxx |
11. | Xxxxx X. Xxxxxxxx |
12. | Xxxxxxx X. Xxxxxxxx |
EXHIBIT A
Material Subsidiaries
Name of Subsidiary | Jurisdiction | |
Mina Pirquitas, Inc.
|
Argentina | |
777666 B.C. Ltd.
|
British Columbia | |
Pacific Rim Mining Corporation Argentina S.A.
|
Argentina | |
Silver Standard Durango S.A. de C.V.
|
Mexico | |
Reliant Ventures S.A.C.
|
Peru | |
Silver Standard Ventures Inc.
|
British Columbia |
EXHIBIT B
Material Agreements
1. Joint venture agreement, dated September 6, 2005, between Xxxxxxxxx Silver Corporation and the
Company.
ANNEX I
Form of Opinion of Xxxxxx Xxxxxxx LLP
1. | Each of the Company and Silver Standard Ventures Inc. and 777666 B.C. Ltd. (the “Canadian Subsidiaries”) has been duly incorporated and validly exists as a corporation in good standing with respect to the filing of returns under the laws of its jurisdiction of incorporation, with all necessary corporate power and capacity to own, lease or license, as the case may be, its properties and conduct its business as described in the Prospectuses. The Company is extra-provincially or extra-territorially registered, as the case may be, in Ontario, the Yukon Territory and the Northwest Territories. |
2. | The Company has an authorized capitalization as set forth in the Prospectuses. The share capital of the Company conforms in all material respects to the description thereof contained under the heading “Description of Share Capital” in the Prospectuses. The Shares to be delivered on the Closing Date and the Additional Closing Date, if any, have been duly and validly authorized and, when delivered in accordance with the Underwriting Agreement, will be duly and validly issued, fully paid and non-assessable. The holders of the outstanding common shares of the Company are not entitled to subscribe for the Shares pursuant to preemptive or similar rights under the Company’s constating documents or the Material Agreements. All of the issued shares in the share capital of the Canadian Subsidiaries as reflected in the securities registers of the Canadian Subsidiaries are registered in the name of the Company. The form of certificates for the common shares of the Company complies with British Columbia statutory requirements, with any applicable requirements of the constating documents of the Company and with the requirements of the TSX. |
3. | To the knowledge of such counsel, no holders of securities of the Company have rights to the qualification of such securities under the Canadian Prospectus. |
4. | The outstanding common shares of the Company are listed on the TSX and the Shares have been conditionally approved for listing on the TSX. |
5. | The Underwriting Agreement has been duly and validly authorized, executed and delivered by the Company (to the extent that execution and delivery are governed by the laws of British Columbia). |
6. | To such counsel’s knowledge and other than as set forth in the Pricing Prospectuses and the Prospectuses, there are no judicial, regulatory or other legal or governmental proceedings pending by or before any court or governmental agency, authority or body to which the Company or any of its Subsidiaries is a party or of which any property of the Company or any of its Subsidiaries is the subject which, if determined adversely to the Company or any of its Subsidiaries, would individually or in the aggregate have a Material Adverse Effect; and, to such counsel’s knowledge, no such proceedings are threatened. |
7. | The execution, delivery, and performance of the Underwriting Agreement and consummation of the transactions contemplated by the Underwriting Agreement and the Prospectuses do not and will not (A) conflict with or result in a breach of any of the terms and provisions of, or constitute a default (or an event which with notice or lapse of time, or both, would constitute a default) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its Subsidiaries pursuant to the Material Agreements, or (B) violate or conflict with any provision of the constating documents of the Company or the Canadian Subsidiary, or, to the knowledge of such counsel, any judgment, decree, order, statute, rule or regulation of any Canadian court or judicial, regulatory or other legal or governmental agency or body. |
8. | The Company is a “reporting issuer” under the securities legislation of each of the Canadian Jurisdictions which provide for such status and is not on the list of defaulting issuers maintained thereunder. |
9. | The statements under the captions “Eligibility for investment”, “Certain income tax considerations for U.S. holders — Certain Canadian Federal Income Tax Considerations”, “Certain income tax considerations for Canadian holders” and “Statutory Rights of Withdrawal and Rescission” in the Canadian Prospectus and Part II — Indemnification of the Registration Statement, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, are, in all material respects, accurate summaries of such legal matters, documents and proceedings. |
10. | A Decision Document has been obtained in respect of the Canadian Preliminary Base Shelf Prospectus and the Canadian Final Base Shelf Prospectus from the Reviewing Authority and, subject to the filing of standard post-closing notices of distribution, all necessary documents have been filed, all necessary proceedings have been taken and all necessary consents, approvals, and authorizations have been obtained, in each case by the Company, under Canadian Securities Laws to permit the Shares to be offered, sold and delivered, as contemplated by the Underwriting Agreement in the Canadian Jurisdictions by or through investment dealers or brokers duly and properly registered under Canadian Securities Laws who have complied with the relevant provisions of such laws and the terms of such registration; to the knowledge of such counsel, no order suspending the distribution of the Shares has been issued, no proceedings for that purpose have been instituted or threatened by any of the Canadian Qualifying Authorities. |
11. | If the Underwriting Agreement is sought to be enforced in the Province of British Columbia in the first instance, in a court of competent jurisdiction (a “B.C. Court”): |
(a) | a B.C. Court will only take jurisdiction over such an action if it concludes it has territorial competence to do so pursuant to section 3 of the Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28, or if it has a basis for exercising its residual discretion to take jurisdiction pursuant to section 6 of that Act; |
(b) | a B.C. Court, despite concluding that it has territorial competence, retains the discretion to decline to take jurisdiction on the following grounds: |
2
(i) | to do so would be contrary to public policy, as that term is understood under the laws of the Province of British Columbia and the laws of Canada applicable therein (“Public Policy”); |
(ii) | the B.C. Court concludes that it should decline to exercise its territorial competence to hear such an action pursuant to section 11 of the Court Jurisdiction and Proceedings Transfer Act on the ground that a court of another state is a more appropriate forum in which to hear the action; |
(iii) | the B.C. Court concludes that by way of a clause in the Underwriting Agreement (the “Forum Selection Clause”), the parties have selected the courts of the State of New York as the exclusive jurisdiction for the resolution of any disputes arising out of or relating to the Underwriting Agreement, the action in question falls within the Forum Selection Clause and that there is no strong cause not to give effect to the Forum Selection Clause. A B.C. Court may conclude there is strong cause not to enforce the Forum Selection Clause where: A) it offends Public Policy; B) it was the product of grossly uneven bargaining positions; C) it is otherwise unconscionable; or D) the agreement in which the clause is found is void. |
(c) | a B.C. Court would give effect to the choice of the law of the State of New York (“New York law”) as the governing law of contract claims under the Underwriting Agreement, provided that such choice of law is bona fide (in the sense that it was not made with a view to avoiding the consequences of the laws of any other jurisdiction), provided that such choice of law is not contrary to Public Policy, and provided that such choice of law is not in conflict with a mandatory system of laws that would otherwise be the proper law of the Underwriting Agreement. We have no reason to believe that the choice of New York law to govern the Underwriting Agreement (except as to provisions in the Underwriting Agreement relating to indemnity or contribution, as to which we need express no opinion) is not bona fide, would be contrary to Public Policy, or would conflict with a mandatory system of laws that would otherwise be the proper law of the Underwriting Agreement; and |
(d) | a B.C. Court would, if it took jurisdiction over the action, subject to paragraph (c) above, recognize the choice of New York law and, upon appropriate evidence as to such law being adduced, apply such law with respect to those matters which under the laws of the Province of British Columbia are to be determined by the proper law of the Underwriting Agreement (and in particular, but without limitation, not with respect to matters of procedure), provided that none of the provisions of Underwriting Agreement, or of applicable New York law, is contrary to Public Policy and that those laws are not foreign revenue, expropriatory or penal laws or other laws of a public nature; provided, however, that, in matters of procedure, the laws of the Province of British Columbia will be applied, and a B.C. Court may not enforce an obligation enforceable under New York law where performance of the obligation would be illegal by the law of the place of performance. |
3
12. | The laws of the Province of British Columbia and the laws of Canada applicable therein permit an action to be brought in a B.C. Court on a final and conclusive judgment in personam of a New York Court that is subsisting and unsatisfied respecting the enforcement of the Underwriting Agreement that is not impeachable as void or voidable under New York law for a sum certain if: (A) the New York Court rendering such judgment had jurisdiction, as determined under British Columbia Law, over the judgment debtor and the subject matter of the action. In this context, the B.C. Court would give effect to the appointment by the Company of CT Corporation as its agent to receive service of process in the United States of America and to the provisions of the Underwriting Agreement whereby the Company submits to the jurisdiction of a New York Court; (B) such judgment was not obtained by fraud or in a manner contrary to natural justice and the enforcement thereof would not be inconsistent with Public Policy or contrary to any order made by the Attorney-General of Canada under the Foreign Extraterritorial Measures Act (Canada) or any order made by the Competition Tribunal under the Competition Act (Canada); (C) the enforcement of such judgment does not constitute, directly or indirectly, the enforcement of foreign revenue, expropriatory or penal laws or other laws of a public nature; (D) the action to enforce such judgment is commenced within the applicable limitation period; (E) in the case of a judgment obtained by default, there has been no manifest error in the granting of such judgment; and (F) no new admissible evidence, right or defence relevant to the action is discovered prior to the rendering of judgment by a B.C. Court. Under the Currency Act (Canada), a B.C. Court may only give judgment in Canadian dollars. However, pursuant to the Foreign Money Claims Act, R.S.B.C. 1996, c. 155, a B.C. court must order that the money payable under an order will be that amount of Canadian currency that is necessary to purchase the equivalent amount of a foreign currency at a chartered bank located in British Columbia at the close of business on the conversion date, if the court considers that the person in whose favour the order will be made will be most truly and exactly compensated if all or part of the money payable under the order is measured in a currency other than the currency of Canada. The conversion date under the Foreign Money Claims Act is the last day, before the day on which a payment under the order is made by the judgment debtor to the judgment creditor that said chartered bank quotes a Canadian dollar equivalent to the other currency. |
13. | No stamp or other issuance or transfer taxes or duties or withholding taxes are payable by or on behalf of the Underwriters to the Government of Canada or the Government of British Columbia or any political subdivision thereof or any authority or agency thereof or therein having power to tax in connection with (A) the issue, sale and delivery of the Shares by the Company to or for the respective accounts of the Underwriters or (B) the sale and delivery outside Canada by the Underwriters of the Shares in the manner contemplated in the Underwriting Agreement. | |
In addition, such counsel shall also state in a separate letter: |
4
“The primary purpose of our professional engagement was not to establish factual matters or
financial, accounting or statistical information. In addition, many determinations involved in the
preparation of the Canadian Prospectus and the documents incorporated by reference therein are of a
wholly or partially non-legal character or relate to legal matters outside the scope of the
Opinion. Furthermore, the limitations inherent in the independent verification of factual matters
and in the role of outside counsel are such that we have not undertaken to independently verify,
and cannot and do not assume responsibility for the accuracy, completeness or fairness of, the
statements contained in the Canadian Prospectus (other than as explicitly stated in paragraph 9 of
the Opinion).
In the course of acting as Canadian counsel to the Company in connection with the offering of
the Shares, we have participated in conferences and telephone conversations with officers and other
representatives of the Company, its U.S. counsel, your representatives and your legal counsel and
the independent registered public accountants for the Company during which conferences and
conversations the contents of the Canadian Pricing Prospectus and the Canadian Prospectus and
related matters were discussed. Based upon such participation (and relying as to materiality with
respect to factual matters to the extent we deemed reasonable on officers, employees and other
representatives of the Company), we hereby advise you that our work in connection with this matter
did not disclose any information that gave us reason to believe that (i) as of the Applicable Time,
the Pricing Disclosure Package (except for the financial statements, financial statement schedules
and other financial data included or incorporated by reference therein or omitted therefrom or from
those documents incorporated by reference and the information derived from the reports of, or
prepared under the supervision of or reviewed by (as stated therein), Mine Development Associates,
Inc., Xxxxx Xxxxxxxxxxx, CPG, Xxxxxxx Mining Industry Consultants Inc., Xxxx X. Xxxxx, X.Xx., P.
Geo., Sundance Ventures, X. Xxxxxxx Xxxxxx, P. Xxx., Xxxxx Xxxxxx Xxxxxx Xxxxxx Associates Inc.,
Xxxxxxx X. Xxxxxxxxx, P. Geo., Xxxxxx Puritch, P.Eng., Xxxxxxx Xxxxx, P.Geo., P&E Mining
Consultants Inc., Xxxxxxx Xxxxxxx, P.G., Xxxxxx Xxxxxxx, X.Xx, P.G., Xxxxx Xxxxx, P. Xxx., Ph.D.,
Xxxxx Xxxxxxxxx, X.Xx, P. Geo., Xxxx Xxxxx, CPG, Pr.Sc.Nat.; J. Xxxxxxx Xxxxxxxxxxxx, Minorex
Consulting Ltd., Resource Modeling Inc., Resource Evaluations Inc., Xxxxx Xxxxxxxx, P.Eng., Xx.
Xxxxxx Xxxxxxxx, Ph.D., P. Geo., Xxxxxxx, a Tetra Tech Company, Xxxxx X. XxXxxx, X.Xx., P. Geo.,
Xxxx X. XxxXxx, P. Eng., and the Company’s employees, Xxx Xxxxxx, X.Xx., P.Geo. and Xxxxxxx X.
XxXxxxxxxx, X.Xx., P. Eng., independent qualified persons, in reliance on the authority of such
persons as “experts”, as to which we express no such belief) included 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, not misleading or
(ii) at the time the Canadian Prospectus was issued, at the time any amended or supplemented
prospectus was issued or at the Closing Date, the Canadian Prospectus or any amendment or
supplement thereto (except for the financial statements, financial statement schedules and other
financial data included or incorporated by reference therein or omitted therefrom or from those
documents incorporated by reference and the information derived from the reports of, or prepared
under the supervision of or reviewed by (as stated therein), Mine Development Associates, Inc.,
Xxxxx Xxxxxxxxxxx, CPG, Xxxxxxx Mining Industry Consultants Inc., Xxxx X. Xxxxx, X.Xx., P. Geo.,
Sundance Ventures, X. Xxxxxxx Xxxxxx, P. Xxx., Xxxxx Xxxxxx Xxxxxx Xxxxxx Associates Inc., Xxxxxxx
X. Xxxxxxxxx, P. Geo., Xxxxxx Puritch, P.Eng., Xxxxxxx Xxxxx, P.Geo., P&E Mining
5
Consultants Inc., Xxxxxxx Xxxxxxx, P.G., Xxxxxx Xxxxxxx, X.Xx, P.G., Xxxxx Xxxxx, P. Xxx.,
Ph.D., Xxxxx Xxxxxxxxx, X.Xx, P. Geo., Xxxx Xxxxx, CPG, Pr.Sc.Nat.; J. Xxxxxxx Xxxxxxxxxxxx,
Minorex Consulting Ltd., Resource Modeling Inc., Resource Evaluations Inc., Xxxxx Xxxxxxxx, P.Eng.,
Xx. Xxxxxx Xxxxxxxx, Ph.D., P. Geo., Xxxxxxx, a Tetra Tech Company, Xxxxx X. XxXxxx, X.Xx., P.
Geo., Xxxx X. XxxXxx, P. Eng., and the Company’s employees, Xxx Xxxxxx, X.Xx., P.Geo. and Xxxxxxx
X. XxXxxxxxxx, X.Xx., P. Eng., independent qualified persons, in reliance on the authority of such
persons as “experts”, as to which we express no such belief) included 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, not misleading. For purposes of this letter, the term “Pricing Disclosure Package” means the Canadian
Pricing Prospectus taken together with the information set forth in Annex IV to the Underwriting
Agreement, to the extent determined at the Applicable Time.”
6
ANNEX II
Form of Opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP
1. | Mina Pirquitas, Inc. has been duly incorporated and is validly existing and in good standing under the laws of the State of Delaware and has all necessary corporate power and authority to own and hold its properties and conduct its business as described in the Registration Statement and the U.S. Prospectus. |
2. | All of the issued shares of capital stock of Mina Pirquitas, Inc. are owned of record directly or indirectly by the Company. |
3. | To such counsel’s knowledge, there are no persons with registration or other similar rights to have any equity or debt securities registered for sale under the Registration Statement or included in the offering contemplated by the Underwriting Agreement. |
4. | Assuming the due authorization, execution and delivery of the Underwriting Agreement under the laws of the Province of British Columbia and the federal laws of Canada applicable therein, the Underwriting Agreement (to the extent that execution and delivery are governed by the laws of the State of New York) has been duly authorized, executed and delivered by the Company. |
5. | To such counsel’s knowledge, there are no legal proceedings pending or overtly threatened against the Company or any of its subsidiaries which could reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole. |
6. | The issuance and sale of the Shares by the Company, the compliance by the Company with all of the provisions of the Underwriting Agreement and the performance by the Company of its obligations thereunder will not violate Applicable Law or any judgment, order or decree of any court or arbitrator known to such counsel. For purposes of this letter, the term “Applicable Law” means the General Corporation Law of the State of Delaware and those laws, rules and regulations of the United States of America and the State of New York, in each case which in such counsel’s experience are normally applicable to the transactions of the type contemplated by the Underwriting Agreement, except that, “Applicable Law” does not include the anti-fraud provisions of the securities laws of any applicable jurisdiction or any state securities or Blue Sky laws of the various states. |
7. | No consent, approval, authorization or order of, or filing, registration or qualification with, any Governmental Authority, which has not been obtained, taken or made is required by the Company under any Applicable Law for the issuance or sale of the Shares or the performance by the Company of its obligations under the Underwriting Agreement. For purposes of this letter, the term “Governmental Authority” means any executive, legislative, judicial, administrative or regulatory body of the State of New York, the State of Delaware or the United States of America. |
8. | The Registration Statement and the U.S. Prospectus, as of their respective effective or issue times, appear on their face to be appropriately responsive in all material respects to the requirements of the Act and the rules and regulations of the Commission under the Act (the “Rules and Regulations”), except for the financial statements, financial statement schedules and other financial data included or incorporated by reference in or omitted from either of them, as to which such counsel expresses no opinion. |
9. | The Company’s Annual Report on Form 20-F for the fiscal year ended December 31, 2008, as amended, which is incorporated by reference in the Registration Statement and U.S. Prospectus (except for financial statements, financial statement schedules and other financial data included or incorporated by reference, in or omitted from either of them, as to which such counsel expresses no opinion) appeared on its face to be appropriately responsive in all material respects when so filed to the requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and the rules and regulations thereunder. |
10. | The Form F-X appears on its face to be appropriately responsive in all material respects to the requirements of the Act and the Rules and Regulations. |
11. | The statements in the U.S. Prospectus under the headings “Certain income tax considerations for U.S. holders—Certain U.S. Federal Income Tax Considerations” and “Underwriting” to the extent that they constitute summaries of United States federal law or regulation or legal conclusions or documents, have been reviewed by such counsel and fairly summarize the matters described under that heading in all material respects. |
12. | The Company is not and, after giving effect to the offering and sale of the Shares, and the application of their proceeds as described in the U.S. Prospectus under the heading “Use of proceeds,” will not be required to be registered as an investment company under the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission promulgated thereunder. |
13. | Under the laws of the State of New York relating to submission to jurisdiction, the Corporation has, pursuant to Section 14 of the Underwriting Agreement, validly and irrevocably submitted to the personal jurisdiction of any state or federal court located in the State of New York, in any action arising out of or relating to the Underwriting Agreement or the transactions contemplated thereby, has validly and irrevocably waived any objection to the venue of a proceeding in any state court located in the State of New York, and has validly and irrevocably appointed CT Corporation System as its authorized agent for the purpose described in the Underwriting Agreement. This opinion 13 is subject to the qualification that such counsel expresses no opinion as to the enforceability of forum selection clauses in the federal courts. | |
In addition, such counsel shall also state in a separate letter: |
2
“The Company has filed with the Commission a Registration Statement on Form F-10 (File No.
333-157223) under the Securities Act. The Registration Statement was filed on February 11, 2009
and was amended on February 19, 2009. The Registration Statement became effective pursuant to Rule
467(b) under the Securities Act on February 23, 2009. All filings required by Item II.L. of Form
F-10 under the Securities Act have been made in the manner and in the time period required therein.
The Form F-X of the Company dated February 10, 2009 (the “Form F-X”) was filed with the Commission
prior to the effectiveness of the Registration Statement.
We have been advised orally by the staff of the Commission that no stop order suspending the
effectiveness of the Registration Statement has been issued and to our knowledge no proceedings for
that purpose have been initiated or are pending or are threatened by the Commission.
The primary purpose of our professional engagement was not to establish factual matters or
financial, accounting or statistical information. In addition, many determinations involved in the
preparation of the Registration Statement, U.S. Pricing Prospectus and the U.S. Prospectus and the
documents incorporated by reference therein are of a wholly or partially non-legal character or
relate to legal matters outside the scope of the Opinion. Furthermore, the limitations inherent in
the independent verification of factual matters and in the role of outside counsel are such that we
have not undertaken to independently verify, and cannot and do not assume responsibility for the
accuracy, completeness or fairness of, the statements contained in the Registration Statement, the
U.S. Pricing Prospectus or the U.S. Prospectus or the documents incorporated by reference therein
(other than as explicitly stated in paragraph 11 of the Opinion).
In the course of acting as special U.S. counsel to the Company in connection with the offering
of the Shares, we have participated in conferences and telephone conversations with officers and
other representatives of the Company, its Canadian counsel, your representatives and your legal
counsel and the independent registered public accountants for the Company during which conferences
and conversations the contents of the Registration Statement, the U.S. Pricing Prospectus, the U.S.
Prospectus and related matters were discussed. Based upon such participation (and relying as to
materiality with respect to factual matters to the extent we deemed reasonable on officers,
employees and other representatives of the Company), we hereby advise you that our work in
connection with this matter did not disclose any information that gave us reason to believe that
(i) at the time it became effective, the Registration Statement or any amendment thereto prior to
the Closing Date (except for the financial statements, financial statement schedules and other
financial data included or incorporated by reference therein or omitted therefrom or from those
documents incorporated by reference, and the information derived from the reports of, or prepared
under the supervision of or reviewed by (as stated therein) Mine Development Associates, Inc.,
Xxxxx Xxxxxxxxxxx, CPG, Xxxxxxx Mining Industry Consultants Inc., Xxxx X. Xxxxx, X.Xx., P. Geo.,
Sundance Ventures, X. Xxxxxxx Xxxxxx, P. Xxx., Xxxxx Xxxxxx Xxxxxx Xxxxxx Associates Inc., Xxxxxxx
X. Xxxxxxxxx, P. Geo., Xxxxxx Puritch, P.Eng., Xxxxxxx Xxxxx, P.Geo., P&E Mining Consultants Inc.,
Xxxxxxx Xxxxxxx, P.G., Xxxxxx Xxxxxxx, X.Xx, P.G., Xxxxx Xxxxx, P. Xxx., Ph.D., Xxxxx Xxxxxxxxx,
X.Xx, P. Geo., Xxxx Xxxxx, CPG, Pr.Sc.Nat.; J. Xxxxxxx Xxxxxxxxxxxx, Minorex Consulting Ltd.,
Resource Modeling Inc., Resource Evaluations Inc., Xxxxx Xxxxxxxx, P.Eng., Xx. Xxxxxx Xxxxxxxx,
Ph.D., P. Geo., Xxxxxxx,
3
a Tetra Tech Company, Xxxxx X. XxXxxx, X.Xx., P. Geo., Xxxx X. XxxXxx, P. Eng., and the
Company’s employees, Xxx Xxxxxx, X.Xx., P.Geo. and Xxxxxxx X. XxXxxxxxxx, X.Xx., P. Eng.,
independent qualified persons, in reliance on the authority of such persons as “experts” within the
meaning of the Act, as to which we express no such belief), included an untrue statement of a
material fact or omitted to state a material fact necessary in order to make the statements therein
not misleading; (ii) as of the Applicable Time, the Pricing Disclosure Package (except for the
financial statements, financial statement schedules and other financial data included or
incorporated by reference therein or omitted therefrom or from those documents incorporated by
reference and the information derived from the reports of, or prepared under the supervision of or
reviewed by (as stated therein), Mine Development Associates, Inc., Xxxxx Xxxxxxxxxxx, CPG, Xxxxxxx
Mining Industry Consultants Inc., Xxxx X. Xxxxx, X.Xx., P. Geo., Sundance Ventures, X. Xxxxxxx
Xxxxxx, P. Xxx., Xxxxx Xxxxxx Xxxxxx Xxxxxx Associates Inc., Xxxxxxx X. Xxxxxxxxx, P. Geo., Xxxxxx
Puritch, P.Eng., Xxxxxxx Xxxxx, P.Geo., P&E Mining Consultants Inc., Xxxxxxx Xxxxxxx, P.G., Xxxxxx
Xxxxxxx, X.Xx, P.G., Xxxxx Xxxxx, P. Xxx., Ph.D., Xxxxx Xxxxxxxxx, X.Xx, P. Geo., Xxxx Xxxxx, CPG,
Pr.Sc.Nat.; J. Xxxxxxx Xxxxxxxxxxxx, Minorex Consulting Ltd., Resource Modeling Inc., Resource
Evaluations Inc., Xxxxx Xxxxxxxx, P.Eng., Xx. Xxxxxx Xxxxxxxx, Ph.D., P. Geo., Xxxxxxx, a Tetra
Tech Company, Xxxxx X. XxXxxx, X.Xx., P. Geo., Xxxx X. XxxXxx, P. Eng., and the Company’s
employees, Xxx Xxxxxx, X.Xx., P.Geo. and Xxxxxxx X. XxXxxxxxxx, X.Xx., P. Eng., independent
qualified persons, in reliance on the authority of such persons as “experts” within the meaning of
the Act, as to which we express no such belief) included 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, not misleading or (iii) at
the time the U.S. Prospectus was issued, at the time any amended or supplemented prospectus was
issued or at the Closing Date, the U.S. Prospectus or any amendment or supplement thereto (except
for the financial statements, financial statement schedules and other financial data included or
incorporated by reference therein or omitted therefrom or from those documents incorporated by
reference, and the information derived from the reports of, or prepared under the supervision of or
reviewed by (as stated therein), Mine Development Associates, Inc., Xxxxx Xxxxxxxxxxx, CPG, Xxxxxxx
Mining Industry Consultants Inc., Xxxx X. Xxxxx, X.Xx., P. Geo., Sundance Ventures, X. Xxxxxxx
Xxxxxx, P. Xxx., Xxxxx Xxxxxx Xxxxxx Xxxxxx Associates Inc., Xxxxxxx X. Xxxxxxxxx, P. Geo., Xxxxxx
Puritch, P.Eng., Xxxxxxx Xxxxx, P.Geo., P&E Mining Consultants Inc., Xxxxxxx Xxxxxxx, P.G., Xxxxxx
Xxxxxxx, X.Xx, P.G., Xxxxx Xxxxx, P. Xxx., Ph.D., Xxxxx Xxxxxxxxx, X.Xx, P. Geo., Xxxx Xxxxx, CPG,
Pr.Sc.Nat.; J. Xxxxxxx Xxxxxxxxxxxx, Minorex Consulting Ltd., Resource Modeling Inc., Resource
Evaluations Inc., Xxxxx Xxxxxxxx, P.Eng., Xx. Xxxxxx Xxxxxxxx, Ph.D., P. Geo., Xxxxxxx, a Tetra
Tech Company, Xxxxx X. XxXxxx, X.Xx., P. Geo., Xxxx X. XxxXxx, P. Eng., and the Company’s
employees, Xxx Xxxxxx, X.Xx., P.Geo. and Xxxxxxx X. XxXxxxxxxx, X.Xx., P. Eng., independent
qualified persons, in reliance on the authority of such persons as “experts” within the meaning of
the Act, as to which we express no such belief) included 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, not misleading. For purposes of this
letter, the term “Pricing Disclosure Package” means
the U.S. Pricing Prospectus taken together with
the information set forth in Annex IV to the Underwriting Agreement, to the extent determined at
the Applicable Time.”
4
ANNEX III
Form of Lock-Up Agreement
August 12, 2009
UBS Securities Canada Inc.
As Representative of the several
Underwriters referred to below
c/o UBS Securities Canada Inc.
As Representative of the several
Underwriters referred to below
c/o UBS Securities Canada Inc.
Silver Standard Resources Inc. Lock-Up Agreement
Ladies and Gentlemen:
This letter agreement (this “Agreement”) relates to the proposed public offering (the
“Offering”) by Silver Standard Resources Inc., a British Columbia corporation (the “Company”), of
its common shares, without par value (the “Shares”).
In order to induce you and the other underwriters for which you act as representatives (the
“Underwriters”) to underwrite the Offering, the undersigned hereby agrees that, without the prior
written consent of UBS Securities Canada Inc. (the “Lead Manager”), during the period from the date
hereof until ninety (90) days from the date of the final prospectus for the Offering (the “Lock-Up
Period”), the undersigned (a) will not, directly or indirectly, offer, sell, agree to offer or
sell, solicit offers to purchase, grant any call option or purchase any put option with respect to,
pledge, borrow or otherwise dispose of any Relevant Security (as defined below), and (b) will not
establish or increase any “put equivalent position” or liquidate or decrease any “call equivalent
position” with respect to any Relevant Security (in each case within the meaning of Section 16 of
the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder), or otherwise enter into any swap, derivative or other transaction or arrangement that
transfers to another, in whole or in part, any economic consequence of ownership of a Relevant
Security, whether or not such transaction is to be settled by delivery of Relevant Securities,
other securities, cash or other consideration. As used herein “Relevant Security” means the Shares,
any other equity security of the Company or any of its subsidiaries and any security convertible
into, or exercisable or exchangeable for, any Shares or other such equity security.
Notwithstanding the foregoing, (i) the undersigned may transfer Relevant Securities by bona fide
gift, will or intestate succession, and (ii) the undersigned may transfer Relevant Securities to
any corporate entity or partnership controlled by the undersigned, provided as to (i) and (ii)
above, each resulting transferee of Relevant Securities executes and delivers to you an agreement
satisfactory to you certifying that such transferee is bound by the terms of this Agreement and has
been in compliance with the terms hereof since the date first above written as if it had been an
original party hereto.
This Agreement shall not apply to the exercise of an option to purchase any shares of the
Company’s capital stock pursuant to existing stock option plans of the Company. In addition, this Agreement shall not restrict the sale or other disposition of Relevant
Securities
that are acquired by the undersigned in the open market after the Offering is priced,
provided that any such sale or other disposition fully complies with, and is not required to be
disclosed or reported under, applicable law (including but not limited to Section 16 under the
Securities Exchange Act of 1934 and the rules and regulations promulgated thereunder).
The undersigned hereby authorizes the Company during the Lock-Up Period to cause any transfer
agent for the Relevant Securities to decline to transfer, and to note stop transfer restrictions on
the share register and other records relating to, Relevant Securities for which the undersigned is
the record holder and, in the case of Relevant Securities for which the undersigned is the
beneficial but not the record holder, agrees during the Lock-Up Period to cause the record holder
to cause the relevant transfer agent to decline to transfer, and to note stop transfer restrictions
on the share register and other records relating to, such Relevant Securities. The undersigned
hereby further agrees that, without the prior written consent of the Lead Manager, during the
Lock-up Period the undersigned (x) will not file or participate in the filing with the Securities
and Exchange Commission of any registration statement, or circulate or participate in the
circulation of any preliminary or final prospectus or other disclosure document with respect to any
proposed offering or sale of a Relevant Security and (y) will not exercise any rights the
undersigned may have to require registration with the Securities and Exchange Commission of any
proposed offering or sale of a Relevant Security.
The undersigned hereby represents and warrants that the undersigned has full power and
authority to enter into this Agreement and that this Agreement constitutes the legal, valid and
binding obligation of the undersigned, enforceable in accordance with its terms. Upon request, the
undersigned will execute any additional documents necessary in connection with enforcement hereof.
Any obligations of the undersigned shall be binding upon the successors and assigns of the
undersigned from the date first above written.
This Agreement shall terminate and be of no further force and effect in the event the Company
has not consummated the Offering by September 30, 2009.
This Agreement shall be governed by and construed in accordance with the laws of the State of
New York. Delivery of a signed copy of this letter by facsimile transmission shall be effective as
delivery of the original hereof.
[signature page follows]
Very truly yours, |
||||
By: | ||||
Print Name: | ||||
ANNEX IV
Pricing Terms included in the Disclosure Package
Number of Firm Shares Offered: 2,725,288
Number of Additional Shares Offered: 272,528
Public Offering Price per Share: US$17.00
Underwriting
Commission per Share: US$0.8925
Date of Delivery of Firm Shares: August 17, 2009
Issuer Free Writing Prospectuses
None