ELDORADO GOLD CORPORATION Common Shares EQUITY DISTRIBUTION AGREEMENT
Exhibit 99.1
ELDORADO GOLD CORPORATION
Common
Shares
EQUITY
DISTRIBUTION AGREEMENT
September
26, 2019
BMO
Xxxxxxx Xxxxx Inc.
000
Xxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx,
Xxxxxxx Xxxxxxxx X0X 0X0
BMO
Capital Markets Corp.
0 Xxxxx
Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Ladies
and Gentlemen:
Eldorado Gold
Corporation, a corporation governed by the Canada Business Corporations Act (the
“
Company”), confirms its agreement
(this “Agreement”) with BMO Xxxxxxx Xxxxx Inc. (the
“Canadian
Agent”) and BMO Capital Markets Corp., a Delaware
corporation (the “U.S.
Agent”, and together with the Canadian Agent, the
“Agents”), with
respect to the issuance and sale from time to time by the Company
of shares (the “Shares”) of the Company’s
common shares with no par value per share (the “Common Shares”), having an
aggregate offering price of up to US$125 million (the “Maximum Amount”) through or to the
Agents, as sales agents or principals, on the terms and subject to
the conditions set forth in this Agreement.
The
Company has prepared and filed with the securities regulatory
authorities (the “Canadian
Qualifying Authorities”) in each of the provinces of
Canada (the “Canadian
Qualifying Jurisdictions”) a preliminary short form
base shelf prospectus (in both the English and French languages)
dated August 6, 2019 (the “Canadian Preliminary Base
Prospectus”) and has prepared and filed with the
Canadian Qualifying Authorities in the Canadian Qualifying
Jurisdictions the Canadian Base Prospectus in respect of an
aggregate of up to US$750,000,000 (or the equivalent thereof in
Canadian dollars or any other currencies) of common shares, debt
securities, convertible securities, warrants to purchase other
Shelf Securities (as defined herein), rights, subscription
receipts, and units comprised of one or more of any of the other
Shelf Securities or any combination thereof, of the Company
(collectively, the “Shelf
Securities”) in each case in accordance with Canadian
Securities Laws. The British Columbia Securities Commission (the
“Reviewing
Authority”) is the principal regulator of the Company
under the passport system procedures provided for under
Multilateral Instrument 11-102 – Passport System and National Policy
11-202 – Process for
Prospectus Reviews in Multiple Jurisdictions in respect of
the Shelf Securities and the offering of the Shares. The Reviewing
Authority has issued a receipt evidencing that a receipt has been
issued on behalf of itself and the other Canadian Qualifying
Authorities, for the Canadian Preliminary Base Prospectus and the
Reviewing Authority has issued a receipt evidencing that a receipt
has been issued on behalf of itself and the other Canadian
Qualifying Authorities for the Canadian Base Prospectus (the
“Receipt”). The
term “Canadian Base
Prospectus” means the final short form base shelf
prospectus (in both the English and French languages) dated August
26, 2019 relating to the Shelf Securities, at the time the
Reviewing Authority issued the Receipt with respect thereto in
accordance with the applicable rules and regulations under such
laws, together with applicable published national, multilateral and
local policy statements, instruments, notices and blanket orders of
the Canadian Qualifying Authorities in each of the Canadian
Qualifying Jurisdictions as modified by the Exemption (as defined
herein) (the “Canadian
Securities Laws”), including National Instrument
44-101 – Short Form
Prospectus Distributions (“NI 44-101”) and National
Instrument 44-102 – Shelf
Distributions (“NI
44-102”), and includes all documents incorporated
therein by reference and the documents otherwise deemed to be a
part thereof or included therein pursuant to Canadian Securities
Laws, including but not limited to, all Designated News Releases.
As used herein, a “Designated
News Release” means a news release disseminated by the
Company in respect of previously undisclosed information that, in
the Company’s determination, constitutes a material fact (as
such term is defined in Canadian Securities Laws) and identified by
the Company as a “designated news release” in writing
on the face page of the version of such news release that is filed
by the Company on the System for Electronic Document Analysis and
Retrieval (“SEDAR”) in Canada. As used herein,
“Canadian Prospectus
Supplement” means the most recent prospectus
supplement (in both the English and French languages) to the
Canadian Base Prospectus relating to the Shares filed by the
Company with the Canadian Qualifying Authorities in accordance with
Canadian Securities Laws. As used herein, “Canadian Prospectus” means the
Canadian Prospectus Supplement (and any additional Canadian
prospectus supplement prepared in accordance with the provisions of
this Agreement or any Terms Agreement and filed with the Canadian
Qualifying Authorities in accordance with Canadian Securities Laws)
together with the Canadian Base Prospectus. The Canadian Prospectus
Supplement shall provide that any and all Designated News Releases
shall be deemed to be incorporated by reference in the Canadian
Base Prospectus.
The
Company has also prepared and filed with the Securities and
Exchange Commission (the “Commission”), pursuant to the
Canada/U.S. Multi-Jurisdictional Disclosure System adopted by the
Commission, a registration statement on Form F-10 (File No.
333-233055) covering the registration of the Shelf Securities under
the Securities Act of 1933, as amended (the “Act”), and the rules and
regulations of the Commission thereunder (the “Rules and Regulations”), and such
amendments to such registration statement as may have been
permitted or required to the date of this Agreement. Such
registration statement, including the Canadian Base Prospectus
(with such deletions therefrom and additions thereto as are
permitted or required by Form F-10 and the Rules and Regulations
and including exhibits to such registration statement), has become
effective in such form pursuant to Rule 467(b) under the Act. Such
registration statement on Form F-10, at any given time, including
amendments and supplements thereto to such time, the exhibits and
any schedules thereto at such time and the documents incorporated
by reference therein at such time, is herein called the
“Registration
Statement.” The Canadian Base Prospectus, with such
deletions therefrom and additions thereto as are permitted or
required by Form F-10 and the Rules and Regulations in the form in
which it appeared in the Registration Statement on the date it
became effective under the Act is herein called the
“U.S. Base
Prospectus.” “U.S. Prospectus Supplement” means
the most recent Canadian Prospectus Supplement, with such deletions
therefrom and additions thereto as are permitted or required by
Form F-10 and the Act, relating to the offering of the Shares, to
be filed by the Company with the Commission pursuant to General
Instruction II.L of Form F-10; “U.S. Prospectus” means the U.S.
Prospectus Supplement (and any additional U.S. Prospectus
Supplement prepared in accordance with the provisions of this
Agreement and filed with the Commission in accordance with General
Instruction II.L of Form F-10) together with the U.S. Base
Prospectus; “Base
Prospectuses” means, collectively, the Canadian Base
Prospectus and the U.S. Base Prospectus; “Prospectuses” means, collectively,
the Canadian Prospectus and the U.S. Prospectus;
“Prospectus
Supplements” means, collectively, the Canadian
Prospectus Supplement and the U.S. Prospectus
Supplement.
Any
reference herein to the Registration Statement, the Base
Prospectuses, the Prospectus Supplements or the Prospectuses or any
amendment or supplement thereto shall be deemed to refer to and
include the documents incorporated by reference therein, and any
reference herein to the terms “amend,”
“amendment” or “supplement” with respect to
the Registration Statement, the Base Prospectuses, the Prospectus
Supplements or the Prospectuses shall be deemed to refer to and
include the filing or furnishing of any document with or to the
Commission or Canadian Qualifying Authorities, as applicable, on or
after the effective date of the Registration Statement or the date
of the Base Prospectuses, the Prospectus Supplements or the
Prospectuses, as the case may be, and deemed to be incorporated by
reference therein. For purposes of this Agreement, all references
to the Canadian Base Prospectus, the Canadian Prospectus Supplement
and the Canadian Prospectus or any amendment or supplement thereto
shall be deemed to include any copy filed with any Canadian
Qualifying Jurisdiction pursuant to SEDAR and all references to the
Registration Statement, the U.S. Base Prospectus, the U.S.
Prospectus Supplement and the U.S. Prospectus or any amendment or
supplement thereto shall be deemed to include any copy filed with
the Commission pursuant to the its Electronic Data Gathering
Analysis and Retrieval System (“XXXXX”).
The
Company has also prepared and filed with the Commission an
appointment of agent for service of process upon the Company on
Form F-X in conjunction with the filing of the Registration
Statement.
All
references in this Agreement to financial statements and schedules
and other information which is “contained,”
“included” or “stated” in the Registration
Statement, the U.S. Base Prospectus, or the U.S. Prospectus, (or
other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other
information which is incorporated by reference in or otherwise
deemed by the Rules and Regulations to be a part of or included in
the Registration Statement, the U.S. Base Prospectus, or the U.S.
Prospectus, as the case may be; and all references in this
Agreement to amendments or supplements to the Registration
Statement, the U.S. Base Prospectus or the U.S. Prospectus shall be
deemed to mean and include the filing of any document under the
Securities Exchange Act of 1934, as amended (the
“Exchange Act”),
and which is deemed to be incorporated therein by reference or
otherwise deemed by the Rules and Regulations to be a part of or
included in the Registration Statement, the U.S. Base Prospectus,
the U.S. Prospectus, as the case may be. All references in this
Agreement to financial statements and other information which is
“described,” “contained,”
“included” or “stated” in the Canadian Base
Prospectus or the Canadian Prospectus (or other references of like
import) shall be deemed to mean and include all such financial
statements and other information which is incorporated by reference
in or otherwise deemed by Canadian Securities Laws to be a part of
or included in the Canadian Prospectus.
The
Company confirms its agreement with the Agents as
follows:
(a) Agency Transactions. On the basis of
the representations, warranties and agreements herein contained,
but subject to the terms and conditions herein set forth, the
Company and the Agents agree that the Company may issue and sell
through the Agents, as sales agents for the Company, the Shares (an
“Agency
Transaction”) as follows, provided that the market
value of Shares distributed under the Canadian Prospectus
Supplement shall not exceed 10% of the aggregate market value of
the outstanding Shares as of the date specified in Section 9.1 of
NI 44-102, which shall be calculated in accordance with Section 9.2
of NI 44-102.
(i) The Company may,
from time to time, propose to the applicable Agent the terms of an
Agency Transaction by means of a telephone call (confirmed promptly
by electronic mail in a form substantially similar to Exhibit A
hereto (an “Agency
Transaction Notice”)) from at least two of the
individuals listed as authorized representatives of the Company on
Schedule 1 hereto (each, an “Authorized Company
Representative”), such proposal to include: the
trading day(s) for the New York Stock Exchange (the
“NYSE”) or the
Toronto Stock (the “TSX”) (which may not be a day on which
the NYSE or the TSX, as applicable, is scheduled to close prior to its
regular weekday closing time) on which the Shares are to be sold
(each, a “Trading
Day”); the maximum number of Shares that the Company
wishes to sell in the aggregate and on each Trading Day; and the
minimum price at which the Company is willing to sell the Shares
(the “Floor
Price”).
(ii) If
such proposed terms for an Agency Transaction are acceptable to the
applicable Agent, it shall promptly confirm the terms by
countersigning the Agency Transaction Notice for such Agency
Transaction and emailing it to the Authorized Company
Representatives which delivered such Agency Transaction
Notice.
(iii) Subject
to the terms and conditions hereof, the applicable Agent shall,
severally and not jointly, use its commercially reasonable efforts
to sell all of the Shares designated in, and subject to the terms
of, such Agency Transaction Notice. The applicable Agent shall not
sell any Share at a price lower than the Floor Price. The Company
acknowledges and agrees with the Agents that (x) there can be no
assurance that an Agent will be successful in selling all or any of
such Shares or as to the price at which any Shares are sold, if at
all, (y) no Agent shall incur liability or obligation to the
Company or any other person or entity if they do not sell any
Shares for any reason, and (z) no Agent shall be under any
obligation to purchase any Shares on a principal basis pursuant to
this Agreement (except in the case of a Principal Transaction (as
defined below) pursuant to this Agreement and the relevant Terms
Agreement (as defined below)).
(iv) The
Agents, severally and not jointly, acknowledge and agree that the
aggregate number of Shares sold on the TSX and all other Canadian
marketplaces on any Trading Day shall not exceed 25% of the total
trading volume of the Shares on the TSX and all other Canadian
marketplaces on that Trading Day, and covenant not to exceed that
threshold.
(v) Each of the Agents
hereby covenants and agrees that, during the time an Agent receives
an Agency Transaction Notice pursuant to Section 1(a)(i) hereof
that has not been suspended or terminated in accordance with the
terms hereof, such Agent will prudently and actively monitor the
market’s reaction to trades made on any marketplace (as such
term is defined in National Instrument 21-101 - Marketplace Operation) pursuant to this
Agreement in order to evaluate the likely market impact of future
trades, and that, if such Agent has concerns as to whether a
particular sale contemplated by an Agency Transaction Notice may
have a significant effect on the market price of the Shares, the
applicable Agent will, upon receipt of the applicable Agency
Transaction Notice, recommend to the Company against effecting the
trade at that time or on the terms proposed. Notwithstanding the
foregoing, the Company acknowledges and agrees that the Agents
cannot provide complete assurances that any sale will not have a
significant effect on the market price of the Shares.
(vi) The
Agents, severally and not jointly, covenant that the Agents will
not (nor will any affiliate thereof or person or company acting
jointly or in concert therewith) over-allot Shares in connection
with the distribution of Shares in an “at-the-market
distribution” (as defined in NI 44-102) or effect any other
transactions that are intended to stabilize or maintain the market
price of the Shares in connection with such
distribution.
(vii) The
Company, acting through at least two Authorized Company
Representatives, or the applicable Agent may, upon notice to the
other party hereto by telephone (confirmed promptly by electronic
mail), suspend an offering of the Shares; provided, however, that such suspension shall not
affect or impair the parties’ respective obligations with
respect to the Shares sold hereunder prior to the giving of such
notice.
(viii) If
the terms of any Agency Transaction as set forth in an Agency
Transaction Notice contemplate that the Shares shall be sold on
more than one Trading Day, then the Company and the applicable
Agent shall mutually agree to such additional terms and conditions
as they deem necessary in respect of such multiple Trading Days,
and such additional terms and conditions shall be binding to the
same extent as any other terms contained in the relevant Agency
Transaction Notice.
(ix) The
applicable Agent, as sales agent in an Agency Transaction, shall
not make any sales of the Shares on behalf of the Company, pursuant
to this Agreement, other than by means of ordinary brokers’
transactions (x) that qualify for delivery of the Prospectus in
accordance with Rule 153 of the Rules and Regulations and meet the
definition of an “at the market offering” under Rule
415(a)(4) of the Rules and Regulations, (y) that constitute an
“at-the-market-distribution” under NI 44-102 and made
in compliance with the exemptive relief decision dated September
10, 2019 obtained by the
Company pursuant to National Policy 11-203 – Process for Exemptive Relief Applications in
Multiple Jurisdictions providing relief from certain
Canadian Securities Laws with respect to the sale of the Shares
(the “Exemption”), including, without
limitation, sales made directly on the NYSE and the TSX, or any
Canadian marketplace or United States marketplace, or (z) such
other sales of the Shares on behalf of the Company in its capacity
as agent of the Company as shall be agreed by the Company and the
applicable Agent in writing.
(x) The
compensation to each Agent for sales of the Shares in an Agency
Transaction with respect to which such Agent acts as sales agent
hereunder shall be as set forth in the Agency Transaction Notice
for such Agency Transaction but shall not exceed 2% of the gross offering proceeds of
the Shares sold in such Agency Transaction. The applicable Agent
shall provide written confirmation to the Company (which may be
provided by email to at least two of the Authorized Company
Representatives) following the close of trading on each Trading Day
on which Shares are sold in an Agency Transaction under this
Agreement, setting forth (i) the number and the average price of
Shares sold on such Trading Day, (ii) the gross offering proceeds
received from such sales, (iii) the commission payable by the
Company to such Agent with respect to such sales and (iv) the net
offering proceeds (being the gross offering proceeds for such sales
less the commission payable for such sales) (the
“Net Offering
Proceeds”).
(xi) Settlement
for sales of the Shares in an Agency Transaction pursuant to this
Agreement shall occur on the second Trading Day (or such earlier
day as is industry practice for regular-way trading) following the
date on which such sales are made (each such day, an
“Agency Settlement
Date”). On each Agency Settlement Date, the Shares
sold through the applicable Agent in Agency Transactions for
settlement on such date shall be issued and delivered by the
Company to the applicable Agent against payment by the applicable
Agent to the Company of the Net Offering Proceeds from the sale of
such Shares. Settlement for all such Shares shall be effected by
free delivery of the Shares by the Company or its transfer agent to
the applicable Agent’s or its designee’s account
(provided that the
applicable Agent shall have given the Company written notice of
such designee prior to the relevant Agency Settlement Date) at The
Canadian Depository for Securities (“CDS”), The Depository Trust
Company or by such other means of delivery as may be mutually
agreed upon by the parties hereto, which in all cases shall be
freely tradable, transferable, registered shares in good
deliverable form, in return for payment in same-day funds delivered
to the account designated by the Company. If the Company, or its
transfer agent (if applicable), shall default on its obligation to
deliver the Shares on any Agency Settlement Date, the Company shall
(i) hold the applicable Agent harmless against any loss, claim,
damage, or expense (including, without limitation, reasonable legal
fees and expenses), as incurred, arising out of or in connection
with such default by the Company and (ii) pay the applicable Agent
any commission, discount or other compensation to which it would
otherwise be entitled absent such default.
(b) Principal Transactions. If the Company
wishes to issue and sell the Shares other than as set forth in
subsection (a) of this Section 1 (each, a “Principal Transaction”), the
Company will notify the applicable Agent of the proposed terms of
such Principal Transaction. If the applicable Agent, acting as
principal, wishes to accept such proposed terms (which it may
decline to do for any reason in its sole discretion) or, following
discussions with the Company, wishes to accept amended terms, the
applicable Agent and the Company will enter into an agreement in
substantially the form of Exhibit B hereto (each, a
“Terms
Agreement”) that sets forth the terms of such
Principal Transaction, including, without limitation, the time,
date and place of delivery of and payment for the Shares to be sold
pursuant to such Principal Transaction (each of such date and each
Agency Settlement Date, a “Settlement Date”). The terms set
forth in a Terms Agreement shall not be binding on the Company or
the applicable Agent unless and until each of the Company and the
applicable Agent has executed such Terms Agreement accepting all of
such terms. The commitment of the applicable Agent to purchase the
Shares pursuant to any Terms Agreement shall be deemed to have been
made on the basis of the representations and warranties of the
Company herein contained and shall be subject to the terms and
conditions herein set forth. In the event of a conflict between the
terms of this Agreement and the terms of any Terms Agreement, the
terms of such Terms Agreement shall control.
(c) Maximum Number of Shares. Under no
circumstances shall the Company propose to any one of the Agents,
or any one of the Agents effect, a sale of Shares in an Agency
Transaction or a Principal Transaction pursuant to this Agreement
if such sale would (i) cause the aggregate gross sales proceeds of
the Shares sold pursuant to this Agreement to exceed the Maximum
Amount, (ii) cause the number of Shares sold to exceed the number
of shares of Common Shares available for offer and sale under the
then effective Canadian Prospectus or Registration Statement or
(iii) cause the number of Shares sold pursuant to this Agreement to
exceed the number of Shares authorized from time to time to be
issued and sold pursuant to this Agreement by the Company’s
board of directors, or a duly authorized committee thereof, and
notified to the applicable Agent in writing.
(d) Regulation M. If either party hereto
has reason to believe that the exemptive provisions set forth in
Rule 101(c)(1) of Regulation M under the Exchange Act are not
satisfied with respect to the Company or the Shares, it shall
promptly notify the other party and sales of Shares under this
Agreement shall be suspended until that or other exemptive
provisions have been satisfied in the judgment of each party
hereto.
(e) Black-out Periods. Notwithstanding any
other provision of this Agreement, no sales of Shares shall take
place, the Company shall not request the sales of any Shares that
would be sold and the Agents shall not be obligated to sell or
offer to sell any Shares, during any period in which the
Company’s xxxxxxx xxxxxxx or similar policy, as it exists on
the date of this Agreement, would prohibit the purchase or sale of
Common Shares by persons subject to such policy, or during any
other period in which the Company is, or could be deemed to be, in
possession of material non-public information with respect to the
Company.
(f) Continuing Accuracy of Representations and
Warranties. Any obligation of the Agents to use their
commercially reasonable efforts to sell the Shares on behalf of the
Company as sales agents shall be subject to the continuing accuracy
of the representations and warranties of the Company herein, to the
performance by the Company of its obligations hereunder and to the
continuing satisfaction of the conditions specified in Section 3 of
this Agreement.
2. Representations and Warranties of the
Company. The Company represents and warrants to, and
covenants with, the Agents as follows:
(a) Effectiveness of Registration. The
Company is qualified in accordance with the provisions of NI 44-101
and NI 44-102 to file a short form base shelf prospectus in each of
the Canadian Qualifying Jurisdictions and the entering into of this
Agreement will not cause the Receipt to no longer be effective. At
the time of filing the Registration Statement, the Company met, and
as of the date hereof the Company meets, the general eligibility
requirements for use of Form F-10 under the Act. Any amendment or
supplement to the Registration Statement or the Prospectuses
required by this Agreement or any Terms Agreement will be so
prepared and filed by the Company and, as applicable, the Company
will use commercially reasonable efforts to cause it to become
effective as soon as reasonably practicable. No stop order
suspending the effectiveness of the Registration Statement is in
effect and no proceedings for such for that purpose have been
instituted or are pending or, to the best knowledge of the Company,
are contemplated or threatened by the Commission. No order
preventing or suspending the use of the Base Prospectuses, the
Prospectus Supplements, the Prospectuses or any Permitted Free
Writing Prospectus (as defined herein) has been issued by the
Commission or any Canadian Qualifying Authority. The Canadian
Prospectus, at the time of filing thereof with the Canadian
Qualifying Authorities, complied in all material respects and, as
amended or supplemented, if applicable, will comply in all material
respects with Canadian Securities Laws. The Canadian Prospectus, as
amended or supplemented, as of its date, did not and, as of each
Time of Sale and Settlement Date, if any, will not contain a
misrepresentation, as defined under Canadian Securities Laws. The
Canadian Prospectus, as amended or supplemented, as of its date,
did and, as of each Time of Sale and Settlement Date, if any, will
contain full, true and plain disclosure of all material facts
relating to the Shares and to the Company. The representations and
warranties set forth in the two immediately preceding sentences do
not apply to statements in or omissions from the Canadian
Prospectus, or any amendments or supplements thereto, made in
reliance upon and in conformity with information relating to the
Agents furnished to the Company in writing by or on behalf of the
Agents expressly for use therein. The U.S. Prospectus, at the time
first filed in accordance with General Instruction II.L. of Form
F-10, conformed in all material respects and, as amended or
supplemented, if applicable, will conform in all material respects
to the Canadian Prospectus, except for such deletions therefrom and
additions thereto as are permitted or required by Form F-10 and the
Rules and Regulations. The Company has delivered to the Agents one
complete copy of each of the Canadian Base Prospectus and the
Registration Statement and a copy of each consent of experts filed
as a part thereof, and conformed copies of the Canadian Base
Prospectus, the Registration Statement (without exhibits) and the
Prospectuses, as amended or supplemented, in such quantities and at
such places as the Agents have reasonably requested. At the time of
filing the Registration Statement and at the earliest time after
the filing of the Registration Statement that the Company or
another offering participant made a bona fide offer (within the
meaning of Rule 164(h)(2) under the Act) of the Shares, the Company
was not and, as of the date of this Agreement, is not, an
Ineligible Issuer (as defined in Rule 405 under the Act), without
taking account of any determination by the Commission pursuant to
Rule 405 under the Act that it is not necessary that the Company be
considered an Ineligible Issuer. “Time of Sale” means, (i) with
respect to an Agency Transaction, the time of the applicable
Agent’s initial entry into contracts with investors for the
sale of such Shares and (ii) with respect to a Principal
Transaction, the time of sale of such Shares.
(b) Accuracy. Each part of the Registration
Statement, when such part became or becomes effective, at any
deemed effective date pursuant to Form F-10 and the Rules and
Regulations on the date of filing thereof with the Commission and
at each Time of Sale and Settlement Date, and the U.S. Prospectus,
on the date of filing thereof with the Commission and at each Time
of Sale and Settlement Date, conformed in all material respects or
will conform in all material respects with the requirements of the
Rules and Regulations; each part of the Registration Statement,
when such part became or becomes effective, did not and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading; and the U.S. Prospectus, on
the date of filing thereof with the Commission, and the U.S.
Prospectus and the applicable Permitted Free Writing
Prospectus(es), if any, issued at or prior to such Time of Sale,
taken together (collectively, and with respect to any Shares,
together with the public offering price of such Shares, the
“Disclosure
Package”) and at each Time of Sale and Settlement
Date, did not and will not contain any untrue statement of a
material fact or omit 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; except that the
foregoing shall not apply to statements or omissions in any such
document made in reliance upon and in conformity with information
relating to the Agents furnished in writing to the Company by the
Agents specifically for inclusion in the Registration Statement,
the U.S. Prospectus or any Permitted Free Writing Prospectus, or
any amendment or supplement thereto, it being understood and agreed
that the only such information furnished by the Agents consists of
the information described as such in Section 5(b)
hereof.
(c) Capitalization. As of the date of this
Agreement, the Company has an authorized and outstanding
capitalization as set forth in the sections of the Registration
Statement, the Prospectuses and the Disclosure Package entitled
“Consolidated Capitalization”, and, as of the time of
purchase and any additional time of purchase, as the case may be,
the Company shall have an authorized and outstanding capitalization
as set forth in the Registration Statement, the Prospectuses and
the Disclosure Package (subject, in each case, to the issuance of
Common Shares upon exercise of stock options or warrants disclosed
as outstanding in the Registration Statement, the Prospectuses and
the Disclosure Package, the grant of options under existing stock
option plans described in the Registration Statement, the
Prospectuses and the Disclosure Package); all of the issued and
outstanding share capital of the Company, being the Common Shares,
have been duly authorized and validly issued and are fully paid and
non-assessable, have been issued in compliance with all applicable
Canadian, U.S. and other securities laws and were not issued in
violation of any pre-emptive right, resale right, right of first
refusal or similar right; the Common Shares are duly listed, and
admitted and authorized for trading, on the NYSE and the
TSX.
(d) Due Incorporation. The Company has been
duly continued and is validly existing as a company in good
standing under the federal laws of Canada, with full corporate
power and authority to own, lease and operate its properties and
conduct its business as is or will be described in the Registration
Statement, the Prospectuses and the Disclosure
Package.
(e) Subsidiaries. The Company is duly
qualified to do business and is in good standing 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
or 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 its subsidiaries (each, a “Subsidiary” and, collectively, the
“Subsidiaries”),
taken as a whole, or (ii) the ability of the Company to consummate
the transactions contemplated by this Agreement (a
“Material Adverse
Effect”).
(f) Material Subsidiaries. The Subsidiaries
listed on Schedule 2 hereto (each, a “Material Subsidiary” and,
collectively, 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 Act or are
otherwise material to the Company; no Material Subsidiary is
currently prohibited, directly or indirectly, from paying any
dividends to the Company, from making any other distribution on
such Subsidiary’s capital stock, from repaying to the Company
any loans or advances to such Subsidiary from the Company or from
transferring any of such Subsidiary’s property or assets to
the Company or any other Subsidiary of the Company; 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 Registration Statement, the Prospectuses
and the Disclosure Package) 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 (each, a “Lien”); 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 the jurisdiction of its organization, with full corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement,
the Prospectuses and the Disclosure Package; each Material
Subsidiary is duly qualified to do business and is in good standing
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
or in the aggregate) could not reasonably be expected to have a
Material Adverse Effect.
(g) Agreement Duly
Authorized and No Breach of Obligations or Charter.
The Company has full
corporate power and authority to enter into this Agreement and each
Terms Agreement. This Agreement has been, and any Terms Agreement
will have been, duly authorized, executed and delivered by the
Company and this Agreement constitutes, and any Terms Agreement
will constitute, a valid and binding agreement of the Company
enforceable against the Company in accordance with the terms hereof
or thereof, as the case may be, except as the enforcement may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting
creditors’ rights generally or general equitable principles.
The execution and delivery by the Company of this Agreement and any
Terms Agreement and the performance of this Agreement and any Terms
Agreement, the consummation of the transactions contemplated hereby
and thereby, and the application of the net proceeds from the
offering and sale of the Shares to be sold by the Company in the
manner set forth in the Prospectus under “Use of
Proceeds” do not and will not (i) violate the organizational
documents of the Company or any Subsidiary of the Company or (ii)
result in the creation or imposition of any lien, charge or
encumbrance upon any of the assets of the Company or any Subsidiary
of the Company pursuant to the terms or provisions of, or result in
a breach or violation of any of the terms or provisions of, or
constitute a default under, or give any other party a right to
terminate any of its obligations under, or result in the
acceleration of any obligation under any contract to which the
Company or any of its Subsidiaries is a party or by which the
Company or any of its Material Subsidiaries or any of its
properties is bound or affected, or violate or conflict with any
judgment, ruling, decree, order, statute, rule or regulation of any
court or other governmental agency or body applicable to the
business or properties of the Company or any of its Material
Subsidiaries. This Agreement conforms in all material respects to
the description thereof contained in the Registration Statement,
the Prospectuses and the Disclosure Package.
(h) The Shares. When issued in accordance
with this Agreement or any Terms Agreement, and upon receipt of
payment for the Shares, the Shares will have been duly and validly
created and issued as fully paid and non-assessable.
(i) Compliance with Applicable Laws; No
Defaults. 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, except as disclosed in the Registration
Statement, the Prospectuses and the Disclosure Package, 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.
(j) No Violation. The execution, delivery
and performance of this Agreement and any Terms Agreement, the
distribution of the Shares and the consummation of the transactions
contemplated hereby and thereby, 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 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.
(k) No Consents Required. No consent,
approval, authorization, order, registration, qualification,
license, filing and permit of, with and from any judicial,
regulatory and other legal or governmental agencies and bodies and
any third parties, Canadian, U.S. or foreign (collectively,
“Consents”) is
required in connection with the distribution of the Shares or the
consummation of the transactions as contemplated by this Agreement
and any Terms Agreement, other than (i) as may be required under
the securities or blue sky laws of the various jurisdictions in
which the Shares are being offered, (ii) as have been obtained and
are in full force and effect, and (iii) as may be required under
the rules of the NYSE and the TSX on or before each Time of Sale
and associated Settlement Date.
(l) Due Authorization. The Company has the
necessary corporate power and authority to execute and deliver the
Registration Statement, the Prospectuses and the Disclosure Package
and, if applicable, will have the necessary corporate power and
authority to execute and deliver any amendment to the Registration
Statement or Prospectuses prior to the filing thereof, and all
necessary corporate action has been taken by the Company to
authorize the execution and delivery by it of the Registration
Statement, the Prospectuses and the Disclosure Package and the
filing thereof, as the case may be, in each of the Canadian
Qualifying Jurisdictions under Canadian Securities Laws or with the
Commission under the Act, as applicable.
(m) No Pre-emptive Rights. Except as
described in the Registration Statement, the Prospectuses and the
Disclosure Package, the Company has no outstanding warrants,
options to purchase, or any pre-emptive rights or other rights to
subscribe for or to purchase, or any contracts or commitments to
issue or sell any Shares or other security of the Company or any
security convertible into, or exercisable or exchangeable for,
Shares or any other security of the Company; except as disclosed in
the Registration Statement, the Prospectuses and the Disclosure
Package, no person has any rights to require registration or
qualification under the Act or the Canadian Securities Laws of any
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.
(n) All Requisite Consents. The Company and
each Material Subsidiary has all requisite 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 Prospectuses and the Disclosure Package, 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) Legal Proceedings. Except as disclosed
in the Registration Statement, the Prospectuses and the Disclosure
Package, 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.
(p) Independent Accountant. KPMG LLP, which
has audited the annual consolidated financial statements of the
Company that are included or incorporated by reference in the
Registration Statement, the Prospectuses and the Disclosure
Package, and whose reports appear or are incorporated by reference
in the Registration Statement, the Prospectuses and the Disclosure
Package, are independent with respect to the Company as required by
Canadian Securities Laws and are independent registered public
accountants as required by the Act, the Exchange Act and by the
rules of the Public Company Accounting Oversight
Board.
(q) No Reportable Event. 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.
(r) Financial Statements. The consolidated
financial statements of the Company, including the notes thereto,
included or incorporated by reference in the Registration
Statement, the Prospectuses and the Disclosure Package 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; said consolidated financial statements have been
prepared in conformity with International Financial Reporting
Standards as issued by the International Accounting Standards Board
(“IFRS”) applied
on a consistent basis throughout the periods involved; the other
financial and statistical information relating to the Company
included or incorporated by reference in the Registration
Statement, the Prospectuses and the Disclosure Package, present
fairly the information included therein and have been prepared on a
basis consistent with that of the financial statements of the
Company that are included or incorporated by reference in the
Registration Statement, the Prospectuses and the Disclosure Package
and the books and records of the Company.
(s) Stock Plan. Each stock option granted
under any stock option plan of the Company (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 consolidated financial statements and
disclosed, to the extent required, in the Company’s filings
or submissions with the Commission and the Canadian Qualifying
Authorities.
(t) No Material Adverse Changes. Subsequent
to the respective dates as of which information is given in the
Registration Statement, the Prospectuses and the Disclosure
Package, except as disclosed in the Registration Statement, the
Prospectuses and the Disclosure Package, (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 and its Subsidiaries taken as a
whole, (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 labour dispute or
any legal or governmental proceeding, in any such case that is
material to the Company and its Subsidiaries taken as a whole, 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; since the date
of the latest balance sheet included, or incorporated by reference,
in the Registration Statement, the Prospectuses and the Disclosure
Package, neither the Company nor any Subsidiary has incurred or
undertaken any liabilities or obligations, whether direct or
indirect, liquidated or 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 Registration Statement, the Prospectuses and the Disclosure
Package.
(u) Investment Company. The Company is not
and, after giving effect to application of the net proceeds of the
offering of the Shares as described in the Registration Statement,
the Prospectuses and the Disclosure Package, will not be, required
to register as an “investment company” under the
Investment Company Act of 1940, as amended (the “Investment Company Act”), and is
not and will not be an entity “controlled” by an
“investment company” within the meaning of the
Investment Company Act.
(v) Properties. Except as disclosed in the
Registration Statement, the Prospectuses and the Disclosure
Package, (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 Registration Statement, the Prospectuses and the
Disclosure Package; (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 for Liens granted in the ordinary course to finance
the purchase of personal property, except such as are described in
the Registration Statement, the Prospectuses and the Disclosure
Package 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 material 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 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.
(w) Mining Claims. 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, and no material royalty is payable in respect of
any of them, except as disclosed in the Registration Statement, the
Prospectuses and the Disclosure Package; except as disclosed in the
Registration Statement, the Prospectuses and the Disclosure
Package, 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;
except as disclosed in the Registration Statement, the Prospectuses
and the Disclosure Package, the Mining Claims held by the Company
or its Material Subsidiaries cover the properties required by the
Company for the purposes described therein.
(x) Compliance with
Mining Laws. (i) The
Company and its subsidiaries (x) are, and at all prior times were,
in compliance with any and all applicable federal, first nations,
aboriginal, tribal, state, provincial, municipal, local and foreign
laws, rules, regulations, ordinances, codes, requirements,
decisions and orders relating to exploration, mining and related
activities (collectively, “Mining
Laws”), (y)
have received and are in compliance with all permits, licenses,
certificates or other authorizations or approvals required of them
under applicable Mining Laws to conduct their respective
businesses, and (z) have not received notice of any actual or
potential liability under or relating to any Mining Laws and have
no knowledge of any event or condition that would reasonably be
expected to result in any such notice, and (ii) there are no costs
or liabilities associated with Mining Laws of or relating to the
Company or its subsidiaries, except in the case of each of (i) and
(ii) above, for any such failure to comply, or failure to receive
required permits, licenses or approvals, or cost or liability, as
would not, individually or in the aggregate, have a Material
Adverse Effect; and (iii) except as described in each of the
Registration Statement, the Prospectuses and the Disclosure
Package, (x) there are no
proceedings, including but not limited to orders, rights,
directives, units or judgments, that are pending, or that are known
to be contemplated, against the Company or any of its subsidiaries
under any Mining Laws in which a governmental entity is also a
party, except as would not have, individually or in the aggregate,
a Material Adverse Effect, and (y) the Company and its subsidiaries
are not aware of any non-compliance or potential non-compliance
with Mining Laws, or liabilities or other obligations under Mining
Laws, that could reasonably be expected to have a Material Adverse
Effect.
(y) Mineral Resources and Mineral Reserves.
The information relating to estimates by the Company of the proven
and probable mineral reserves and the measured, indicated and
inferred mineral resources associated with its mineral property
projects contained in the Registration Statement, the Prospectuses
and the Disclosure Package has been prepared in all material
respects in accordance with National Instrument 43-101- Standards
of Disclosure for Mineral Projects (“NI 43-101”); the Company believes
that all of the assumptions underlying such reserve and resource
estimates are reasonable and appropriate, and, subject to those
assumptions being true and correct, that the projected production
and operating results relating to its projects and summarized in
the Registration Statement, the Prospectuses and the Disclosure
Package are achievable by the Company; the Company has filed with
the Canadian Qualifying Authorities all technical reports required
to be filed by it pursuant to NI 43-101.
(z) Licenses and
Permits. Except as
set forth in the Registration Statement, the Prospectuses
and the Disclosure Package,
the Company and its subsidiaries are the registered owners of and
possess, in good standing without default, all licenses,
sub-licenses, certificates, rights (including, without limitation,
surface rights, access rights and water rights), permits,
concessions, instruments and other authorizations issued by, and
have made all declarations and filings with, the appropriate
federal, state, local or foreign governmental or regulatory
authorities that are necessary for the ownership or lease of their
respective properties or the conduct of their respective businesses
as described in each of the Registration Statement, the
Prospectuses and the Disclosure Package, including for the exploration,
exploitation, extraction, removal, processing and refinery of
minerals, except where the failure to possess, maintain in good
standing, or make the same would not, individually or in the
aggregate, have a Material Adverse Effect (collectively,
“Permits”);
and except as described in each of the Registration
Statement, the Prospectuses and the Disclosure Package, neither the Company nor any of its
subsidiaries has received notice of any revocation, cancellation or
modification of, or intention to revoke, cancel or modify any such
Permit or has any reason to believe that any such Permit will not
be renewed in the ordinary course.
(aa) Labor Matters. 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.
(bb) Compliance
with Employment Laws. Except as would not reasonably be
expected, individually or in the aggregate, to have a Material
Adverse Effect on the Company and its Subsidiaries taken as a
whole, the Company and its subsidiaries are in compliance with all
applicable laws respecting employment and labor, including
employment practices and standards, terms and conditions of
employment, wages and hours, occupational health and safety, human
rights, labor relations, accessibility, and workers’
compensation. Except as would not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect
on the Company and its Subsidiaries taken as a whole, all
employee benefit, pension, executive compensation, incentive
compensation, stock compensation, retirement, supplementary
retirement, health or other medical, dental, life or other similar
plan, program, agreement or arrangement (“Employee Plans”) sponsored,
maintained or contributed to or required to be contributed to by
the Company or its subsidiaries for the benefit of their respective
employees and their dependents have been established, registered
(where required), funded (where required), invested (where
required) and administered in accordance with, and are in good
standing under, all applicable laws, the terms of such Employee
Plans and all applicable collective agreements.
(cc) Matters Related to Local, Native and
Indigenous Groups. Except as disclosed in the Registration
Statement, the Prospectuses and the Disclosure Package, to the
knowledge of the Company, 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.
(dd) Compliance with Environmental Laws.
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
or any Subsidiary 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 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, except as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect; no
property of the Company or any Subsidiary is subject to any Lien
under any Environmental Law; except as disclosed in the
Registration Statement, the Prospectuses and the Disclosure
Package, 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.
(ee) Costs
and Liabilities related to Compliance with Environmental
Laws. 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), and on the basis of such review, the Company has
reasonably concluded that such associated costs and liabilities
would not, subject to maintaining adequate reserves for such costs,
individually or in the aggregate, have a Material Adverse
Effect.
(ff) Tax
Matters. 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 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, except as disclosed in the Registration Statement, the
Prospectuses and the Disclosure Package, 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.
(gg) No
Transfer Taxes. 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 and any Terms Agreement or the issuance by the Company or
sale by the Company of the Shares.
(hh) No
Stamp Duty, Registration or Documentary Taxes. 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: (i) the execution and delivery of this
Agreement or any Terms Agreement; or (ii) the enforcement or
admissibility in evidence of this Agreement or any Terms Agreement;
or (iii) the issuance, sale and delivery to the Agents of the
Shares; or (iv) the sale of the Shares through the Agents to U.S.
residents.
(ii) Insurance.
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 has no reason to believe
that it will be unable 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.
(jj) No Franchise, Contract or Other
Document. There is no franchise, contract or other document
of a character required to be described in the Registration
Statement, the Prospectuses and the Disclosure Package, or to be
filed as an exhibit to the Company’s Annual Report on Form
40-F or filed as a “material contract” with Canadian
Qualifying Authorities, 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.
(kk) Internal
Control Over Financial Reporting and Internal Accounting
Controls. 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 internal control over
financial reporting (as such term is defined in Rule 13a-15(f)
under the Exchange Act and Canadian Securities Laws) is effective
and the Company is not aware of any material weakness in its
internal control over financial reporting (except as otherwise set
forth in the Registration Statement, the Prospectuses and the
Disclosure Package).
(ll) No Change in the Company’s Internal
Control Over Financial Reporting. Since the date of the
latest audited consolidated financial statements of the Company
included or incorporated by reference in the Registration
Statement, the Prospectuses and the Disclosure Package, 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 (except as otherwise set forth in the
Registration Statement, the Prospectuses and the Disclosure
Package).
(mm) Disclosure Controls. The Company
maintains 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 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.
(nn) Mining
Controls. The
Company and its subsidiaries apply a quality assurance program and
quality control measures (collectively, the
“QA/QC”)
to provide reasonable assurance regarding the precision and
accuracy of its assay data. The Company is not aware of any
material weaknesses in the QA/QC and maintains security measures
that are designed to provide assurance in the Company’s and
its subsidiaries’ sample preparation, sample dispatches,
sample security, sample splitting and reduction, data verification,
and testing, assaying and analytical
procedures.
(oo) Compliance with the Xxxxxxxx-Xxxxx Act.
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, except as any such
failure could not reasonably be expected to have a Material Adverse
Effect.
(pp) Statistical, Industry-Related and
Market-Related Data. The statistical, industry-related and
market-related data included in the Registration Statement, the
Prospectuses and the Disclosure Package 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.
(qq) Compliance
with Anti-Money Laundering Laws. 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 or 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
Proceeds of Crime (Money Laundering) and Terrorist Financing Act
(Canada) and the money laundering statutes of all other 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.
(rr) No
Conflicts with Sanctions Laws. Neither the Company nor any
of its Subsidiaries, nor any director or officer of the Company or
its Subsidiaries, nor, to the knowledge of the Company, any agent,
employee or representative of the Company or its Subsidiaries,
affiliate or other person associated with or acting on behalf of
the Company or its Subsidiaries is currently the subject or target
of any sanctions administered or enforced by the U.S. government
(including, without limitation, the Office of Foreign Assets
Control of the U.S. Treasury Department or the U.S. Department of
State and including, without limitation, the designation as a
“specially designated national” or “blocked
person”), the United Nations Security Council, the European
Union, Her Majesty’s Treasury or other relevant sanctions
authority (collectively, “Sanctions”), nor is the Company or
any of its Subsidiaries located, organized or resident in a country
or territory that is the subject or the target of Sanctions,
including, without limitation, Cuba, Iran, North Korea, the Crimean
region, and Syria (each, a “Sanctioned Country”); and the
Company will not directly or indirectly use the proceeds of the
offering of the Shares hereunder, or lend, contribute or otherwise
make available such proceeds to any Subsidiary, joint venture
partner or other person or entity (i) to fund or facilitate any
activities of or business with any person that, at the time of such
funding or facilitation, is the subject or the target of Sanctions,
(ii) to fund or facilitate any activities of or business in any
Sanctioned Country; or (iii) in any other manner that will result
in a violation by any person (including any person participating in
the transaction, whether as underwriter, advisor, investor or
otherwise) of Sanctions. The Company and its Subsidiaries
have not, for the past five years, knowingly engaged in, are not
now knowingly engaged in, and will not engage in, any dealings or
transactions with any person that at the time of the dealing or
transaction is or was the subject or the target of Sanctions or
with any Sanctioned Country.
(ss) Compliance with Anti-Corruption Laws.
None of the Company, any of its Subsidiaries, directors or officers
or, to the knowledge of the Company, any agent, employee, affiliate
or other person acting on behalf of the Company or any of its
Subsidiaries, is aware of or has taken any action, directly or
indirectly, that would result in a violation by such persons of the
Foreign Corrupt Practices Act of 1977, as amended, and the rules
and regulations thereunder (the “FCPA”) or the Corruption of
Foreign Public Officials Act (Canada) (the “CFPOA”), including, without
limitation, making use of the mails or any means or instrumentality
of interstate commerce corruptly in furtherance of an offer,
payment, promise to pay or authorization of the payment of any
money, or other property, gift, promise to give, or authorization
of the giving of anything of value to any “foreign
official” (as such term is defined in the FCPA) or any
foreign political party or official thereof or any candidate for
foreign political office, in contravention of the FCPA or the CFPOA
and the Company and, to the knowledge of the Company, its
affiliates have conducted their businesses in compliance with the
FCPA and the CFPOA and have instituted and maintain policies and
procedures designed to ensure, and which are reasonably expected to
continue to ensure, continued compliance therewith.
(tt) Cybersecurity. (i)(x) Except as
disclosed in the Registration Statement, the Prospectuses and the
Disclosure Package, there has been no material security breach or
other compromise of or relating to any of the Company’s
information technology and computer systems, networks, hardware,
software, data (including the data of its customers, employees,
suppliers, vendors and any third party data maintained by or on
behalf of it), equipment or technology (collectively,
“IT Systems and
Data”) and (y) the Company has not been notified of,
and has no knowledge of any event or condition that would
reasonably be expected to result in, any security breach or other
compromise to its IT Systems and Data; (ii) the Company is
presently in compliance with all applicable laws or statutes and
all judgments, orders, rules and regulations of any court or
arbitrator or governmental or regulatory authority, internal
policies and contractual obligations relating to the privacy and
security of IT Systems and Data and to the protection of such IT
Systems and Data from unauthorized use, access, misappropriation or
modification, except as would not, in the case of this clause (ii),
individually or in the aggregate, have a Material Adverse Effect;
and (iii) the Company has implemented backup and disaster recovery
technology consistent with industry standards and
practices.
(uu) Canadian Reporting Issuer; Listing of
Common Shares. The Company is a reporting issuer under the
securities laws of each province in Canada that recognizes the
concept of reporting issuer and is not on the list of defaulting
reporting issuers maintained by any Canadian Qualifying Authority
in each such jurisdiction that maintains such a list; the
outstanding Common Shares of the Company are registered pursuant to
Section 12(b) of the Exchange Act; the Common Shares are listed and
posted for trading on the TSX and the NYSE, 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 from the TSX
or the NYSE, nor has the Company received any notification that the
Commission, the TSX or the NYSE is contemplating terminating such
registration or listing.
(vv) No Commissions or Finder’s Fees.
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 the Agents for a brokerage commission,
finder’s fee or other like payment in connection with the
transactions contemplated by this Agreement, any Terms Agreement or
the Shares.
(ww) Lending Relationship with the Agents;
Repayment of Debts. Except as disclosed in the Registration
Statement, the Prospectuses or the Disclosure Package, neither the
Company nor any of its Subsidiaries (i) has any material lending or
other relationship with any bank or lending affiliate of the Agents
or (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 the Agents.
(xx) No Stabilization. Neither the Company
nor, to the Company’s knowledge, any of its
“affiliates” (within the meaning of Rule 144 under the
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.
(yy) Accurate Disclosure. The statements set
forth in the Registration Statement, the Prospectuses and the
Disclosure Package under the headings “Certain U.S. Federal
Income Tax Considerations”, “Certain Canadian Federal
Income Tax Considerations”, “Description of Common
Shares”, “Consolidated Capitalization”, and
“Enforceability of Civil Liabilities by U.S. and Canadian
Investors”, 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.
(zz) Transfer Agent and Registrar.
Computershare Investor Services Inc. at its principal office in the
city of Vancouver, British Columbia is the duly appointed registrar
and transfer agent of the Company with respect to its Common
Shares, and Computershare Trust Company, N.A. 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.
(aaa) Minute
Books and Corporate Records. Other than minutes that are
being prepared in the ordinary course or in connection with the
transactions contemplated herein, 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 time of purchase 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.
(bbb) Foreign
Private Issuer. 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.
(ccc) Forward-Looking
Statements. No forward-looking statement (within the meaning
of Section 27A of the Act and Section 21E of the Exchange Act)
included or incorporated by reference in the Registration
Statement, the Prospectus or any Permitted Free Writing Prospectus
has been made or reaffirmed without a reasonable basis or has been
disclosed other than in good faith.
Any certificate signed by any officer of the Company and delivered
to the
Agents or to counsel for
the Agents
shall be deemed a representation and
warranty by the Company, as the case may be, to the Agents as to the matters covered
thereby.
(a) Prospectus and Registration Statement
Amendments. After the date of this Agreement and until the
completion of the sales contemplated hereunder, (i) the Company
will notify the Agents promptly of the time when any subsequent
amendment to the Canadian Base Prospectus or the Registration
Statement has been filed with any Canadian Qualifying Authority or
the Commission and has become effective or where a receipt has been
issued therefor, as applicable, or any subsequent supplement to the
U.S. Prospectus or the Canadian Prospectus has been filed (each, an
“Amendment
Date”) and of any request by the Commission or any
Canadian Qualifying Authority for any amendment or supplement to
the Registration Statement or the Prospectuses or for additional
information; (ii) the Company will file promptly all other material
required to be filed by it with the Commission pursuant to Rule
433(d) and with the Canadian Qualifying Authorities; (iii) the
Company will submit to the Agents a copy of any amendment or
supplement to the Registration Statement or the Prospectuses (other
than a copy of any documents incorporated by reference into the
Registration Statement or the Prospectuses) within a reasonable
period of time before the filing thereof and will afford the Agents
and the Agents’ counsel a reasonable opportunity to comment
on any such proposed filing prior to such proposed filing; and (iv)
the Company will furnish to the Agents at the time of filing
thereof a copy of any document that upon filing is deemed to be
incorporated by reference in the Registration Statement or the
Prospectuses (provided that the Company shall not be required to
deliver documents or information incorporated by reference into the
Registration Statement or the Prospectuses if such documents are
accessible from SEDAR or XXXXX) and the Company will cause (A) each
amendment or supplement to the U.S. Prospectus to be filed with the
Commission as required pursuant to General Instruction II.L of Form
F-10 of the Rules and Regulations or, in the case of any document
to be incorporated therein by reference, to be filed with the
Commission as required pursuant to the Exchange Act, within the
time period prescribed and (B) each amendment or supplement to the
Canadian Prospectus to be filed with the Canadian Qualifying
Authorities as required pursuant to NI 44-101 and NI 44-102 (the
“Canadian Shelf
Procedures”) or, in the case of any document to be
incorporated therein by reference, to be filed with the Canadian
Qualifying Authorities as required pursuant to the Canadian
Securities Laws, within the time period prescribed.
(b) Notice of Stop Orders. The Company will
advise the Agents, promptly after it receives notice thereof, of
the issuance by the Commission or the Canadian Qualifying
Authorities of any stop order or of any order preventing or
suspending the use of the Prospectuses or other prospectus in
respect of the Shares, of any notice of objection of the Commission
to the use of the form of the Registration Statement or any
post-effective amendment thereto, of the suspension of the
qualification of the Shares for offering or sale in the United
States or the Canadian Qualifying Jurisdictions, of the initiation
or threatening of any proceeding for any such purpose, or of any
request by the Commission or the Canadian Qualifying Authorities
for the amending or supplementing of the Registration Statement or
the Prospectuses or for additional information relating to the
Shares. If there is an Agency Transaction Notice or a Terms
Agreement that has been issued by the Company that has not been
suspended or terminated in accordance with the notice requirements
set forth in Section 2 or Section 6, as applicable, the Company
will use its commercially reasonable efforts to prevent the
issuance of any stop order or any order preventing or suspending
the use of the Prospectuses or other prospectus in respect of the
Shares, a notice of objection of the Commission to the form of the
Registration Statement or any post-effective amendment thereto, the
suspension of any qualification for offering or sale in the United
States or the Canadian Qualifying Jurisdictions, and, in the event
of the issuance of any such stop order or any such order preventing
or suspending the use of any prospectus relating to the Shares or
suspending any such qualification, the Company will use its
commercially reasonable efforts to obtain the lifting or withdrawal
of such order as soon as possible. If there is no such outstanding
Agency Transaction Notice or Terms Agreement, then, if, in the
Company’s determination and at the Company’s sole
discretion, it is necessary to prevent the issuance of any stop
order or have a stop order lifted, the Company will use its
commercially reasonable efforts to prevent the issuance of any stop
order or any order preventing or suspending the use of the
Prospectuses or other prospectus in respect of the Shares, a notice
of objection of the Commission to the form of the Registration
Statement or any post-effective amendment thereto, the suspension
of any qualification for offering or sale in the United States or
the Canadian Qualifying Jurisdictions, and, in the event of the
issuance of any such stop order or any such order preventing or
suspending the use of any prospectus relating to the Shares or
suspending any such qualification, the Company will use its
commercially reasonable efforts to obtain the lifting or withdrawal
of such order as soon as possible.
(c) Delivery of Prospectus; Subsequent
Changes. Within the time during which a prospectus relating
to the Shares is required to be delivered by the Agents under the
Act (including in circumstances where such requirement may be
satisfied pursuant to Rule 153, Rule 172 or Rule 173(a) under the
Act) or the Canadian Securities Laws (disregarding, for such
purpose, the applicability of the Exemption), the Company will
comply in all material respects with all requirements imposed upon
it by the Act, by the Rules and Regulations, as appropriate and as
from time to time in force, and will file or furnish on or before
their respective due dates all reports required to be filed or
furnished by it with the Commission pursuant to Sections 13(a),
13(c), or 15(d) of the Exchange Act, if applicable, or any other
provision of or under the Exchange Act or with the Canadian
Qualifying Authorities pursuant to the Canadian Securities Laws, as
appropriate. If during such period any event occurs as a result of
which the Prospectuses as then amended or supplemented would
include an untrue statement of material fact or omit to state a
material fact necessary to make the statements therein, in the
light of the circumstances then existing, not misleading, or if
during such period it is necessary to amend or supplement the
Registration Statement or the Prospectuses to comply with the Act
or the Canadian Securities Laws, the Company will immediately
notify the Agents to suspend the offering of Shares during such
period and, if, in the Company’s determination and at the
Company’s sole discretion, it is necessary to file an
amendment or supplement to the Registration Statement or the
Prospectuses to comply with the Act or the Canadian Securities
Laws, the Company will promptly prepare and file with the Canadian
Qualifying Authorities and the Commission such amendment or
supplement as may be necessary to correct such statement or
omission or to make the Registration Statement or the Prospectuses
comply with such requirements, and the Company will furnish to the
Agents such number of copies of such amendment or supplement as the
Agents may reasonably request.
(d) Delivery of Registration Statement and
Prospectuses. The Company will furnish to the Agents and
their counsel (at the expense of the Company) copies of the
Registration Statement, the Prospectuses (including all documents
incorporated by reference therein) and all amendments and
supplements to the Registration Statement or the Prospectuses that
are filed with the Commission or Canadian Qualifying Authorities
during the period in which a prospectus relating to the Shares is
required to be delivered under the Act (including all documents
filed with the Commission during such period that are deemed to be
incorporated by reference therein) or the Canadian Qualifying
Authorities (including all documents filed with the Canadian
Qualifying Authorities during such period that are deemed to be
incorporated by reference therein), in each case as soon as
reasonably practicable and in such quantities as the Agents may
from time to time reasonably request provided, however, the Company
shall not be required to furnish any documents to the Agents that
are available on SEDAR or XXXXX.
(e) Company Information. The Company will
furnish to the Agents such information in its possession as is
reasonably requested by the Agents as necessary or appropriate to
fulfil their obligations as agents pursuant to this Agreement, the
Act and Canadian Securities Laws.
(f) Availability of Earnings Statements.
The Company shall make generally available to holders of its
securities and the Agents as soon as may be practicable but in no
event later than the last day of the fifteenth full calendar month
following the calendar quarter in which the most recent effective
date of the Registration Statement occurs in accordance with Rule
158 of the Rules and Regulations, an earnings statement (which need
not be audited but shall be in reasonable detail) covering a period
of 12 months, and satisfying the provisions of Section 11(a) of the
Act (including Rule 158 of the Rules and Regulations).
(g) Compliance with Blue Sky Laws. The
Company shall cooperate with the Agents and their counsel therefor
in connection with the registration or qualification (or the
obtaining of exemptions therefrom) of the Shares for the offering
and sale under the securities or Blue Sky laws of such
jurisdictions as the Agents may request, including, without
limitation, the provinces of Canada and other jurisdictions outside
the United States, and to continue such registration or
qualification in effect so long as necessary under such laws for
the distribution of the Shares; provided, however, that in no event
shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action
which would subject it to general service of process in any
jurisdiction where it is not now so subject (except service of
process with respect to the offering and sale of the
Shares).
(h) Material Non-public Information. The
Company covenants that it will not issue an Agency Transaction
Notice to the Agents, or enter into a Terms Agreement with the
Agents, in accordance with Section 1 hereof if the Company is in
possession of material non-public information regarding the Company
and its subsidiaries, taken as a whole, or the Shares.
(i) Reimbursement of Certain Expenses.
Whether or not any of the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, the
Company shall pay, or reimburse if paid by the Agents all costs and
expenses incident to the performance of the obligations of the
Company under this Agreement, including, without limitation, costs
and expenses of or relating to (i) the preparation, printing and
filing of the Registration Statement and exhibits to it, each
preliminary prospectus, each Permitted Free Writing Prospectus, the
Prospectus and any amendment or supplement to the Registration
Statement or the Prospectus (including the filing fees payable to
the Commission relating to the Shares within the time required by
Rule 456 of the Rules and Regulations), (ii) the preparation and
delivery of certificates representing the Shares, (iii) the
printing of this Agreement, (iv) furnishing (including costs of
shipping, mailing and courier) such copies of the Registration
Statement, the Prospectus, any preliminary prospectus and any
Permitted Free Writing Prospectus, and all amendments and
supplements thereto, as may be requested for use in connection with
the offering and sale of the Shares by the Agents, (v) the listing
of the Shares on the NYSE and the TSX, (vi) any filings required to
be made by the Agents with the Financial Industry Regulatory
Authority, Inc. (“FINRA”), the Commission and the
Canadian Qualifying Authorities, and the fees, disbursements and
other charges of counsel for the Agents in connection therewith,
(vii) the registration or qualification of the Shares for offer and
sale under the Act and the securities or Blue Sky laws of such
jurisdictions designated pursuant to subsection (g) of this Section
3, including the fees, disbursements and other charges of counsel
to the U.S. Agent in connection therewith, and, if requested by the
U.S. Agent, the preparation and printing of preliminary,
supplemental and final Blue Sky or Legal Investment memoranda,
(viii) counsel to the Company, (ix) The Depository Trust Company,
CDS and any other depositary, transfer agent or registrar for the
Shares, (x) the marketing of the offering of the Shares by the
Company, including, without limitation, all costs and expenses of
commercial airline tickets, hotels, meals and other travel expenses
of officers, employees, agents and other representatives of the
Company, (xi) all reasonable out-of-pocket fees, disbursements and
other charges of the Agents incurred in connection with this
Agreement, the Registration Statement, the Prospectuses and the
offering of the Shares including without limitation, the fees and
disbursements of counsel to the Agents , and (xii) all fees, costs
and expenses for consultants used by the Company in connection with
the offering of the Shares.
(j) Use of Proceeds. The Company shall
apply the net proceeds from the offering and sale of the Shares to
be sold by the Company in the manner set forth in the Prospectuses
under “Use of Proceeds” and, except as disclosed in the
Prospectuses, the Company does not intend to use any of the
proceeds from the sale of the Shares to repay any outstanding debt
owed to the Agents or any affiliate of the Agents.
(k) Change of Circumstances. During the
term of this Agreement, the Company will, at any time during a
fiscal quarter in which the Company intends to deliver an Agency
Transaction Notice to the Agents, or enter into a Terms Agreement
with the Agents, to sell Shares, advise the Agents promptly after
it has received notice or obtained knowledge thereof, of any
information or fact that would alter or affect in any material
respect any opinion, certificate, letter or other document provided
to the Agents pursuant to this Agreement.
(l) Due Diligence Cooperation. The Company
shall reasonably cooperate with any reasonable due diligence review
requested by the Agents or their counsel from time to time in
connection with the transactions contemplated hereby or any Agency
Transaction Notice, including, without limitation, (i) prior to the
open of trading on each intended purchase date and any Time of Sale
or Settlement Date, making available appropriate corporate officers
of the Company and, upon reasonable request, representatives of the
accountants for the Company and the authors of the technical
reports for each of the Company’s material properties, an
update on diligence matters with representatives of the Agents and
their counsel and (ii) at each Representation Date (as defined
herein) or otherwise as the Agents may reasonably request,
providing information and making available documents and
appropriate corporate officers of the Company and representatives
of the accountants for the Company for one or more due diligence
sessions with representatives of the Agents and their
counsel.
(m) Clear Market. The Company shall not
offer to sell, pledge, hypothecate, contract or agree to sell,
purchase any option to sell, grant any option for the purchase of,
lend, or otherwise dispose of, directly or indirectly, any Common
Shares or any securities convertible into or exercisable or
exchangeable for Common Shares or warrants or other rights to
acquire shares of Common Shares or any other securities of the
Company that are substantially similar to the Common Shares or
permit the registration under the Act of any shares of the Common
Shares, in each case without giving the Agents at least three
business days’ prior written notice specifying the nature and
date of such proposed transaction. Notwithstanding the foregoing,
the Company may, without giving any such prior notice, (i) register
the offering and sale of the Shares through the Agents pursuant to
this Agreement, (ii) issue Common Shares upon the exercise of an
option or warrant or the conversion of a convertible security
outstanding on the date hereof and referred to in the Prospectus,
(iii) issue Common Shares, options or other securities convertible
into or exchangeable for Common Shares pursuant to existing
employee incentive plans of the Company or (iv) issue Common Shares
pursuant to any non-employee director stock plan, dividend
reinvestment plan, stock purchase plan or other similar incentive
plan of the Company. If notice of a proposed transaction is
provided by the Company pursuant to this subsection (m), the Agents
may suspend activity of the transactions contemplated by this
Agreement for such period of time as may be requested by the
Company or as may be deemed appropriate by the Agents.
(n) Affirmation of Representations, Warranties,
Covenants and Other Agreements. Upon commencement of the
offering of the Shares under this Agreement (and upon the
recommencement of the offering of the Shares under this Agreement
following any suspension of sales under Section 2), and at each
Time of Sale, each Settlement Date and each Amendment Date, the
Company shall be deemed to have affirmed each representation and
warranty contained in this Agreement.
(o) Required Filings Relating to Sale of
Shares. In each quarterly report, management discussion and
analysis, annual information form or annual financial statements /
annual report on Form 40-F filed by the Company in respect of any
quarter in which sales of Shares were made by the Agents under this
Agreement, the Company shall set forth with regard to such quarter
the number of Shares and the average selling price of the Shares
sold through the Agents under this Agreement, the gross and net
proceeds received by the Company and the compensation paid by the
Company to the Agents with respect to sales of Shares pursuant to
this Agreement. For so long as the Shares are listed on the TSX,
the Company will provide the TSX with all information it requires
with respect to the offering of the Shares within the timelines
prescribed by the TSX and for so long as the Shares are listed on
the NYSE, the Company will provide the NYSE with all information it
requires with respect to the offering of the Shares within the
timelines prescribed by the NYSE.
(p) Representation Dates; Certificate.
During the term of this Agreement, each time the Company (i) files
the Prospectuses relating to the Shares or amends or supplements
the Registration Statement or the Prospectuses relating to the
Shares by means of a post-effective amendment or supplement but not
by means of incorporation of document(s) by reference to the
Registration Statement or the Prospectuses relating to the Shares;
(ii) files or amends an annual report on Form 40-F; (iii) files or
amends interim financial statements on Form 6-K; (iv) delivers
Shares pursuant to a Terms Agreement; or (v) at any other time
reasonably requested by the Agents (each date of filing of one or
more of the documents referred to in clauses (i) through (iii) and
any time of request pursuant to (v) above shall be a
“Representation
Date”), the Company shall furnish the Agents with a
certificate, in the form included in Section 4(d), upon execution
of this Agreement and on each Representation Date.
(q) Legal Opinions. Upon execution of this
Agreement and on each Representation Date, the Company shall cause
to be furnished to the Agents within three Trading Days after any
Representation Date, dated as of such date and addressed to the
Agents, in form and substance reasonably satisfactory to the
Agents, the written opinion and a negative assurance letter, to the
extent applicable, of (i) Fasken Xxxxxxxxx XxXxxxxx LLP, Canadian
counsel for the Company, as described in Section 4(e), such opinion
letter to be substantially similar to the form attached hereto as
Exhibit C, and an opinion to the effect that the French language
version of the Canadian Prospectus, other than the financial
statements and other financial data contained or incorporated by
reference in the French language version, constitutes a complete
and accurate translation in all material respects of the English
language version thereof; (ii) Xxxxxx & Whitney LLP, U.S.
counsel for the Company, as described in Section 4(e), such opinion
and negative assurance letter to be substantially similar to the
forms attached hereto as Exhibit D, (iii) an opinion of the
Company’s auditors to the effect that the financial
statements and other financial data contained or incorporated by
reference in the French language version of the Canadian Prospectus
is, in all material respects, a complete and proper translation of
the English language version thereof, in each case, modified as
necessary to relate to the Registration Statement and the
Prospectuses as then amended or supplemented, and (iv) a corporate
opinion, or opinions, from local counsel in respect of Tüprag
Metal Madencilik Sanayi ve Ticaret A.Ş. and Hellas Gold S.A.,
each dated the date the opinion is required to be delivered, in a
form and substance satisfactory to the Agents and their counsel,
acting reasonably, or, in lieu of such opinions, counsel last
furnishing such opinion to the Agents may furnish the Agents with a
letter to the effect that the Agents may rely on such last opinion
to the same extent as though it was dated the date of such letter
authorizing reliance (except that statements in such last opinion
shall be deemed to relate to the Registration Statement and the
Prospectuses as amended and supplemented to the time of delivery of
such letter authorizing reliance). The requirement to furnish the
documents set out in this Section 3(q) shall be waived for any
Representation Date occurring at a time at which no Agency
Transaction Notice or Terms Agreement is pending, which waiver
shall continue until the earlier to occur of the date the Company
delivers an Agency Transaction Notice or Terms Agreement hereunder,
as applicable, and the next occurring Representation Date;
provided, however, that such waiver shall not apply for any
Representation Date on which the Company files its annual report on
Form 40-F. Notwithstanding the foregoing, if the Company
subsequently decides to sell Shares following a Representation Date
when the Company relied on such waiver, then before the Company
delivers the Agency Transaction Notice or Terms Agreement, as
applicable, or the Agents sell any Shares, the Company shall
provide the Agents with each of the documents set out in this
Section 3(q).
(r) Comfort Letters. Upon execution of this
Agreement and within three Trading Days after each Representation
Date, the Company shall cause its auditors to furnish the Agents a
letter (the “Comfort
Letter”) dated the date the Comfort Letter is
delivered, in form and substance satisfactory to the Agents, acting
reasonably, addressed to the Agents, relating to the verification
of certain of the financial information and statistical and
accounting data relating to the Company and its subsidiaries
contained in the Registration Statement and the Prospectuses or
incorporated by reference therein, which comfort letter shall be
based on a review having a cut-off date not more than two business
days prior to the date of such letter, (y) stating that such
auditors are independent public accountants within the meaning of
the Canadian Securities Laws, the Act and the rules and regulations
thereunder, and that in their opinion the audited financial
statements of the Company incorporated by reference in the
Registration Statement and the Prospectuses comply as to form in
all material respects with the published accounting requirements of
the Canadian Securities Laws, the Act and the related regulations
thereunder and with the applicable accounting requirements of the
Canadian Securities Laws, the Act and the Exchange Act and the
related published rules and regulations adopted by the Canadian
Securities Authorities and the Commission (the first such letter,
the “Initial Comfort
Letter”) and (z) updating the Initial Comfort Letter
with any information which would have been included in the Initial
Comfort Letter had it been given on such date and modified as
necessary to relate to the Registration Statement and the
Prospectuses, as amended and supplemented to the date of such
letter. The requirement to furnish the documents set out in this
Section 3(r) shall be waived for any Representation Date occurring
at a time at which no Agency Transaction Notice or Terms Agreement
is pending, which waiver shall continue until the earlier to occur
of the date the Company delivers an Agency Transaction Notice or
Terms Agreement hereunder, as applicable, and the next occurring
Representation Date; provided, however, that such waiver shall not
apply for any Representation Date on which the Company files its
annual report on Form 40-F. Notwithstanding the foregoing, if the
Company subsequently decides to sell Shares following a
Representation Date when the Company relied on such waiver, then
before the Company delivers the Agency Transaction Notice or Terms
Agreement, as applicable, or the Agents sell any Shares, the
Company shall provide the Agents with each of the documents set out
in this Section 3(r).
(s) Title Opinions. Upon execution of this
Agreement and within three Trading Days after (i) each Amendment
Date, (ii) each time the Company files or amends an annual
information form, annual financial statements, or an annual report
on Form 40-F or 20-F, (iii) any material change to the ownership or
title of the relevant Material Subsidiary’s title and mineral
rights for the Company’s Lamaque gold mine located in Quebec,
Canada (the “Lamaque
Project”), or (iv) the determination by the Company
that any property is material to the Company, excluding any
properties in Turkey or Greece, the Company shall cause to be
furnished to the Agents a written opinion of legal counsel to the
Company, together with a certified English translation thereof for
any such legal opinion not in the English language, with respect to
the Company’s (or its Subsidiary’s, as applicable)
title and mineral rights for the Lamaque Project (or such other
material property).
(t) Market Activities. The Company will
not, directly or indirectly, (i) take any action designed to or
that would constitute or that might reasonably be expected to cause
or result in, under Canadian Securities Laws or the Exchange Act or
otherwise, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Shares or (ii) sell, bid for, or purchase the Shares, or pay anyone
any compensation for soliciting purchases of the Shares other than
the Agents.
(u) Investment Company Act. The Company
will conduct its affairs in such a manner so as to reasonably
ensure that prior to the termination of this Agreement, it will not
be or become required to register as an “investment
company” as defined in the Investment Company Act and the
rules and regulations of the Commission promulgated
thereunder.
(v) Board
Authorization. Prior
to delivering notice of the proposed terms of an Agency Transaction
or a Principal Transaction pursuant to Section 1 (or at such time
as otherwise agreed between the Company and the Agents), the
Company shall have (i) obtained from its board of directors or a
duly authorized subcommittee thereof all necessary corporate
authority for the sale of the Shares pursuant to the relevant
Agency Transaction or Principal Transaction, as the case may be,
and (ii) provided to the Agents a copy of the relevant board
resolutions or other authority.
(w) Offer to Refuse to
Purchase. If to the
knowledge of the Company any condition set forth in Section
4(a) of this Agreement shall not have been
satisfied on the applicable Settlement Date, the Company shall
offer to any person who has agreed to purchase Shares from the
Company as the result of an offer to purchase solicited by the
Agents the right to refuse to purchase and pay for such
Shares.
(x) Consent to the Agents’ Trading.
The Company consents to the extent permitted under the Act, the
Exchange Act, Canadian Securities Laws, the Exemption, the rules of
the NYSE and of the TSX, and under this Agreement, to the Agents
trading in the Shares of the Company: (i) for the account of their
clients at the same time as sales of Shares occur pursuant to this
Agreement; and (ii) for the Agents’ own accounts provided
that no such purchase or sale shall take place by an Agent while
such Agent has received an Agency Transaction Notice that remains
in effect, unless the Company has expressly authorized or consented
in writing to any such trades by such Agent.
(y) Actively-Traded Security. The Company
shall notify the Agents immediately by an email addressed to each
of the respective individuals from each of the Agents set forth on
Schedule 1 attached hereto if the Shares cease to qualify as an
“actively-traded security” exempted from the
requirements of Rule 101 of Regulation M under the Exchange Act by
subsection (c)(1) of such rule and the sales shall be suspended
until that or other exemptive provisions have been satisfied in the
judgement of each party.
(z) Permitted
Free Writing Prospectuses.
(i) The Company
represents and agrees that it has not made and, unless it obtains
the prior written consents of the Agents, shall not make, any offer
relating to the Shares that would constitute a “free writing
prospectus” as defined in Rule 405 of the Rules and
Regulations, which is required to be retained by the Company under
Rule 433 of the Rules and Regulations; provided that the prior
written consents of the Agents hereto shall be deemed to have been
given in respect of each of the free writing prospectuses set forth
in Schedule 3 hereto. Any such free writing prospectus consented to
by the Agents is herein referred to as a “Permitted Free Writing
Prospectus.” The Company represents and agrees that
(i) it has treated and shall treat, as the case may be, each
Permitted Free Writing Prospectus as a “free writing
prospectus” as defined in Rule 405 of the Rules and
Regulations and (ii) it has complied and shall comply, as the case
may be, with the requirements of Rules 164 and 433 of the Act
applicable to any Permitted Free Writing Prospectus, including,
without limitation, in respect of timely filing with the
Commission, legending and record keeping. The Company agrees not to
take any action that would result in the Agents or the Company
being required to file pursuant to Rule 433(d) under the Act a free
writing prospectus prepared by or on behalf of the Agents that the
Agents otherwise would not have been required to file
thereunder.
(ii) The
Company agrees that no Permitted Free Writing Prospectus, if any,
will include any information that conflicts with the information
contained in the Registration Statement, including any document
incorporated by reference therein that has not been superseded or
modified, or the Prospectus. In addition, no Permitted Free Writing
Prospectus, if any, together with the Prospectuses, will include an
untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided
however, the foregoing shall not apply to any statements or
omissions in any Permitted Free Writing Prospectus made in reliance
on information furnished in writing to the Company by the Agents
expressly stating that such information is intended for use
therein.
(iii) The
Company agrees that if at any time following issuance of an
Permitted Free Writing Prospectus any event occurred or occurs as a
result of which such Permitted Free Writing Prospectus would
conflict with the information in the Registration Statement,
including any document incorporated by reference therein that has
not been superseded or modified, or the Prospectus or would include
an untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, the
Company will give prompt notice thereof to the Agents and, if
requested by the Agents, will prepare and furnish without charge to
the Agents a Permitted Free Writing Prospectus or other document
which will correct such conflict, statement or omission; provided,
however, the foregoing shall not apply to any statements or
omissions in any Permitted Free Writing Prospectus made in reliance
on information furnished in writing to the Company by the Agents
expressly stating that such information is intended for use
therein.
(aa) Distribution
of Offering Materials. The Company has not distributed and
will not distribute, during the term of this Agreement, any
“marketing materials” (as defined in National
Instrument 41-101 – General Prospectus Requirements) in
connection with the offering and sale of the Shares other than the
Registration Statement, the Prospectuses or any Permitted Free
Writing Prospectus reviewed and consented to by the Agents and
included in an Agency Transaction Notice or Terms Agreement,
provided that the Agents, severally and not jointly, covenant with
the Company not to take any action that would result in the Company
being required to file with the Canadian Qualifying Authorities any
“marketing materials” that otherwise would not be
required to be filed by the Company, but for the action of the
Agents.
4. Conditions to the Agents’
Obligations. The obligations of the Agents hereunder are
subject to (i) the accuracy of the representations and warranties
of the Company on the date hereof, on each Representation Date and
as of each Time of Sale and each Settlement Date, (ii) the
performance of the Company of its obligations hereunder and (iii)
the following additional conditions:
(a) Canadian Prospectus Supplement. The
Canadian Prospectus Supplement shall have been filed with the
Canadian Qualifying Authorities under the Canadian Shelf Procedures
and in accordance with this Agreement, all requests for additional
information on the part of the Canadian Qualifying Authorities
shall have been complied with to the reasonable satisfaction of the
Agents and Agents’ counsel and the Exemption shall remain in
full force and effect without amendment.
(b) No Material Adverse Changes. Since the
date of the most recent financial statements of the Company
included or incorporated by reference in the Registration Statement
and the Prospectus, except as described in the Registration
Statement and the Prospectus, there shall not have been a Material
Adverse Change.
(c) No Material Notices. None of the
following events shall have occurred and be continuing: (i) receipt
by the Company of any request for additional information from the
Commission, the Canadian Qualifying Authorities or any other
federal or state or foreign or other governmental, administrative
or self-regulatory authority during the period of effectiveness of
the Registration Statement and the Prospectuses, the response to
which would require any amendments or supplements to the
Registration Statement or the Prospectuses; (ii) the issuance by
the Commission, the Canadian Qualifying Authorities or any other
federal or state or foreign or other governmental authority of any
stop order suspending the effectiveness of the Registration
Statement or the Prospectuses or the initiation of any proceedings
for that purpose; (iii) receipt by the Company of any notification
with respect to the suspension of the qualification or exemption
from qualification of any of the Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose; (iv) the occurrence of any event that makes any
statement made in the Registration Statement or the Prospectuses or
any document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or that requires the
making of any changes in the Registration Statement, the
Prospectuses or documents so that, in the case of the Registration
Statement, it will not contain any 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 not misleading,
and in the case of each Prospectus, it will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; and (v) the Company’s reasonable
determination that a post-effective amendment to the Registration
Statement or Prospectuses would be appropriate.
(d) Officers’ Certificates. The
Agents shall have received, upon execution of this Agreement and on
each Representation Date, one or more accurate certificates, dated
such date and signed by an executive officer of the Company, in
form and substance satisfactory to the Agents, to the effect set
forth in clauses (b) and (c) above and to
the effect that:
(i) each signer of such
certificate has carefully examined the Registration Statement, the
Prospectuses (including any documents filed under the Exchange Act
and Canadian Securities Laws and deemed to be incorporated by
reference into the Prospectuses) and each Permitted Free Writing
Prospectus, if any;
(ii) as
of such date and as of each Time of Sale subsequent to the
immediately preceding Representation Date, if any, neither the
Registration Statement, the Prospectuses nor any Permitted Free
Writing Prospectus contained any untrue statement of a material
fact or omitted to state any material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading;
(iii) each
of the representations and warranties of the Company contained in
this Agreement are, as of such date and each Time of Sale
subsequent to the immediately preceding Representation Date, if
any, true and correct; and
(iv) each
of the covenants and agreements required herein to be performed by
the Company on or prior to such date has been duly, timely and
fully performed and each condition herein required to be complied
with by the Company on or prior to such date has been duly, timely
and fully complied with.
(e) Legal Opinions. The Agents shall have
received the opinions of counsel to be delivered pursuant to
Section 3(q) on or before the date on which such delivery of such
opinions are required pursuant to Section 3(q). In addition, on
such dates that the opinions required by Section 3(q) are
delivered, the Agents shall have also received the opinion and
negative assurance letter of Xxxx, Weiss, Rifkind, Xxxxxxx &
Xxxxxxxx LLP, U.S. counsel to the Agents, with respect to the
issuance and sale of the Shares in the United States, the
Registration Statement, the Disclosure Package, the U.S. Prospectus
and other related matters as the Agents may reasonably require, it
being understood that counsel for the Agents may rely on the
opinions of counsel for the Company and that counsel for the Agents
and counsel for the Company may rely upon the opinions of local
counsel as to all matters not governed by the laws of the
respective jurisdictions in which they are qualified to practice,
and may rely, to the extent appropriate in the circumstances, as to
matters of fact on certificates of the Company, auditors and public
officials, and that the opinions of counsel may be subject to usual
qualifications as to equitable remedies, creditors’ rights
laws and public policy considerations.
(f) Comfort Letter. The Agents shall have
received the Comfort Letter required to be delivered pursuant to
Section 3(r) on or
before the date on which such delivery of such letter is required
pursuant to Section 3(r).
(g) Title Opinions. The Agents shall have
received the opinions to be delivered pursuant to Section 3(s) on
or before the date on which such delivery of such opinions is
required pursuant to Section 3(s).
(h) Due Diligence. The Company shall have
complied with all of its due diligence obligations required
pursuant to Section 3(l).
(i) Compliance with Blue Sky Laws. The
Shares shall be qualified for sale in such states and jurisdictions
in the United States as the Agents may reasonably request,
including, without limitation, the provinces and territories of
Canada and other jurisdictions outside the United States, and each
such qualification shall be in effect and not subject to any stop
order or other proceeding on the relevant Representation
Date.
(j) Stock Exchange Listing. The Shares
shall have been duly authorized for listing on the NYSE and the
TSX, subject only to notice of issuance at or prior to the
applicable Settlement Date.
(k) Securities Act Filings Made. All
filings with the Commission required by General Instruction II.L of
Form F-10, the Act and required by the Canadian Qualifying
Authorities to have been filed prior to the issuance of any Agency
Transaction Notice hereunder shall have been made within the
applicable time period prescribed for such filing by General
Instruction II.L of Form F-10, the Act and Canadian Securities
Laws.
(l) FINRA. If a filing with FINRA is
required, FINRA shall not have objected to the fairness or
reasonableness of the terms or arrangements under this
Agreement.
(m) Regulation M. The Common Shares shall
be an “actively-traded security” excepted from the
requirements of Rule 101 of Regulation M under the Exchange Act by
subsection (c)(1) of such rule.
(n) Additional Certificates. The Company
shall have furnished to the Agents such certificate or
certificates, in addition to those specifically mentioned herein,
as the Agents may have reasonably requested as to the accuracy and
completeness at each Representation Date of any statement in the
Registration Statement or the Prospectuses or any documents filed
under the Exchange Act and Canadian Securities Laws and deemed to
be incorporated by reference into the Prospectuses, as to the
accuracy at such Representation Date of the representations and
warranties of the Company herein, as to the performance by the
Company of its obligations hereunder, or as to the fulfillment of
the conditions concurrent and precedent to the obligations
hereunder of the Agents.
(a) Indemnification of the Agents. The
Company shall indemnify and hold harmless each of the Agents, the
directors, officers, employees, counsel and agents of each of the
Agents and each person, if any, who controls any Agent within the
meaning of Section 15 of the Act or Section 20 of the
Exchange Act from and against any and all losses, claims,
liabilities, expenses and damages (including, without limitation,
any and all investigative, legal and other expenses reasonably
incurred in connection with, and any amount paid in settlement of,
any action, suit or proceeding between any of the indemnified
parties and any indemnifying parties or between any indemnified
party and any third party, or otherwise, or any claim asserted), to
which they, or any of them, may become subject under the Act, the
Exchange Act or other federal or state statutory law or regulation,
at common law or otherwise, insofar as such losses, claims,
liabilities, expenses or damages arise out of or are based on (i)
any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment thereto),
including all documents incorporated therein by reference, or the
omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein
not misleading or (ii) any untrue statement or alleged untrue
statement of a material fact contained in any Permitted Free
Writing Prospectus or the Prospectuses (or any amendment or
supplement thereto) or the omission or alleged omission therefrom
of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading or (iii) any untrue statement or alleged
untrue statement of a material fact contained in any materials or
information provided to investors by, or with the approval of, the
Company in connection with the marketing of the offering of the
Shares, including any roadshow or investor presentations made to
investors by the Company (whether in person or electronically) or
the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
provided, however, that the Company shall not be
liable to the extent that such loss, claim, liability, expense or
damage arises from the sale of the Shares in the public offering to
any person by the Agents and is based on an untrue statement or
omission or alleged untrue statement or omission made in reliance
on and in conformity with information relating to the Agents
furnished in writing to the Company by the Agents expressly for
inclusion in the Registration Statement, the Prospectuses or any
Permitted Free Writing Prospectus. This indemnity agreement will be
in addition to any liability that the Company might otherwise
have.
(b) Indemnification of the Company. Each
Agent shall, severally and not jointly, indemnify and hold harmless
the Company, its agents, each person, if any, who controls the
Company within the meaning of Section 15 of the Act or Section 20
of the Exchange Act, each director of the Company and each officer
of the Company who signs the Registration Statement to the same
extent as the foregoing indemnity from the Company to the Agents,
but only insofar as losses, claims, liabilities, expenses or
damages arise out of or are based on any untrue statement or
omission or alleged untrue statement or omission made in reliance
on and in conformity with information relating to an Agent
furnished in writing to the Company by an Agent expressly for
inclusion in the Registration Statement, any Permitted Free Writing
Prospectus or the Prospectuses. This indemnity will be in addition
to any liability that the Agents might otherwise have. The Company
acknowledges that the names of the Agents set forth on the cover
and under the heading “Relationship with Certain of the Agents
(Conflicts of Interest)” in the Prospectus Supplements
constitute the only information furnished in writing by or on
behalf of the Agents for inclusion in the Registration Statement,
any Permitted Free Writing Prospectus or the
Prospectuses.
(c) Indemnification Procedures. Any party
that proposes to assert the right to be indemnified under this
Section 5 shall, promptly after receipt of notice of commencement
of any action against such party in respect of which a claim is to
be made against an indemnifying party or parties under this Section
5, notify each such indemnifying party of the commencement of such
action, enclosing a copy of all papers served, but the omission so
to notify such indemnifying party shall not relieve the
indemnifying party from any liability that it may have to any
indemnified party under the foregoing provisions of this
Section 5 unless, and only to the extent that, such omission
results in the forfeiture of substantive rights or defenses by the
indemnifying party. If any such action is brought against any
indemnified party and it notifies the indemnifying party of its
commencement, the indemnifying party will be entitled to
participate in and, to the extent that it elects by delivering
written notice to the indemnified party promptly after receiving
notice of the commencement of the action from the indemnified
party, jointly with any other indemnifying party similarly
notified, to assume the defense of the action, with counsel
satisfactory to the indemnified party, and after notice from the
indemnifying party to the indemnified party of its election to
assume the defense, the indemnifying party will not be liable to
the indemnified party for any legal or other expenses except as
provided below and except for the reasonable costs of investigation
subsequently incurred by the indemnified party in connection with
the defense. The indemnified party will have the right to employ
its own counsel in any such action, but the fees, expenses and
other charges of such counsel will be at the expense of such
indemnified party unless (i) the employment of counsel by the
indemnified party has been authorized in writing by the
indemnifying party, (ii) the indemnified party has reasonably
concluded (based on advice of counsel) that there may be legal
defenses available to it or other indemnified parties that are
different from or in addition to those available to the
indemnifying party, (iii) a conflict or potential conflict exists
(based on advice of counsel to the indemnified party) between the
indemnified party and the indemnifying party (in which case the
indemnifying party shall not have the right to direct the defense
of such action on behalf of the indemnified party) or (iv) the
indemnifying party has not in fact employed counsel to assume the
defense of such action within a reasonable time after receiving
notice of the commencement of the action, in each of which cases
the reasonable fees, disbursements and other charges of counsel
shall be at the expense of the indemnifying party or parties. It is
understood that the indemnifying party or parties shall not, in
connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees, disbursements and
other charges of more than one separate firm admitted to practice
in such jurisdiction at any one time for all such indemnified party
or parties. All such fees, disbursements and other charges shall be
reimbursed by the indemnifying party promptly as they are incurred.
An indemnifying party shall not be liable for any settlement of any
action or claim effected without its written consent (which consent
will not be unreasonably withheld or delayed). No indemnifying
party shall, without the prior written consent of each indemnified
party, settle or compromise or consent to the entry of any judgment
in any pending or threatened claim, action or proceeding relating
to the matters contemplated by this Section 5 (whether or not any
indemnified party is a party thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising or that may arise out
of such claim, action or proceeding and (ii) does not include a
statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party. Notwithstanding
the foregoing, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by this Section
5(c), 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 45 days after
receipt by such indemnifying party of the aforesaid request, (ii)
such indemnifying party shall have received notice of the terms of
such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have
reimbursed such indemnified party in accordance with such request
prior to the date of such settlement.
(d) Contribution. In order to provide for
just and equitable contribution in circumstances in which the
indemnification provided for in the foregoing paragraphs of this
Section 5 is applicable in accordance with its terms but for any
reason is held to be unavailable from the Company or the Agents,
the Company and the Agents shall contribute to the total losses,
claims, liabilities, expenses and damages (including, without
limitation, any investigative, legal and other expenses reasonably
incurred in connection with, and any amount paid in settlement of,
any action, suit or proceeding or any claim asserted, but after
deducting any contribution received by the Company from persons
other than the Agents, such as persons who control the Company
within the meaning of the Act, officers of the Company who signed
the Registration Statement and directors of the Company, who also
may be liable for contribution) to which the Company and the Agents
may be subject in such proportion as shall be appropriate to
reflect the relative benefits received by the Company on the one
hand and the Agents on the other hand. The relative benefits
received by the Company on the one hand and the Agents on the other
hand shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by
the Company bear to the sum of (i) the total compensation to the
Agents pursuant to Section 1(a)(x) (in the case of one or more
Agency Transactions hereunder) and (ii) the underwriting discounts
and commissions received by the Agents as set forth in the table on
the cover page of the Prospectuses (in the case of one or more
Principal Transactions pursuant to Terms Agreements). If, but only
if, the allocation provided by the foregoing sentence is not
permitted by applicable law, the allocation of contribution shall
be made in such proportion as is appropriate to reflect not only
the relative benefits referred to in the foregoing sentence but
also the relative fault of the Company, on the one hand, and the
Agents, on the other hand, with respect to the statements or
omissions which resulted in such loss, claim, liability, expense or
damage, or action in respect thereof, as well as any other relevant
equitable considerations with respect to such offering. Such
relative fault shall be determined by reference to whether the
untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact relates to information
supplied by the Company or the Agents, the intent of the parties
and their relative knowledge, access to information and opportunity
to correct or prevent such statement or omission. The amount paid
or payable by an indemnified party as a result of the loss, claim,
liability, expense or damage, or action in respect thereof,
referred to above in this subsection (d) shall be deemed to
include, for purpose of this subsection (d), any legal or other
expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this subsection (d), the
Agents shall not be required to contribute any amount in excess of
the sum of (i) the total compensation to the Agents pursuant to
Section 1(a)(x) (in the case of one or more Agency Transactions
hereunder) and (ii) the underwriting discounts and commissions
received by the Agents as set forth in the table on the cover page
of the Prospectuses (in the case of one or more Principal
Transactions pursuant to Terms Agreements), and no person found
guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
For purposes of this subsection (d), any person who controls a
party to this Agreement within the meaning of the Act will have the
same rights to contribution as that party, and each officer of the
Company who signed the Registration Statement will have the same
rights to contribution as the Company, subject in each case to the
provisions hereof. Any party entitled to contribution, promptly
after receipt of notice of commencement of any action against such
party in respect of which a claim for contribution may be made
under this subsection (d), will notify any such party from whom
contribution may be sought, but the omission so to notify will not
relieve the party from whom contribution may be sought from any
other obligation it may have under this subsection (d). No party
will be liable for contribution with respect to any action or claim
settled without its written consent (which consent will not be
unreasonably withheld).
(e) Survival. The obligations of the
Company under this Section 5 shall be in addition to any liability
which the Company may otherwise have and shall extend, upon the
same terms and conditions, to any affiliate of an Agent and each
person, if any, who controls an Agent or any such affiliate within
the meaning of the Act; and the obligations of the Agents under
this Section 5 shall be in addition to any liability which it may
otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the
Act. The indemnity and contribution agreements contained in this
Section 5 and the representations and warranties of the Company
contained in this Agreement shall remain operative and in full
force and effect regardless of (i) any investigation made by or on
behalf of the Agents, (ii) acceptance of any of the Shares and
payment therefor or (iii) any termination of this
Agreement.
(a) The Company may
terminate this Agreement in its sole discretion at any time upon
giving prior written notice to the Agents. Any such termination
shall be without liability of any party to the other party, except
that (i) with respect to any pending sale, the obligations of the
Company, including, without limitation, in respect of compensation
of the Agents, shall remain in full force and effect
notwithstanding such termination; and (ii) the provisions of
Sections 2, 3 (except that if no Shares have been previously sold
hereunder or under any Terms Agreement, only Section 3(i)), 5,
7(d), 7(f) and 7(k) of this Agreement shall remain in full force
and effect notwithstanding such termination. In the case of any
sale by the Company pursuant to a Terms Agreement, the obligations
of the Company pursuant to such Terms Agreement and this Agreement
may not be terminated by the Company without the prior written
consent of the Agents.
(b) The Agents may
terminate this Agreement in their sole discretion at any time upon giving prior
written notice to the Company. Any such termination shall be
without liability of any party to the other party, except that (i)
with respect to any pending sale, the obligations of the Company,
including, without limitation, in respect of compensation of the
Agents, shall remain in full force and effect notwithstanding such
termination; and (ii) the provisions of Sections 2, 3 (except that
if no Shares have been previously sold hereunder or under any Terms
Agreement, only Section 3(i)), 5, 7(d), 7(f) and 7(k) of this
Agreement shall remain in full force and effect notwithstanding
such termination. In the case of any purchase by the Agents
pursuant to a Terms Agreement, the Agents may, by written notice to
the Company, terminate their obligations pursuant to such Terms
Agreement at any time prior to or on the Settlement Date if, since
the time of execution of the Terms Agreement or the respective
dates as of which information is given in the Registration
Statement and the Prospectus:
(i) trading of any
securities of the Company shall have been suspended on any exchange
or in any over-the-counter market;
(ii) trading
generally shall have been suspended or limited on or by, as the
case may be, any “national securities exchange” (as
defined in the Exchange Act), or minimum or maximum prices shall
have been generally established on any such exchange, or additional
material governmental restrictions, not in force on the date of
this Agreement, shall have been imposed upon trading in securities
generally by any such exchange or by order of the Commission or any
court or other governmental authority;
(iii) a
general banking moratorium shall have been declared by any of
federal, New York or Canadian authorities;
(iv) the
United States or Canada shall have become engaged in new
hostilities, there shall have been an escalation in hostilities
involving the United States or Canada or there shall have been a
declaration of a national emergency or war by the United States or
Canada or there shall have occurred such a material adverse change
in general economic, political or financial conditions, including,
without limitation, as a result of terrorist activities after the
date hereof (or the effect of international conditions on the
financial markets in the United States or Canada shall be such), or
any other calamity or crisis shall have occurred, the effect of any
of which is such as to make it impracticable or inadvisable to
market the Shares on the terms and in the manner contemplated by
the Prospectus;
(v) if the Company or
any of the Subsidiaries shall have sustained a loss material or
substantial to the Company or any of the Subsidiaries by reason of
flood, fire, accident, hurricane, earthquake, theft, sabotage, or
other calamity or malicious act, whether or not such loss shall
have been insured, the effect of any of which is such as to make it
impracticable or inadvisable to market the Shares on the terms and
in the manner contemplated by the Prospectus; or
(vi) if
there shall have been a Material Adverse Change.
(c) This Agreement
shall remain in full force and effect until the earliest to occur
of (A) termination of this Agreement pursuant to subsection (a) or
(b) above or otherwise by mutual written agreement of the parties,
(B) such date that the aggregate gross sales proceeds of the Shares
sold pursuant to this Agreement (including, without limitation, one
or more Terms Agreements pursuant hereto) equals the Maximum Amount
and (C) September 26, 2021, in each case except that (i) with
respect to any pending sale, the obligations of the Company,
including, without limitation, in respect of compensation of the
Agents, shall remain in full force and effect notwithstanding such
termination; and (ii) the provisions of Sections 2, 3 (except that
if no Shares have been previously sold hereunder or under any Terms
Agreement, only Section 3(i)), 5, 7(d), 7(f) and 7(k) of this
Agreement shall remain in full force and effect notwithstanding
such termination.
(d) Any termination of
this Agreement shall be effective on the date specified in the
notice of termination; provided that such termination shall
not be effective until the close of business on the date of receipt
of such notice by the Agents or the Company, as the case may be. If
such termination shall occur prior to the Settlement Date for any
sale of Shares, such sale shall settle in accordance with the
provisions of Section 1 (in the case of an Agency Transaction) or
in accordance with the relevant Terms Agreement (in the case of a
Principal Transaction).
(a) Notices. Notice given pursuant to any of the
provisions of this Agreement shall be in writing and, unless
otherwise specified, shall be mailed, hand delivered or
telecopied: (i) if
to the Agents, at the offices of BMO Capital Markets Corp., 0 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity Capital Markets
desk, with a copy to the Legal Department
(Fax:
, with a copy to:
Blake,
Xxxxxxx & Xxxxxxx LLP
000 Xxxxxxx Xxxxxx,
Xxxxx 0000
Xxxxxxxxx, XX X0X
0X0
Attention: Xxx
Xxxxxx
Email:
xxx.xxxxxx@xxxxxx.xxx
-and-
Xxxx,
Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP
Toronto-Dominion
Centre
00 Xxxx Xxxxxx
Xxxx, Xxxxx 0000
X.X. Xxx
000
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention:
Xxxxxxxxxxx X. Xxxxxxxx
Email:
xxxxxxxxx@xxxxxxxxx.xxx
Eldorado Gold
Corporation
Suite 1188 Five
Bentall Centre
000 Xxxxxxx
Xxxxxx
Xxxxxxxxx , XX X0X
0X0
Attention: Xxxxx
Xxx and Xxxxxx Xxx
Email:
With a
copy to:
Fasken
Xxxxxxxxx DuMoulin LLP
000
Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX X0X
0X0
Attention: Georald
Ingborg
Email:
xxxxxxx@xxxxxx.xxx
Any such notice shall be effective only upon receipt. Any notice
under Section 5 may be made by telecopy or telephone, but if so
made shall be subsequently confirmed in writing (which may include,
in the case of the Agents, electronic mail to any two Authorized
Company Representatives).
(b) Consent to Jurisdiction. By the
execution and delivery of this Agreement, the Company (i)
acknowledges that it has, by separate written instrument,
irrevocably designated and appointed CT Corporation System (or any
successor) (together with any successor, the “Agent for Service”), as its
authorized agent upon which process may be served in any suit or
proceeding arising out of or relating to this Agreement or the
Purchased Securities, that may be instituted in any federal or
state court in the State of New York, or brought under U.S.
securities laws, and acknowledges that the Agent for Service has
accepted such designation, and (ii) agrees that service of process
upon the Agent for Service (or any successor) and written notice of
said service to the Company shall be deemed in every respect
effective service of process upon the Company in any such suit or
proceeding. The Company further agrees to take any and all action,
including the execution and filing of any and all such documents
and instruments, as may be necessary to continue such designation
and appointment of the Agent for Service in full force and effect
so long as any of the Purchased Securities shall be
outstanding.
The
Company irrevocably (i) agrees that any legal suit, action or
proceeding against the Company brought by an Agent or by any person
who controls an Agent arising out of or based upon this Agreement
or the transactions contemplated thereby may be instituted in the
courts of New York State located in the Borough of Manhattan and
the U.S. District Court for the Southern District of New York, (ii)
waives, to the fullest extent it may effectively do so, any
objection which it may now or hereafter have to the laying of venue
of any such proceeding and (iii) submits to the exclusive
jurisdiction of such courts in any such suit, action or proceeding.
To the extent that the Company has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process
(whether through service of notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with
respect to itself or its property, it hereby irrevocably waives
such immunity in respect of its obligations under the
above-referenced documents, to the extent permitted by law. The
provisions of this Section 7(b) shall survive any termination of
this Agreement, in whole or in part.
(c) No Third Party Beneficiaries. The
Company acknowledges and agrees that the Agents are acting solely
in the capacity of arm’s length contractual counterparties to
the Company with respect to the offering of Shares contemplated
hereby (including in connection with determining the terms of the
offering) and not as financial advisors or fiduciaries to, or
agents of, the Company or any other person. Additionally, the
Agents are not advising the Company or any other person as to any
legal, tax, investment, accounting or regulatory matters in any
jurisdiction. The Company shall consult with its own advisors
concerning such matters and shall be responsible for making its own
independent investigation and appraisal of the transactions
contemplated hereby, and the Agents shall have no responsibility or
liability to the Company with respect thereto. Any review by the
Agents of the Company, the transactions contemplated hereby or
other matters relating to such transactions will be performed
solely for the benefit of the Agents and shall not be on behalf of
the Company.
(d) Survival of Representations and
Warranties. All representations, warranties and agreements
of the Company contained herein or in certificates or other
instruments delivered pursuant hereto (including, without
limitation, any Terms Agreement) shall remain operative and in full
force and effect regardless of any investigation made by or on
behalf of the Agents or any of their controlling persons and shall
survive delivery of and payment for the Shares
hereunder.
(e) Disclaimer of Fiduciary Relationship.
The Company acknowledges and agrees that (i) the purchase and sale
of the Shares pursuant to this Agreement, including the
determination of the terms of the offering and any related
discounts and commissions, is an arm’s-length commercial
transaction between the Company, on the one hand, and the Agents,
on the other hand, (ii) in connection with the offering
contemplated by this Agreement and the process leading to such
transaction, the Agents owe no fiduciary duties to the Company or
its securityholders, creditors, employees or any other party, (iii)
the Agents have not assumed nor will they assume any advisory or
fiduciary responsibility in favor of the Company with respect to
the offering of the Shares contemplated by this Agreement or the
process leading thereto (irrespective of whether the Agents or
their affiliates have advised or are currently advising the Company
on other matters) and the Agents have no obligation to the Company
with respect to the offering of the Shares contemplated by this
Agreement except the obligations expressly set forth in this
Agreement, (iv) the Agents and their affiliates may be engaged in a
broad range of transactions that involve interests that differ from
those of the Company and (v) the Agents have not provided any
legal, accounting, regulatory or tax advice with respect to the
offering contemplated by this Agreement and the Company has
consulted its own legal, accounting, regulatory and tax advisors to
the extent it deemed appropriate.
(f) Governing Law. THIS AGREEMENT AND EACH
TERMS AGREEMENT, AND ANY DISPUTE, CLAIM OR CONTROVERSY ARISING
UNDER OR RELATED TO THIS AGREEMENT OR SUCH TERMS AGREEMENT, SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
ENTIRELY WITHIN SUCH STATE. Each party hereto hereby irrevocably
submits for purposes of any action arising from this Agreement or
any Terms Agreement brought by the other party hereto to the
jurisdiction of the courts of New York State located in the Borough
of Manhattan and the U.S. District Court for the Southern District
of New York.
(g) Judgment Currency. The Company agrees
to indemnify each Agent, their directors, officers, affiliates and
each person, if any, who controls an Agent within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, against
any loss incurred by the Agents as a result of any judgment or
order being given or made for any amount due hereunder and such
judgment or order being expressed and paid in a currency (the
“judgment
currency”) other than U.S. dollars and as a result of
any variation as between (i) the rate of exchange at which the U.S.
dollar amount is converted into the judgment currency for the
purpose of such judgment or order, and (ii) the rate of exchange at
which such indemnified person is able to purchase U.S. dollars with
the amount of the judgment currency actually received by the
indemnified person. The foregoing indemnity shall constitute a
separate and independent obligation of the Company and shall
continue in full force and effect notwithstanding any such judgment
or order as aforesaid. The term “rate of exchange”
shall include any premiums and costs of exchange payable in
connection with the purchase of, or conversion into, the relevant
currency.
(h) Compliance with USA Patriot Act. In
accordance with the requirements of the USA Patriot Act (Title III
of Pub. L. 107-56 (signed into law October 26, 2001)), the Agents
are required to obtain, verify and record information that
identifies their respective clients, including the Company, which
information may include the name and address of their respective
clients, as well as other information that will allow the Agents to
properly identify their respective clients.
(i) Counterparts. This Agreement and each
Terms Agreement may be signed in two or more counterparts with the
same effect as if the signatures thereto and hereto were upon the
same instrument.
(j) Survival of Provisions Upon Invalidity of Any
single Provision. In case any provision in this Agreement or
any Terms Agreement shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
(k) Waiver of Jury Trial. Each of the
Company and each of the Agents hereby irrevocably waives any right
it may have to a trial by jury in respect of any claim based upon
or arising out of this Agreement, any Terms Agreement or the
transactions contemplated hereby or thereby.
(l) Titles and Subtitles. The titles of the
sections and subsections of this Agreement and any Terms Agreement
are for convenience and reference only and are not to be considered
in construing this Agreement or such Terms Agreement.
(m) Entire Agreement. Other than the terms
set forth in each Transaction Notice delivered hereunder and each
Terms Agreement executed and delivered pursuant hereto, this
Agreement embodies the entire agreement and understanding between
the parties hereto and supersedes all prior agreements and
understandings relating to the subject matter hereof. Neither this
Agreement nor any Terms Agreement may be amended or otherwise
modified or any provision hereof waived except by an instrument in
writing signed by the Agents and the Company.
[Signature
page follows]
Please
confirm that the foregoing correctly sets forth the agreement
between the Company and the Agents.
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Very
truly yours,
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ELDORADO GOLD CORPORATION
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By:
(signed)
"Xxxxxx
Xxx"
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Name:
Xxxxxx Xxx
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Title:
Executive VP and
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Chief Financial Officer
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Confirmed
as of the date first above mentioned:
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BMO XXXXXXX XXXXX INC.
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By: (signed)
"Xxxxx
Xxxxxx"
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Name:
Xxxxx Xxxxxx
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Title:
Managing Director
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Confirmed
as of the date first above mentioned:
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BMO CAPITAL MARKETS CORP.
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By: (signed)
"Xxxxxxx
Xxxxxxxx"
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Name:
Xxxxxxx Xxxxxxxx
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Title:
Managing Director
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SCHEDULE
1
AUTHORIZED
COMPANY REPRESENTATIVES*
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Name
and Office / Title
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E-mail
Address
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Telephone
Numbers
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Xxxxx
Xxx
Executive
VP and Chief Strategy Officer
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Office:
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Xxxxxx
Xxx
Executive
VP and Chief Financial Officer
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Office:
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Xxxxxxx
Xxxxxx
Executive
VP and General Counsel
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Office:
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* Notices to be provided to at
least two of the above Company Representatives.
SCHEDULE
2
MATERIAL
SUBSIDIARIES
Eldorado
Gold (Greece) BV
Integra
Gold Corp.
Integra
Gold (Québec) Inc.
SG
Resources B.V.
Eldorado
Gold (Netherlands) BV
Tüprag
Metal Madencilik Sanayi ve Ticaret A.Ş.
Hellas
Gold S.A.
SCHEDULE
3
ISSUER
FREE WRITING PROSPECTUSES
None.
SCHEDULE
4
Qualified Persons Who Filed Consents with the Company’s
Registration Statement
1.
Xxxx Xxxxxxx,
FAusIMM, Chief Operating Officer of the Company;
2.
Xxxx Xxxxxxx,
P.Eng., President of Nilsson Mine Services;
3.
Xxxx Xxxxx, P.Eng.,
Manager, Underground Mining for the Company;
4.
Xxxxxxx Xxxxx,
Ph.D., P.Geo., Director, Technical Services for the
Company;
5.
Xxxxx Xxxxxxxxxx,
P.Eng., Project Manager of the Company;
6.
Xxxxxxx Forward,
FIMMM, COO of Euromax Resources Limited;
7.
Xxxxxxx Xxxxxxxx,
P.Xxx., Exploration Manager, Eastern Canada for the
Company;
8.
WSP Canada
Inc.;
9.
Xxxxxxx Xxxxxx, P.
Eng., Director, Mine Engineering (Open Pit) for the
Company;
10.
Ertan Uludag, P.
Geo., Resource Geologist for the Company; and
11.
Xxxxx Xxxxx, Ph.
D., P, Geo., Vice President, Exploration for the
Company.
SCHEDULE
5
Material Mining Properties
1.
Kışladağ,
Turkey;
2.
Efemçukuru,
Turkey;
3.
Olympias,
Greece;
4.
Skouries, Greece;
and
5.
Lamaque,
Canada.
EXHIBIT
A
[Company
Letterhead]
[_______],
20[__]
[BMO
Xxxxxxx Xxxxx Inc.] / [BMO Capital Markets Corp.]
[3
Times Square] / [_______]
VIA
EMAIL
TRANSACTION NOTICE
Ladies
and Gentlemen:
The
purpose of this Transaction Notice is to propose certain terms of
the Agency Transaction entered into with the [Canadian Agent / U.S.
Agent] under, and pursuant to, that certain Equity Distribution
Agreement between the Company, the Canadian Agent and the U.S.
Agent, dated [_______], 20[__] (the “Agreement”).
Please indicate your acceptance of the proposed terms below. Upon
acceptance, the particular Agency Transaction to which this
Transaction Notice relates shall supplement, form a part of, and be
subject to, the Agreement. Capitalized terms used but not otherwise
defined herein shall have the meanings ascribed to them in the
Agreement.
The
terms of the particular Agency Transaction to which this
Transaction Notice relates are as follows:
Trading Day(s) on
which Shares may be Sold:
[_______], 20[__],
[_______], 20[__] . . . [_______], 20[__]
Maximum
Number of Shares
to be Sold in the
Aggregate:
[_______]
Maximum
Number of Shares
to be Sold on each
Trading Day:
[_______]
Stock
exchange:
[_______]
Floor
Price:
USD[__.__]
[Remainder
of Page Intentionally Blank]
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Very truly
yours,
ELDORADO GOLD
CORPORATION
By:______________________________
Name:
Title:
|
Accepted
and agreed as of
the
date first above written:
[BMO
XXXXXXX XXXXX INC.] / [BMO CAPITAL MARKETS CORP.]
By:______________________________
Name:
Title:
EXHIBIT
B
ELDORADO
GOLD CORPORATION
Common
Shares
TERMS
AGREEMENT
[_______],
20[__]
[BMO
Xxxxxxx Xxxxx Inc.] / [BMO Capital Markets Corp.]
[3
Times Square] / [_______]
[New
York, New York 10036] / [_______]
Ladies
and Gentlemen:
Eldorado Gold
Corporation, a corporation governed by the Canada Business
Corporations Act (the “Company”), proposes, subject to
the terms and conditions stated herein, in Schedule hereto and in
the Equity Distribution Agreement, dated [_______], 20[__] (the
“Equity Distribution Agreement”), between the Company,
BMO Xxxxxxx Xxxxx Inc. (the “Canadian Agent”) and BMO
Capital Markets Corp. (the “U.S. Agent”) to issue and
sell to the [Canadian Agent / U.S. Agent] [_______] shares of the
Company’s common shares, no par value per share (the
“Purchased Shares”)[, and, solely for the purpose of
covering over-allotments, to grant to the [Canadian Agent / U.S.
Agent] the option to purchase an additional [_______] shares of
such common shares (the “Additional Shares”)].
Capitalized terms used but not otherwise defined herein shall have
the meanings ascribed to them in the Agreement.
[The
[Canadian Agent / U.S. Agent] shall have the right to purchase from
the Company all or a portion of the Additional Shares as may be
necessary to cover over-allotments made in connection with the
offering of the Purchased Shares at the same purchase price per
share to be paid by the [Canadian Agent / U.S. Agent] to the
Company for the Purchased Shares. This option may be exercised by
the [Canadian Agent / U.S. Agent] at any time (but not more than
once) on or before the thirtieth day following the date of this
Terms Agreement, by written notice 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 when the
Additional Shares are to be delivered (such date, the “Option
Settlement Date”); provided, however, that the Option Settlement
Date shall not be earlier than the Settlement Date (as set forth in
the Schedule hereto) nor earlier than the second business day after
the date on which the option shall have been exercised nor later
than the fifth business day after the date on which the option
shall have been exercised. Payment of the purchase price for the
Additional Shares shall be made at the Option Settlement Date in
the same manner and at the same office as the payment for the
Purchased Shares.]
Each of
the provisions of the Equity Distribution Agreement not
specifically related to the solicitation by the [Canadian Agent /
U.S. Agent], as agent of the Company, of offers to purchase Shares
in Agency Transactions is incorporated herein by reference in its
entirety, and shall be deemed to be part of this Terms Agreement to
the same extent as if such provisions had been set forth in full
herein.
An
amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Purchased Shares
[and the Additional Shares], in the form heretofore delivered to
the [Canadian Agent / U.S. Agent] is now proposed to be filed with
the Securities and Exchange Commission.
Subject
to the terms and conditions set forth herein and in the Schedule
hereto and subject the terms and conditions of the Equity
Distribution Agreement incorporated herein as provided in the
second immediately preceding paragraph, the Company agrees to issue
and sell to the [Canadian Agent / U.S. Agent], and the [Canadian
Agent / U.S. Agent] agrees to purchase from the Company, the
Purchased Shares at the time and place and at the purchase price
set forth in the Schedule hereto.
[Remainder
of Page Intentionally Blank]
If the
foregoing is in accordance with your understanding, please sign and
return to us a counterpart hereof, whereupon this Terms Agreement,
including those provisions of the Equity Distribution Agreement
incorporated herein by reference, shall constitute a binding
agreement between the [Canadian Agent / U.S. Agent] and the
Company.
ELDORADO GOLD
CORPORATION
By:___________________________
Name:
Title:
Accepted
and agreed as of
the
date first above written:
[BMO
XXXXXXX XXXXX INC.] / [BMO CAPITAL MARKETS CORP.]
By:_____________________________
Name:
Title:
Schedule to Terms Agreement
[Price
to Public:
USD[__.__]
per share]
Purchase
Price by the [Canadian Agent / U.S. Agent]:
USD[__.__]
per share
Method
of and Specified Funds for Payment of Purchase Price:
[By
wire transfer to a bank account specified by the Company in same
day funds.]
Method
of Delivery:
[To the
[Canadian Agent’s / U.S. Agent’s] account, or the
account of [Canadian Agent’s / U.S. Agent’s] designee,
at [The Depository Trust Company / CDS] via DWAC in return for
payment of the purchase price.]
Settlement
Date:
[_______],
20[__]
Closing
Location:
[_______]
Documents
to be Delivered:
The
following documents referred to in the Equity Distribution
Agreement shall be delivered as a condition to the closing (which
documents shall be dated on or as of the date of the Terms
Agreement to which this Scheduled is annexed):
●
the officer’s
certificate referred to in Section 4(c);
●
the legal opinions
referred to in Section 4(e) and Section 3(q);
●
the “comfort
letter” referred to in Section 4(f); and
●
such other
documents as the [Canadian Agent / U.S. Agent] shall reasonably
request.
[Indemnity:
[_______]]
[Lockup:
In
addition to, and without limiting the generality of, the covenant
set forth in Section 3(l) of the Equity Distribution Agreement,
[________].]
EXHIBIT
C
Form of
Opinion of
Canadian Counsel to the Company
1. The Company is a
corporation incorporated and existing under the federal laws of
Canada and has the corporate power to conduct its business as
described in the Canadian Prospectus.
2. Each of Integra
Gold Corp., and Integra Gold (Quebec) Inc. (individually a
“Canadian
Subsidiary” and collectively the “Canadian Subsidiaries”) is a
corporation incorporated and existing under the jurisdiction of its
incorporation and has the corporate power to conduct its business
as described in the Canadian Prospectus.
3. All of the issued
shares of each Canadian Subsidiary are owned directly or indirectly
by the Company.
4. The Company has the
corporate power to sign and file the Canadian Prospectus and the
Canadian Prospectus has been authorized, executed and
delivered.
5. The Company has the
corporate power to enter into and deliver this Agreement and to
perform its obligations hereunder and to carry out the transactions
contemplated thereby and this Agreement has been authorized,
executed and, to the extent delivery is a matter governed by the
laws of the Province of British Columbia or the federal laws of
Canada applicable therein (the “Applicable Law”), delivered by the
Company.
6. The execution and delivery by the Company
of, and the performance by the Company of its obligations under
this Agreement will not contravene any provisions of (i) the
articles of incorporation, as amended, or by-laws of the
Company, (ii)
Applicable Law applicable to the offering of the
Shares, excluding the
Company’s and any of its subsidiaries’ specially
regulated activities (as to which such counsel need express no
opinion), (iii) any
indenture, mortgage, deed of trust, loan, credit agreement, note or
any other agreement listed in Schedule A hereto on the part of the
Company or the Canadian Subsidiaries, or, (iv) to the knowledge of such counsel,
any judgment, order or decree of any governmental body, agency or
court in Canada having jurisdiction over the Company or the
Canadian Subsidiaries [limited to laws of BC and Quebec other than
(iii) which is subject to the laws of Ontario]
7. The authorized share capital of the Company
consists of an unlimited number of Common Shares of the Company,
and the issued and outstanding share capital of the
Company.
8. The attributes and characteristics of the
Shares conform in all material respects with the descriptions
thereof in the Canadian Prospectus, and the form of definitive
certificates representing the Shares has been approved and adopted
by the Company and complies with all requirements of the TSX and
Applicable Law relating thereto.
9. Computershare
Investor Services Inc. has
been duly appointed as the transfer agent and registrar for the
Shares.
10. That number of
Shares that has been reserved for issuance have been duly authorized and reserved
for issuance and, when issued in accordance with the terms of this
Agreement at the Settlement Date, once the Company has received
delivery of payment of the purchase price therefor, the
Shares will be validly
issued and outstanding as fully paid and non-assessable common
shares in the capital of the Company and will not be subject to any
preemptive or similar right under (i) the Canada Business
Corporations Act,
(ii) the Company’s organizational documents, or (iii) any
material instrument, document, contract or other agreement referred
to in the Canadian Prospectus or any material instrument, document,
contract or agreement filed as an exhibit to, or incorporated as an
exhibit by reference in, the Canadian Prospectus.
11. No consent,
approval or authorization or order of or registration,
qualification, recording or filing with any governmental body or
agency is required for the execution, delivery and performance by
the Company of this Agreement or the consummation by the Company of
the transactions contemplated herein or therein, except such as may
have been made or obtained. [limited to laws of BC and
Quebec]
12. The Shares are
listed and posted for trading on the TSX and the TSX has
conditionally approved the listing and posting for trading of up to
[●] Shares, subject to the Company fulfilling all of the
requirements of such exchange.
13. All necessary
documents have been filed, all requisite proceedings have been
taken and all other legal requirements have been fulfilled by the
Company as required under the Canadian Securities Laws to qualify
the distribution of the Shares to the public in each of the
Canadian Qualifying Jurisdictions through registrants duly
registered under the Canadian Securities Laws who have complied
with the relevant provisions of such laws.
14. The Canadian Base
Prospectus, at the time a final receipt was issued therefor (other
than the financial statements, financial schedules and other
financial or statistical data included or omitted therein, as to
which such counsel need express no opinion) appears on its face to
have been appropriately responsive as to form in all material
respects with the requirements of Canadian Securities Laws, except
in those respects for which the Exemption has been
obtained.
15. The statements in the Canadian Prospectus
under the captions “Certain Canadian Federal Income Tax
Considerations” with respect to Canadian federal income tax
fairly summarize the matters referred to therein, subject to
specific limitations and qualifications stated or referred to
therein and applicable thereto.
16. Subject to the specific limitations and
qualifications stated or referred to therein and applicable
thereto, the Shares are qualified investments as of the
date hereof for certain tax-deferred plans as set forth under the
caption “Eligibility for Investment” in the Canadian
Prospectus.
17. No withholding tax
imposed under the federal laws of Canada or the laws of the
Province of British Columbia will be payable in respect of any
commission or fee to be paid by the Company pursuant to this
Agreement to the Agents (as it is not resident in Canada for
purposes of the Income Tax
Act (Canada)), provided any such commission or fee is
payable in respect of services rendered by the Agents wholly
outside of Canada that are performed in the ordinary course of
business carried on by the Agents that includes the performance of
such services for a fee and any such amount is reasonable in the
circumstances.
18. The Corporation is
a reporting issuer (or the equivalent) under the Canadian
Securities Laws of British Columbia, Alberta, Ontario and Quebec,
and is not included on a list of defaulting reporting issuers
maintained by the securities regulatory authorities in those
Canadian provinces.
In
giving the opinions described above, such counsel may (A) exclude
from such opinions the effect or applicability of any United States
or Canadian federal, provincial, territorial, state and local laws,
rules or regulations relating to any necessary consent, licence,
approval, acknowledgment, order or exemption from, registration or
filing with, or notice to, any government department or agency or
any regulatory body or authority required by the Company under
Applicable Law in order to own its particular assets or carry on
its particular business; or (ii) any agreement the Company may have
entered into with, or any decision, order or award made by, any
government department or agency or any regulatory body or authority
of the Province of British Columbia or Canada (B) state that the
opinions above are limited to the laws of the Province of British
Columbia and the federal laws of Canada therein, except to the
extent such opinions are made in reliance on the opinion of local
counsel in other jurisdictions, and (C) and as to matters of fact,
to the extent they deem proper, on certificates of responsible
officers of the Company and public officials.
EXHIBIT
D
Form of
Opinion of
U.S. Counsel to the Company
1. Assuming the
compliance of the Canadian Prospectus, including the documents
incorporated by reference therein, with the requirements of the
securities laws and regulations of the Province of British Columbia
and other requirements of Canadian law, the Registration Statement
and the U.S. Prospectus (other than the financial statements,
including schedules, and other financial and statistical
information contained therein or omitted therefrom, as to which
such counsel need express no opinion) appear on their face to be
appropriately responsive as to form in all material respects with
the applicable requirements of the Act and the rules and
regulations thereunder; the Form F-X, as of its date, appears on
its face to be appropriately responsive in all material respects to
the requirements of the Act.
2. No consent,
approval, authorization or order of, or filing, registration or
qualification with, any Governmental Authority, which has not been
obtained, taken or made (other than as required by any state
securities laws, as to which such counsel expresses no opinion) is
required on the part of the Company under any Applicable Law for
the issuance or sale of the Shares or the performance by the
Company of its obligations under this Agreement. For purposes of
this opinion, the term “Governmental Authority” means any
executive, legislative, judicial, administrative or regulatory body
of the State of New York or the United States of America. For
purposes of this opinion, the term “Applicable Law” means those laws,
rules and regulations of the United States of America and the State
of New York, in each case which in our experience are normally
applicable to the transactions of the type contemplated by this
Agreement.
3. Assuming that this
Agreement has been duly authorized by the Company, this Agreement
(to the extent execution and delivery are governed by the laws of
New York) has been duly executed and delivered by the Company. This
Agreement constitutes the legal, valid and binding obligation of
the Company, enforceable against the Company in accordance with its
terms.
4. The Company is not
and, after giving effect to the offering and the sale of the Shares
and the application of their proceeds as described in each of the
U.S. Prospectus and the Disclosure Package, 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.
5. The statements in
each of the U.S. Prospectus and the Disclosure Package under the
heading “U.S. Federal Income Tax Considerations” with
respect to the tax considerations under United States federal
income tax law, to the extent that they constitute summaries of
United States federal statutes, rules and regulations, or portions
thereof, fairly summarize the matters described therein in all
material respects.
6. The issuance and
sale of the Shares under this Agreement and the execution and
delivery by the Company of this Agreement and the performance of
its obligations hereunder will not (i) breach or result in a
default under any agreement, indenture or instrument listed on
Schedule A hereto, (ii) violate Applicable Law, or (iii) violate
any judgment, order or decree of any Governmental Authority binding
upon the Company listed on Schedule B hereto.
7. Under the laws of
the State of New York relating to submission to jurisdiction, the
Company has validly and irrevocably submitted to the personal
jurisdiction of the courts of New York State located in the Borough
of Manhattan and the U.S. District Court for the Southern District
of New York, in any action arising out of or relating to this
Agreement or the transactions contemplated hereby, 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 purposes described in this Agreement. In giving the
opinion expressed in this paragraph 7, such counsel expresses no
opinion as to the enforceability of forum selection clauses in the
United States federal courts.
Such
counsel will state that they have been advised by the Commission
that the Registration Statement has become effective under the Act.
Such counsel will further state that, to the knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or threatened.
In
rendering such opinion, such counsel may (A) rely as to matters
involving the application of laws of any
jurisdiction other than the State of New York, the General
Corporation Law, the Limited Liability Company Act and the Revised
Uniform Limited Partnership Act of the State of Delaware or the
Federal laws of the United States, to the extent they deem proper
and specified in such opinion, upon the opinion of other counsel of
good standing whom they believe to be reliable and who
are satisfactory to counsel for the Agents and (B) as to matters of
fact, to the extent they deem proper, on certificates of
responsible officers of the Company and public officials.
Form of
Negative Assurance Letter of
U.S. Counsel to the Company
Such
counsel will state that they have participated in the preparation
of the Registration Statement, the U.S. Prospectus and the
Disclosure Package and in conferences and telephone conversations
with officers and other representatives of the Company, including
its Canadian counsel, the Agents, representatives of the Agents,
including their United States and Canadian counsel, and the
independent auditors for the Company, during which the contents of
the Registration Statement, the U.S. Prospectus and the Disclosure
Package and related matters were discussed and, although the
limitations inherent in the independent verification of factual
matters and the role of outside counsel are such that such counsel
have not undertaken to verify independently, and do not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement, the U.S.
Prospectus or the Disclosure Package, except as set forth in
paragraph 5 in the form of opinion of U.S. Counsel to the Company,
on the basis of the foregoing (and relying as to factual matters on
officers, employees and other representatives of the Company), in
the course of such counsel’s work in connection with the
matters contemplated by this Agreement, no information has come to
such counsel’s attention that leads such counsel to believe
that (a) the Registration Statement, at its effective date, at the
applicable Representation Date and on the date hereof (except for
the financial statements, financial statement schedules and other
financial or accounting data included or incorporated by reference
therein or omitted therefrom or from those documents incorporated
by reference in each case, and the information derived from the
reports of, or prepared under the supervision of or reviewed by (as
stated therein), the persons listed on Schedule 4 to this
Agreement, who are qualified persons employed or formerly employed
by the Company, in reliance on the authority of such persons as
“experts” within the meaning of the Act, as to which
such counsel expresses no such belief), contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, (b) the U.S. Prospectus or any amendment or
supplement thereto, as of its date, at the time any amended or
supplemented prospectus was issued and as at the date hereof
(except for the financial statements, financial statement schedules
and other financial or accounting data included or incorporated by
reference therein or omitted therefrom or from those documents
incorporated by reference in each case, and the information derived
from the reports of, or prepared under the supervision of or
reviewed by (as stated therein), the persons listed on Schedule 4
to this Agreement, who are qualified persons employed or formerly
employed by the Company, in reliance on the authority of such
persons as “experts” within the meaning of the Act, as
to which such counsel expresses no such belief), included or
includes an untrue statement of a material fact or omitted or omits
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 (c) the Disclosure Package at the
applicable Representation Date and on the date hereof (except for
the financial statements, financial statement schedules and other
financial or accounting data included or incorporated by reference
therein or omitted therefrom or from those documents incorporated
by reference in each case, and the information derived from the
reports of, or prepared under the supervision of or reviewed by (as
stated therein), the persons listed on Schedule 4 to this
Agreement, who are qualified persons employed or formerly employed
by the Company, in reliance on the authority of such persons as
“experts” within the meaning of the Act, as to which
such counsel expresses no such belief), included or includes an
untrue statement of a material fact or omitted or omits 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.
