UR-ENERGY INC. Common Shares Amended and Restated At Market Issuance Sales Agreement
Exhibit 1.1
Common
Shares
Amended and Restated
At Market Issuance Sales Agreement
June 7,
2021
X.
Xxxxx Securities, Inc.
000
Xxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Cantor
Xxxxxxxxxx & Co.
000
Xxxx Xxxxxx
Xxx
Xxxx, XX 00000
Ladies
and Gentlemen:
Ur-Energy Inc., a
corporation continued under the Canada Business Corporations Act (the
“Company”), confirms its
agreement (this “Agreement”) with X. Xxxxx
Securities, Inc. (“X. Xxxxx Securities”) and
Cantor Xxxxxxxxxx & Co. (“Cantor”; each of X. Xxxxx
Securities and Cantor individually an “Agent” and collectively,
the “Agents”) as
follows:
1. Issuance and Sale of Shares.
The Company agrees that, from time to time during
the
term of this Agreement, on the terms and subject to the conditions
set forth herein, it may issue and sell through or to the Agents,
as sales agent or principal, shares (the “Placement
Shares”) of the Company’s common
shares, no par value per share (the “Common Shares”);
provided however, that in
no event shall the Company issue or sell through the Agents such
number of Placement Shares that (a) exceeds the number of shares or
dollar amount of Common Shares registered on the effective
Registration Statement (as defined below) pursuant to which the
offering is being made or (b) exceeds the number of shares or
dollar amount registered on the Prospectus Supplement (as defined
below) (the lesser of (a) or (b) the “Maximum Amount”).
Notwithstanding anything to the contrary contained herein, the
parties hereto agree that compliance with the limitations set forth
in this Section 1
on the number of Placement Shares issued and sold under this
Agreement shall be the sole responsibility of the Company and that
the Agents shall have no obligation in connection with such
compliance. The issuance and sale of Placement Shares through the
Agents will be effected pursuant to the Registration Statement (as
defined below), although nothing in this Agreement shall be
construed as requiring the Company to use the Registration
Statement to issue any Placement Shares.
The
Company has filed, in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations
thereunder (the “Securities Act”), with
the Securities and Exchange Commission (the “Commission”), a
registration statement on Form S-3 (File No. 333-238324),
including a base prospectus, relating to certain securities,
including the Placement Shares to be issued from time to time by
the Company, and which incorporates by reference documents that the
Company has filed or will file in accordance with the provisions of
the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (the “Exchange Act”). The
Company has prepared a prospectus supplement to the base prospectus
included as part of such registration statement specifically
relating to the Placement Shares (the “Prospectus Supplement”).
The Company will furnish to the Agents, for use by the Agents,
copies of the base prospectus included as part of such registration
statement, as supplemented by the Prospectus Supplement, relating
to the Placement Shares. Except where the context otherwise
requires, such registration statement, including all documents
filed as part thereof or incorporated by reference therein, and
including any information contained in a Prospectus (as defined
below) subsequently filed with the Commission pursuant to Rule
424(b) under the Securities Act or deemed to be a part of such
registration statement pursuant to Rule 430B of the Securities
Act, is herein called the “Registration Statement.”
The base prospectus, including all documents incorporated or deemed
incorporated therein by reference to the extent such information
has not been superseded or modified in accordance with Rule 412
under the Securities Act (as qualified by Rule 430B(g) of the
Securities Act), included in the Registration Statement, as it may
be supplemented by the Prospectus Supplement, in the form in which
such base prospectus and/or Prospectus Supplement have most
recently been filed by the Company with the Commission pursuant to
Rule 424(b) under the Securities Act, is herein called the
“Prospectus.” Any
reference herein to the Registration Statement, the Prospectus 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 or the Prospectus shall be deemed to
refer to and include the filing after the execution hereof of any
document with the Commission incorporated by reference therein (the
“Incorporated
Documents”).
For
purposes of this Agreement, all references to the Registration
Statement, the Prospectus or to any amendment or supplement thereto
shall be deemed to include the most recent copy filed with the
Commission pursuant to its Electronic Data Gathering Analysis and
Retrieval System, or if applicable, the Interactive Data Electronic
Application system when used by the Commission (collectively,
“XXXXX”).
2. Placements. Each time that the
Company wishes to issue and sell Placement Shares hereunder (each,
a “Placement”), it will
notify an Agent (the “Designated Agent”) by
Electronic Notice (or other method mutually agreed to in writing by
the parties) of the number of Placement Shares, the time period
during which sales are requested to be made, any limitation on the
number of Placement Shares that may be sold in any one day and any
minimum price below which sales may not be made (a
“Placement
Notice”), the form of which is attached hereto as
Schedule 1. The
Placement Notice shall originate from any of the individuals from
the Company set forth on Schedule 3 (with a copy to each
of the other individuals from the Company listed on such schedule),
and shall be addressed to each of the individuals from the
Designated Agent set forth on Schedule 3, as such
Schedule 3 may be
amended from time to time. The Placement Notice shall be effective
immediately upon receipt by the Designated Agent unless and until
(i) the Designated Agent declines to accept the terms contained
therein for any reason, in its sole discretion, (ii) the entire
amount of the Placement Shares thereunder has been sold, (iii) the
Company suspends or terminates the Placement Notice, which
suspension and termination rights may be exercised by the Company
in its sole discretion, or (iv) this Agreement has been terminated
under the provisions of Section 13. The amount of any
discount, commission or other compensation to be paid by the
Company to the Designated Agent in connection with the sale of the
Placement Shares shall be calculated in accordance with the terms
set forth in Schedule
2. It is expressly acknowledged and agreed that neither the
Company nor the Designated Agent will have any obligation
whatsoever with respect to a Placement or any Placement Shares
unless and until the Company delivers a Placement Notice to the
Designated Agent and the Designated Agent does not decline such
Placement Notice pursuant to the terms set forth above, and then
only upon the terms specified therein and herein. In the event of a
conflict between the terms of Sections 2 or 3 of this Agreement and the
terms of a Placement Notice, the terms of the Placement Notice will
control.
3. Sale of Placement Shares by the
Agents. Subject to the terms and conditions of this
Agreement, for the period specified in a Placement Notice, the
Designated Agent will use its commercially reasonable efforts
consistent with its normal trading and sales practices and
applicable state and federal laws, rules and regulations and the
rules of the NYSE American LLC (the “Exchange”), to sell the
Placement Shares up to the amount specified in, and otherwise in
accordance with the terms of, such Placement Notice. The Designated
Agent will provide written confirmation to the Company no later
than the opening of the Trading Day (as defined below) immediately
following the Trading Day on which it has made sales of Placement
Shares hereunder setting forth the number of Placement Shares sold
on such day, the compensation payable by the Company to the
Designated Agent pursuant to Section 2 with respect to such
sales, and the Net Proceeds (as defined below) payable to the
Company, with an itemization of the deductions made by the
Designated Agent (as set forth in Section 5(b)) from the gross
proceeds that it receives from such sales. Subject to the terms of
a Placement Notice, the Designated Agent may sell Placement Shares
by any method permitted by law deemed to be an “at the market
offering” as defined in Rule 415 of the Securities Act,
provided that the
Designated Agent shall not sell Placement Shares in Canada.
“Trading
Day” means any day on which Common Shares are
purchased and sold on the Exchange.
During
the term of this Agreement, neither the Agents nor any of their
respective affiliates or subsidiaries shall engage in (i) any short
sale of any security of the Company or (ii) any sale of any
security of the Company that such Agent does not own or any sale
which is consummated by the delivery of a security of the Company
borrowed by, or for the account of, such Agent. Neither the Agents
nor any of their respective affiliates or subsidiaries shall engage
in any proprietary trading or trading for the Agent’s (or its
affiliates’ or subsidiaries’) own account.
Notwithstanding the foregoing, these restrictions shall not apply
to bona fide transactions executed by the Agents on behalf and at
the direction of any third party customer accounts.
Each
Agent agrees and acknowledges that it will not solicit any offers
to sell the Placement Shares from persons resident in any province
or territory of Canada or from any person acquiring such Placement
Shares for the benefit of another person resident in any province
or territory of Canada.
4. Suspension of Sales. The
Company or the Designated Agent may, upon notice to the other party
in writing (including by email correspondence to each of the
individuals of the other party set forth on Schedule 3, if receipt of such
correspondence is actually acknowledged by any of the individuals
to whom the notice is sent, other than via auto-reply) or by
telephone (confirmed immediately by verifiable facsimile
transmission or email correspondence to each of the individuals of
the other party set forth on Schedule 3), suspend any sale
of Placement Shares (a “Suspension”);
provided, however, that
such suspension shall not affect or impair any party’s
obligations with respect to any Placement Shares sold hereunder
prior to the receipt of such notice. While a Suspension is in
effect, any obligation under Sections 7(l), 7(m), and 7(n) with respect to the
delivery of certificates, opinions, or comfort letters to the
Agents, shall be waived. Each of the parties agrees that no such
notice under this Section
4 shall be effective against any other party unless it is
made to one of the individuals named on Schedule 3 hereto, as such
Schedule may be amended from time to time.
5. Sale and Delivery to the Agent;
Settlement.
a. Sale of Placement Shares. On
the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, upon the
Designated Agent’s acceptance of the terms of a Placement
Notice, and unless the sale of the Placement Shares described
therein has been declined, suspended, or otherwise terminated in
accordance with the terms of this Agreement, the Designated Agent,
for the period specified in the Placement Notice, will use its
commercially reasonable efforts consistent with its normal trading
and sales practices and applicable state and federal laws, rules
and regulations and the rules of the Exchange to sell such
Placement Shares up to the amount specified in, and otherwise in
accordance with the terms of, such Placement Notice. The Company
acknowledges and agrees that (i) there can be no assurance that the
Designated Agent will be successful in selling Placement Shares,
(ii) the Designated Agent will incur no liability or obligation to
the Company or any other person or entity if it does not sell
Placement Shares for any reason other than a failure by the
Designated Agent to use its commercially reasonable efforts
consistent with its normal trading and sales practices and
applicable state and federal laws, rules and regulations and the
rules of the Exchange to sell such Placement Shares as required
under this Agreement and (iii) the Designated Agent shall be under
no obligation to purchase Placement Shares on a principal basis
pursuant to this Agreement, except as otherwise agreed by the
Designated Agent and the Company.
b. Settlement of Placement Shares.
Unless otherwise specified in the applicable Placement Notice,
settlement for sales of Placement Shares will occur on the
second (2nd) Trading Day (or
such earlier day as is industry practice for regular-way trading)
following the date on which such sales are made (each, a
“Settlement
Date”). The Designated Agent shall notify the Company
of each sale of Placement Shares no later than opening day
following the Trading Day that the Designated Agent sold Placement
Shares. The amount of proceeds to be delivered to the Company on a
Settlement Date against receipt of the Placement Shares sold (the
“Net
Proceeds”) will be equal to the aggregate sales price
received by the Designated Agent, after deduction for (i) the
Designated Agent’s commission, discount or other compensation
for such sales payable by the Company pursuant to Section 2 hereof, and (ii) any
transaction fees imposed by any governmental or self-regulatory
organization in respect of such sales.
c. Delivery of Placement Shares.
On or before each Settlement Date, the Company will, or will cause
its transfer agent to, electronically transfer the Placement Shares
being sold by crediting the Designated Agent’s or its
designee’s account (provided the Designated Agent shall have
given the Company written notice of such designee and such
designee’s account information at least one Trading Day prior
to the Settlement Date) at The Depository Trust Company through its
Deposit and Withdrawal at Custodian System 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. On each Settlement
Date, the Designated Agent will deliver the related Net Proceeds in
same day funds to an account designated by the Company on, or prior
to, the Settlement Date. The Company agrees that if the Company, or
its transfer agent (if applicable), defaults in its obligation to
deliver Placement Shares on a Settlement Date through no fault of
the Designated Agent, then in addition to and in no way limiting
the rights and obligations set forth in Section 11(a) hereto, it will
(i) hold the Designated Agent harmless against any loss, claim,
damage, or reasonable, documented expense (including reasonable and
documented legal fees and expenses), as incurred, arising out of or
in connection with such default by the Company or its transfer
agent (if applicable) and (ii) pay to the Designated Agent
(without duplication) any commission, discount, or other
compensation to which it would otherwise have been entitled absent
such default.
d. Limitations on Offering Size.
Under no circumstances shall the Company cause or request the offer
or sale of any Placement Shares if, after giving effect to the sale
of such Placement Shares, the aggregate number of Placement Shares
sold pursuant to this Agreement would exceed the lesser of (A)
together with all sales of Placement Shares under this Agreement,
the Maximum Amount, (B) the amount available for offer and sale
under the currently effective Registration Statement and (C) the
amount authorized from time to time to be issued and sold under
this Agreement by the Company’s board of directors, a duly
authorized committee thereof or a duly authorized executive
committee, and notified to the Designated Agent in writing. Under
no circumstances shall the Company cause or request the offer or
sale of any Placement Shares pursuant to this Agreement at a price
lower than the minimum price authorized from time to time by the
Company’s board of directors, a duly authorized committee
thereof or a duly authorized executive committee, and notified to
the Designated Agent in writing.
e. Sales Through Agents. With
respect to the offering and sale of Placement Shares pursuant to
this Agreement, the Company agrees that any offer to sell Placement
Shares, any solicitation of an offer to buy Placement Shares, and
any sales of Placement Shares shall only be effected by or through
one single Agent as the Designated Agent on any single given
Trading Day, and in no event shall the Company request that more
than one Agent offer or sell Placement Shares pursuant to this
Agreement on the same Trading Day.
6. Representations and Warranties of the
Company. Except as disclosed in the Registration Statement
or Prospectus (including the Incorporated Documents), the Company
represents and warrants to, and agrees with each Agent that as of
the date of this Agreement and as of each Applicable Time (as
defined below), unless such representation, warranty or agreement
specifies a different date or time:
a. Registration Statement and
Prospectus. The transactions contemplated by this Agreement
meet the requirements for and comply with the conditions for the
use of Form S-3 under the Securities Act. The Registration
Statement has been filed with the Commission and has been declared
effective under the Securities Act. The Prospectus Supplement will
name each Agent as an agent in the section entitled “Plan of
Distribution.” The Company has not received, and has no
notice of, any order of the Commission preventing or suspending the
use of the Registration Statement, or threatening or instituting
proceedings for that purpose. The Registration Statement and the
offer and sale of Placement Shares as contemplated hereby meet the
requirements of Rule 415 under the Securities Act and comply in all
material respects with said Rule. Any statutes, regulations,
contracts or other documents that are required to be described in
the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement have been so described or
filed, as applicable. Copies of the Registration Statement, the
Prospectus, and any such amendments or supplements and all
documents incorporated by reference therein that were filed with
the Commission on or prior to the date of this Agreement have been
delivered, or are available through XXXXX, to the Agents and their
counsel. The Company has not distributed and, prior to the later to
occur of each Settlement Date and completion of the distribution of
the Placement Shares, will not distribute any offering material in
connection with the offering or sale of the Placement Shares other
than the Registration Statement and the Prospectus and any Issuer
Free Writing Prospectus (as defined below) to which the Agents have
consented, which consent will not be unreasonably withheld or
delayed, or that is required by applicable law or the listing
maintenance requirements of the Exchange or the TSX. The Common
Shares are currently quoted on the Exchange under the trading
symbol “URG.” The Company has not, in the
12 months preceding the date hereof, received notice from the
Exchange to the effect that the Company is not in compliance with
the listing or maintenance requirements of the Exchange. To the
Company’s Knowledge (as defined below), it is in compliance
with all such listing and maintenance requirements.
b. No Misstatement or Omission. At
each Settlement Date, the Registration Statement and the
Prospectus, as of such date, will conform in all material respects
with the requirements of the Securities Act. The Registration
Statement, when it 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. The Prospectus and any
amendment and supplement thereto, on the date thereof and at each
Applicable Time (defined below), did not or will not 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
documents incorporated by reference in the Prospectus or any
Prospectus Supplement did not, and any further documents filed and
incorporated by reference therein will not, when filed with the
Commission, contain an untrue statement of a material fact or omit
to state a material fact required to be stated in such document or
necessary to make the statements in such document, in light of the
circumstances under which they were made, not misleading. The
foregoing shall not apply to statements in, or omissions from, any
such document made in reliance upon, and in conformity with,
information furnished to the Company by the Agents specifically for
use in the preparation thereof.
c. Conformity with Securities Act and
Exchange Act. The Registration Statement, the Prospectus,
any Issuer Free Writing Prospectus or any amendment or supplement
thereto, and the Incorporated Documents, when such documents were
or are filed with the Commission under the Securities Act or the
Exchange Act or became or become effective under the Securities
Act, as the case may be, conformed or will conform in all material
respects with the requirements of the Securities Act and the
Exchange Act, as applicable.
d. Financial Information. The
consolidated financial statements of the Company included or
incorporated by reference in the Registration Statement and the
Prospectus, together with the related notes and schedules, present
fairly, in all material respects, the consolidated financial
position of the Company and the Subsidiaries (as defined below) as
of the dates indicated and the consolidated results of operations,
cash flows and changes in stockholders’ equity of the Company
and the Subsidiaries for the periods specified (subject, in the
case of unaudited statements, to normal year-end audit adjustments
which will not be material, either individually or in the
aggregate) and have been prepared in compliance with the published
requirements of the Securities Act and Exchange Act, as applicable,
and in conformity with generally accepted accounting principles in
the United States (“GAAP”) applied on a
consistent basis (except (i) for such adjustments to accounting
standards and practices as are noted therein and (ii) in the case
of unaudited interim statements, to the extent they may exclude
footnotes or may be condensed or summary statements) during the
periods involved; the other financial and statistical data with
respect to the Company and the Subsidiaries contained or
incorporated by reference in the Registration Statement and the
Prospectus, are accurately and fairly presented and prepared on a
basis consistent with the financial statements and books and
records of the Company; there are no financial statements
(historical or pro forma) that are required to be included or
incorporated by reference in the Registration Statement, or the
Prospectus that are not included or incorporated by reference as
required; the Company and the Subsidiaries do not have any material
liabilities or obligations, direct or contingent (including any off
balance sheet obligations), not described in the Registration
Statement, and the Prospectus which are required to be described in
the Registration Statement or Prospectus; and all disclosures
contained or incorporated by reference in the Registration
Statement and the Prospectus, if any, regarding “non-GAAP
financial measures” (as such term is defined by the rules and
regulations of the Commission) comply in all material respects with
Regulation G of the Exchange Act and Item 10 of Regulation S-K
under the Securities Act, to the extent applicable.
e. Conformity with XXXXX Filing.
The Prospectus delivered to the Agents for use in connection with
the sale of the Placement Shares pursuant to this Agreement will be
identical to the versions of the Prospectus created to be
transmitted to the Commission for filing via XXXXX, except to the
extent permitted by Regulation S-T.
f. Organization. The Company and
any subsidiary that is a significant subsidiary (as such term is
defined in Rule 1-02 of Regulation S-X promulgated by the
Commission) (each, a “Subsidiary,”
collectively, the “Subsidiaries”), are, and
will be, duly organized, validly existing as a corporation and in
good standing under the laws of their respective jurisdictions of
organization. The Company and the Subsidiaries are duly licensed or
qualified as a foreign corporation for transaction of business and
in good standing under the laws of each other jurisdiction in which
their respective ownership or lease of property or the conduct of
their respective businesses requires such license or qualification,
and have all corporate power and authority necessary to own or hold
their respective properties and to conduct their respective
businesses as described in the Registration Statement and the
Prospectus, except where the failure to be so qualified or in good
standing or have such power or authority would not, individually or
in the aggregate, have a material adverse effect on the assets,
business, operations, earnings, properties, condition (financial or
otherwise), prospects, stockholders’ equity or results of
operations of the Company and the Subsidiaries taken as a whole, or
prevent the consummation of the transactions contemplated hereby (a
“Material Adverse
Effect”).
g. Subsidiaries. As of the date
hereof, the Company's only Subsidiaries are set forth on Schedule
6(g). The Company owns directly or indirectly, all of the equity
interests of the Subsidiaries free and clear of any lien, charge,
security interest, encumbrance, right of first refusal or other
restriction, and all the equity interests of the Subsidiaries are
validly issued and are fully paid, nonassessable and free of
preemptive and similar rights.
h. No Violation or Default.
Neither the Company nor any Subsidiary is (i) in violation of
its charter or by-laws or similar organizational documents; (ii) in
default, and no event has occurred that, with notice or lapse of
time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement
or other similar agreement or instrument to which the Company or
any Subsidiary is a party or by which the Company or any Subsidiary
is bound or to which any of the property or assets of the Company
or any Subsidiary is subject; or (iii) in violation of any law or
statute or any judgment, order, rule or regulation of any court or
arbitrator or governmental or regulatory authority, except, in the
case of each of clauses (ii) and (iii) above, for any such
violation or default that would not, individually or in the
aggregate, have a Material Adverse Effect. To the Company’s
Knowledge, no other party under any material contract or other
agreement to which it or any Subsidiary is a party is in default in
any respect thereunder where such default would have a Material
Adverse Effect. The term “Knowledge” as used in
this Agreement shall mean the knowledge of the Company’s
executive officers after due and reasonable inquiry.
i. No Material Adverse Effect.
Since the date of the most recent financial statements of the
Company included or incorporated by reference in the Registration
Statement and Prospectus, there has not been (i) any Material
Adverse Effect, or any development that would result in a Material
Adverse Effect, (ii) any transaction which is material to the
Company and the Subsidiaries taken as a whole, (iii) any obligation
or liability, direct or contingent (including any off-balance sheet
obligations), incurred by the Company or the Subsidiaries, which is
material to the Company and the Subsidiaries taken as a whole, (iv)
any material change in the capital stock (other than (A) the grant
of additional options under the Company’s existing stock
option plans, the grant of additional restricted stock units
(“RSUs”) under the
Company’s RSU Plan, or the issuance of Common Shares upon
exercise of such options or redemption of such RSUs, (B) changes in
the number of outstanding Common Shares of the Company due to the
issuance of shares upon the exercise or conversion of securities
exercisable for, or convertible into, Common Shares outstanding on
the date hereof, (C) as a result of the issuance of Placement
Shares, (D) any repurchases of capital stock of the Company, (E) as
described in a proxy statement filed on Schedule 14A or a
Registration Statement on Form S-4, or (F) otherwise publicly
announced) or outstanding long-term indebtedness of the Company or
the Subsidiaries or (v) any dividend or distribution of any kind
declared, paid or made on the capital stock of the Company or any
Subsidiary, other than in each case above in the ordinary course of
business or as otherwise disclosed in the Registration Statement or
Prospectus (including any document incorporated by reference
therein).
j. Capitalization. The issued and
outstanding shares of capital stock of the Company have been
validly issued, are fully paid and non-assessable and, other than
as disclosed in the Registration Statement or the Prospectus, are
not subject to any preemptive rights, rights of first refusal or
similar rights. The Company has an authorized, issued and
outstanding capitalization as set forth in the Registration
Statement and the Prospectus as of the dates referred to therein
(other than (i) the grant of additional options under the
Company’s existing stock option plans, the grant of
additional RSUs under the Company’s RSU Plan, or the issuance
of Common Shares upon exercise of such options or redemption of
such RSUs, (ii) changes in the number of outstanding Common Shares
of the Company due to the issuance of shares upon the exercise or
conversion of securities exercisable for, or convertible into,
Common Shares outstanding on the date hereof, (iii) as a result of
the issuance of Placement Shares, or (iv) any repurchases of
capital stock of the Company) and such authorized capital stock
conforms to the description thereof set forth in the Registration
Statement and the Prospectus. The description of the Common Shares
in the Registration Statement and the Prospectus is complete and
accurate in all material respects. Except as disclosed in or
contemplated by the Registration Statement or the Prospectus, the
Company did not have outstanding any options to purchase, or any
rights or warrants to subscribe for, or any securities or
obligations convertible into, or exchangeable for, or any contracts
or commitments to issue or sell, any shares of capital stock or
other securities.
k. S-3 Eligibility. (i) At the
time of filing the Registration Statement and (ii) at the time
of the most recent amendment thereto for the purposes of complying
with Section 10(a)(3) of the Securities Act (whether such amendment
was by post-effective amendment, incorporated report filed pursuant
to Section 13 or 15(d) of the Exchange Act or form of prospectus),
the Company met the then applicable requirements for use of Form
S-3 under the Securities Act, including compliance with General
Instruction I.B.1 of Form S-3, as applicable.
l. Authorization; Enforceability.
The Company has full legal right, power and authority to enter into
this Agreement and perform the transactions contemplated hereby.
This Agreement has been duly authorized, executed and delivered by
the Company and is a legal, valid and binding agreement of the
Company enforceable against the Company in accordance with its
terms, except to the extent that (i) enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors’ rights generally and by general
equitable principles and (ii) the indemnification and contribution
provisions of Section
11 hereof may be limited by federal or state securities laws
and public policy considerations in respect thereof.
m. Authorization of Placement
Shares. The Placement Shares, when issued and delivered
pursuant to the terms approved by the board of directors of the
Company or a duly authorized committee thereof, or a duly
authorized executive committee, against payment therefor as
provided herein, will be duly and validly authorized and issued and
fully paid and nonassessable, free and clear of any pledge, lien,
encumbrance, security interest or other claim (other than any
pledge, lien, encumbrance, security interest or other claim arising
from an act or omission of an Agent or a purchaser), including any
statutory or contractual preemptive rights, resale rights, rights
of first refusal or other similar rights, and will be registered
pursuant to Section 12 of the Exchange Act. The Placement Shares,
when issued, will conform in all material respects to the
description thereof set forth in or incorporated into the
Prospectus.
n. No Consents Required. No
consent, approval, authorization, order, registration or
qualification of or with any court or arbitrator or any
governmental or regulatory authority is required for the execution,
delivery and performance by the Company of this Agreement, and the
issuance and sale by the Company of the Placement Shares as
contemplated hereby, except for such consents, approvals,
authorizations, orders and registrations or qualifications (i) as
may be required under applicable state securities laws or by the
by-laws and rules of the Financial Industry Regulatory Authority
(“FINRA”) or the Exchange,
including any notices that may be required by the Exchange, in
connection with the sale of the Placement Shares by the Agents,
(ii) as may be required under the Securities Act and (iii) as have
been previously obtained by the Company.
o. No Preferential Rights. Except
as set forth in the Registration Statement and the Prospectus, (i)
no person, as such term is defined in Rule 1-02 of Regulation S-X
promulgated under the Securities Act (each, a “Person”), has the right,
contractual or otherwise, to cause the Company to issue or sell to
such Person any Common Shares or shares of any other capital stock
or other securities of the Company (other than upon the exercise of
options or warrants to purchase Common Shares or upon the exercise
of options that may be granted from time to time under the
Company’s stock option plan), (ii) no Person has any
preemptive rights, rights of first refusal, or any other rights
(whether pursuant to a “poison pill” provision or
otherwise) to purchase any Common Shares or shares of any other
capital stock or other securities of the Company from the Company
which have not been duly waived with respect to the offering
contemplated hereby, (iii) no Person has the right to act as an
underwriter or as a financial advisor to the Company in connection
with the offer and sale of the Common Shares, and (iv) no Person
has the right, contractual or otherwise, to require the Company to
register under the Securities Act any Common Shares or shares of
any other capital stock or other securities of the Company, or to
include any such shares or other securities in the Registration
Statement or the offering contemplated thereby, whether as a result
of the filing or effectiveness of the Registration Statement or the
sale of the Placement Shares as contemplated thereby or otherwise,
except in each case for such rights as have been waived on or prior
to the date hereof.
p. Independent Public Accountant.
PricewaterhouseCoopers LLP (the “Accountant”), whose
report on the consolidated financial statements of the Company is
filed with the Commission as part of the Company’s most
recent Annual Report on Form 10-K filed with the Commission and
incorporated into the Registration Statement, are and, during the
periods covered by their report, were independent public
accountants within the meaning of the Securities Act and the Public
Company Accounting Oversight Board (United States). To the
Company’s Knowledge, the Accountant is not in violation of
the auditor independence requirements of the Xxxxxxxx-Xxxxx Act of
2002 (the “Xxxxxxxx-Xxxxx Act”) with
respect to the Company.
q. Enforceability of Agreements.
All agreements between the Company and third parties expressly
referenced in the Prospectus, other than such agreements that have
expired by their terms or whose termination is disclosed in
documents filed by the Company on XXXXX, are legal, valid and
binding obligations of the Company and, to the Company’s
Knowledge, enforceable in accordance with their respective terms,
except to the extent that (i) enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors’ rights generally and by general
equitable principles and (ii) the indemnification provisions of
certain agreements may be limited by federal or state securities
laws or public policy considerations in respect thereof, and except
for any unenforceability that, individually or in the aggregate,
would not have a Material Adverse Effect.
r. No Litigation. There are no
legal, governmental or regulatory actions, suits or proceedings
pending, nor, to the Company’s Knowledge, any legal,
governmental or regulatory investigations, to which the Company or
a Subsidiary is a party or to which any property of the Company or
any Subsidiary is the subject that, individually or in the
aggregate, if determined adversely to the Company or any
Subsidiary, would have a Material Adverse Effect or materially and
adversely affect the ability of the Company to perform its
obligations under this Agreement; to the Company’s Knowledge,
no such actions, suits or proceedings are threatened or
contemplated by any governmental or regulatory authority or
threatened by others that, individually or in the aggregate, if
determined adversely to the Company or any Subsidiary, would have a
Material Adverse Effect; and there are no current or pending legal,
governmental or regulatory actions, suits, proceedings or, to the
Company’s Knowledge, investigations that are required under
the Securities Act to be described in the Prospectus that are not
described in the Prospectus (including any Incorporated
Document).
s. Licenses and Permits. The
Company and the Subsidiaries possess or have obtained, all
licenses, certificates, consents, orders, approvals, permits 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 currently conducted, as described in
the Registration Statement and the Prospectus (the
“Permits”), except where
the failure to possess, obtain or make the same would not,
individually or in the aggregate, have a Material Adverse Effect.
Neither the Company nor any Subsidiary has received written notice
of any proceeding relating to revocation or modification of any
such Permit or has any reason to believe that such Permit will not
be renewed in the ordinary course, except where the failure to
obtain any such renewal would not, individually or in the
aggregate, have a Material Adverse Effect.
t. No Material Defaults. Neither
the Company nor any Subsidiary has defaulted on any installment on
indebtedness for borrowed money or on any rental on one or more
long-term leases, which defaults, individually or in the aggregate,
would have a Material Adverse Effect. The Company has not filed a
report pursuant to Section 13(a) or 15(d) of the Exchange Act since
the filing of its last Annual Report on Form 10-K, indicating that
it (i) has failed to pay any dividend or sinking fund installment
on preferred stock or (ii) has defaulted on any installment on
indebtedness for borrowed money or on any rental on one or more
long-term leases, which defaults, individually or in the aggregate,
would have a Material Adverse Effect.
u. Certain Market Activities.
Neither the Company, nor any Subsidiary, nor, to the Knowledge of
the Company, any of their respective directors, officers or
controlling persons has taken, directly or indirectly, any action
designed, or that has constituted or would cause or result in,
under the Exchange Act or otherwise, the stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Placement Shares.
v. Broker/Dealer Relationships.
Neither the Company nor any Subsidiary or any related entities (i)
is required to register as a “broker” or
“dealer” in accordance with the provisions of the
Exchange Act or (ii) directly or indirectly through one or more
intermediaries, controls or is a “person associated with a
member” or “associated person of a member”
(within the meaning set forth in the FINRA Manual).
w. No Reliance. The Company has
not relied upon the Agents or legal counsel for the Agents for any
legal, tax or accounting advice in connection with the offering and
sale of the Placement Shares.
x. Taxes. The Company and the
Subsidiaries have filed all federal, state, local and foreign tax
returns which have been required to be filed and paid all taxes
shown thereon through the date hereof, to the extent that such
taxes have become due and are not being contested in good faith,
except where the failure to do so would not have a Material Adverse
Effect. Except as otherwise disclosed in or contemplated by the
Registration Statement or the Prospectus, no tax deficiency has
been determined adversely to the Company or any Subsidiary which
has had, or would have, individually or in the aggregate, a
Material Adverse Effect. The Company has no Knowledge of any
federal, state or other governmental tax deficiency, penalty or
assessment which has been or might be asserted or threatened
against it which would have a Material Adverse Effect.
y. Title to Personal Property.
Except as set forth in the Registration Statement or the
Prospectus, the Company and its Subsidiaries have good and valid
title to all personal property described in the Registration
Statement or Prospectus as being owned by them, in each case free
and clear of all liens, encumbrances and claims, except those
matters that would not reasonably be expected, individually or in
the aggregate, to have a Material Adverse Effect. Any personal
property described in the Registration Statement or Prospectus as
being leased by the Company and any of its Subsidiaries is held by
them under valid, existing and enforceable leases, except those
that would not be reasonably expected, individually or in the
aggregate, to have a Material Adverse Effect.
z. Title to Real Property Other than
Mining Claims. Except as set forth in the Registration
Statement or the Prospectus or such as in the aggregate does not
currently result in, and is not reasonably expected in the future
to result in, a Material Adverse Effect, the Company and each of
its Subsidiaries have good and marketable title to their respective
owned interests in real property (“Owned Property”) other
than Mining Claims (as defined below) free and clear of all liens,
security interests, pledges, charges, encumbrances, mortgages and
restrictions (collectively, “Liens”), other than (i)
Permitted Liens and (ii) any Liens described in the Registration
Statement or the Prospectus. No real property owned, leased,
licensed, or used by the Company or any Subsidiary lies in an area
which is, or to the Knowledge of the Company will be, subject to
restrictions which would prohibit, and no statements of facts
relating to the actions or inaction of another person or entity or
his or its ownership, leasing, licensing, or use of any real or
personal property exists or will exist which would prevent, the
continued effective ownership, leasing, licensing, exploration,
development or production or use of such real property in the
business of the Company or any such Subsidiary as presently
conducted, except as may be described in the Registration Statement
and the Prospectus or such as in the aggregate does not currently
result in, and is not reasonably expected in the future to result
in, a Material Adverse Effect. The Company and each of its
Subsidiaries have such consents, easements, rights of way or
licenses from any person (“rights-of-way”) as are
necessary to enable the Company and each of its Subsidiaries to
conduct its business as currently conducted, in the manner
described in the Registration Statement and the Prospectus, subject
to such qualifications as may be set forth in the Registration
Statement and the Prospectus, and except for such rights-of-way the
lack of which would not have, individually or in the aggregate, a
Material Adverse Effect.
aa. Material
Properties. The Material
Properties are the only material properties in which the Company or
any of the subsidiaries has an interest; the Company and each of
the subsidiaries holds Mining Rights in respect of the minerals
located on the Material Properties in which the Company or any of
the material subsidiaries has an interest under valid, subsisting
and enforceable title documents or other recognized and enforceable
agreements or instruments, sufficient to permit the Company or any
of the subsidiaries to explore for and exploit the minerals
relating thereto; the Company and each of the subsidiaries has all
necessary surface rights, access rights and other necessary rights
and interests relating to the Material Properties in which
the Company or any of the
subsidiaries has an interest granting the Company or any of the
subsidiaries the right and ability to explore for and exploit
minerals and metals for development purposes as are appropriate in
view of the rights and interest therein of the Company and the
subsidiaries, as applicable, with only such exceptions as do not
materially interfere with the use made by the Company or any of the
subsidiaries of the rights or interest so held, and each of the
proprietary interests or rights and each of the documents,
agreements and instruments and obligations relating thereto
referred to above is currently in good standing in all material
respects in the name of the Company or a subsidiary,
except where the invalidity of any of the applicable property
interests would not have a Material Adverse Effect (and provided
that nothing in this Agreement shall be deemed a representation
(a) that any of the Material Properties contains a discovery
of valuable minerals, (b) as to the validity of any of the
Material Properties comprising unpatented millsites, or
(c) that the Company or any subsidiary has established or is
maintaining pedis
possessio rights with
respect to any of their unpatented mining
claims).
bb. Mining
Rights. The Mining Rights
of the Company in respect of the Material Properties are in good
standing, are valid, subsisting and enforceable, other than as set
out in the Registration Statement and Prospectus, except where the
invalidity of any of the applicable Mining Rights would not have a
Material Adverse Effect (and provided that nothing in this
Agreement shall be deemed a representation (a) that any of the
Mining Rights contains a discovery of valuable minerals,
(b) as to the validity of any of Mining Rights comprising
unpatented millsites, or (c) that the Company or any
subsidiary has established or is
maintaining pedis
possessio rights with
respect to any of the Mining Rights), and, other than as set forth
in the Registration Statement and Prospectus, are free and clear of any material
Liens or charges. Other than as set out in the Registration
Statement and Prospectus, no material commission, royalty, license
fee or similar payment is payable in respect of any of them. No
other material property rights are necessary for the conduct of the
Company’s business as currently carried on as of the date
hereof; and there are no material restrictions on the ability of
the Company to use, transfer or otherwise exploit any such property
rights. The Company is the holder of Mining Rights necessary to
carry on the activities of the Company as currently conducted.
Mining Rights held by the Company cover the areas required by the
Company for such purposes.
cc. Mining
Agreements. Any and all of the
agreements and other documents and instruments pursuant to which
the Company holds the Material Properties are valid and subsisting
agreements, documents or instruments in full force and effect,
enforceable in accordance with the terms thereof, the Company is
not in default of any of the material provisions of any such
agreements, documents or
instruments, nor to the knowledge of the Company has any such
default been alleged, except in each case as would not reasonably
be expected to have a Material Adverse Effect on the Company, and
the Material Properties are not subject to any right of first
refusal or similar purchase or acquisition
rights.
dd. Assessments
on Mining Claims. All claim
maintenance fees required to be paid in relation to the material
unpatented mining claims and millsites of the Company and the
Subsidiaries in order to maintain their respective interests
therein, if any, have been paid to date and the Company and each of
the Subsidiaries has complied in all material respects with all
applicable governmental laws, regulations and policies in this
regard as well as with regard to legal, contractual obligations to
third parties in this regard, except in respect of unpatented
mining claims and millsites that the Company or any of the
Subsidiaries intends to abandon or relinquish and except for any
non-compliance which would not either individually or in the
aggregate have a Material Adverse Effect.
ee. Mining
Operations. All mining
operations on the properties of the Company and the Subsidiaries
have been conducted in all material respects in accordance with
good mining and engineering practices and all applicable
workers’ compensation and health and safety and workplace
laws, regulations and policies have been duly complied with.
ff. Intellectual Property. The
Company and the Subsidiaries own, possess, license or have other
adequate enforceable rights to use all patents, patent
applications, trademarks (both registered and unregistered),
service marks, trade names, trademark registrations, service xxxx
registrations, copyrights, licenses and know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures) (collectively, the
“Intellectual
Property”), necessary for the conduct of their
respective businesses as conducted as of the date hereof, except to
the extent that the failure to own, possess, license or have other
adequate rights to use such Intellectual Property would not,
individually or in the aggregate, have a Material Adverse Effect;
there is no pending or, to the Company’s Knowledge,
threatened action, suit, proceeding or claim by others that the
Company and its Subsidiaries infringe or otherwise conflict with
asserted Intellectual Property rights of others, which infringement
or conflict, if the subject of an unfavorable decision, would
result in a Material Adverse Effect; there are no pending, or to
the Company’s Knowledge, threatened judicial proceedings or
interference proceedings against the Company or its Subsidiaries
challenging the Company’s or any of its Subsidiary’s
rights in or to or the validity of the scope of any of the
Company’s or any Subsidiary’s patents, patent
applications or proprietary information; no other entity or
individual has any right or claim in any patents, patent
applications or any patent to be issued therefrom that are owned or
purported to be owned by the Company or any of its Subsidiaries by
virtue of any contract, license or other agreement entered into
between such entity or individual and the Company or any Subsidiary
or by any non-contractual obligation, other than by written
licenses granted by the Company or any Subsidiary, except as would
not, individually or in the aggregate, have a Material Adverse
Effect; there is no pending or, to the Company’s Knowledge,
threatened action, suit, proceeding or claim by others challenging
the Company’s and its Subsidiaries’ rights in or to any
Intellectual Property owned, licensed or optioned by the Company or
any Subsidiary which claim, if the subject of an unfavorable
decision would result in a Material Adverse Effect.
gg. Environmental Laws. Except as
set forth in the Registration Statement or the Prospectus, the
Company and the Subsidiaries (i) are in compliance with any and all
applicable federal, state, local and foreign laws, rules,
regulations, decisions and orders relating to the protection of
human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (collectively,
“Environmental
Laws”); (ii) have received and are in compliance
with all permits, licenses or other approvals required of them
under applicable Environmental Laws to conduct their respective
businesses as described in the Registration Statement and the
Prospectus; and (iii) have not received notice of any actual or
potential liability for the investigation or remediation of any
disposal or release of hazardous or toxic substances or wastes,
pollutants or contaminants, except, in the case of any of clauses
(i), (ii) or (iii) above, for any such failure to comply or failure
to receive required permits, licenses, other approvals or liability
as would not, individually or in the aggregate, have a Material
Adverse Effect.
hh. Disclosure Controls. The
Company maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions
are executed in accordance with management’s general or
specific authorizations; (ii) transactions are recorded as
necessary to permit preparation of financial statements in
conformity with GAAP and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with
management’s general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences. The Company is not aware of any
material weaknesses in its internal control over financial
reporting (other than as set forth in the Registration Statement or
the Prospectus). Since the date of the latest audited financial
statements of the Company included in the Prospectus, 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 (other than as set forth in the
Registration Statement or the Prospectus). The Company has
established disclosure controls and procedures (as defined in
Exchange Act Rules 13a-15 and 15d-15) that comply with the
requirements of the Exchange Act. The Company’s certifying
officers have evaluated the effectiveness of the Company’s
controls and procedures as of a date within 90 days prior to the
filing date of the Form 10-K for the fiscal year most recently
ended (such date, the “Evaluation Date”). The
Company presented in its Form 10-K for the fiscal year most
recently ended the conclusions of the certifying officers about the
effectiveness of the disclosure controls and procedures based on
their evaluations as of the most recent Evaluation Date, and the
“disclosure controls and procedures” are
effective.
ii. Xxxxxxxx-Xxxxx Act. There is
and has been no failure on the part of the Company or, to the
Knowledge of the Company, any of the Company’s directors or
officers, in their capacities as such, to comply in all material
respects with any applicable provisions of the Xxxxxxxx-Xxxxx Act
and the rules and regulations promulgated thereunder. Each of the
principal executive officer and the principal financial officer of
the Company (or each former principal executive officer of the
Company and each former principal financial officer of the Company
as applicable) has made all certifications required by Sections 302
and 906 of the Xxxxxxxx-Xxxxx Act with respect to all reports,
schedules, forms, statements and other documents required to be
filed by it or furnished by it to the Commission during the past 12
months. For purposes of the preceding sentence, “principal
executive officer” and “principal financial
officer” shall have the meanings given to such terms in the
Exchange Act Rules 13a-15 and 15d-15.
jj. Finder’s Fees. Neither
the Company nor any Subsidiary has incurred any liability for any
finder’s fees, brokerage commissions or similar payments in
connection with the transactions herein contemplated, except as may
otherwise exist with respect to the Agents pursuant to this
Agreement.
kk. Labor Disputes. No labor
disturbance by or dispute with employees of the Company or any
Subsidiary exists or, to the Knowledge of the Company, is
threatened which would result in a Material Adverse
Effect.
ll. Investment Company Act. Neither
the Company nor any Subsidiary is or, after giving effect to the
offering and sale of the Placement Shares, will be required to
register as an “investment company” or an entity
“controlled” by an “investment company,” as
such terms are defined in the Investment Company Act of 1940, as
amended (the “Investment Company
Act”).
mm. Operations. The operations of
the Company and the Subsidiaries are and have been conducted at all
times in compliance with applicable financial record keeping and
reporting requirements of the Currency and Foreign Transactions
Reporting Act of 1970, as amended, the money laundering statutes of
all jurisdictions to which the Company or the Subsidiaries are
subject, the rules and regulations thereunder and any related or
similar rules, regulations or guidelines, issued, administered or
enforced by any governmental agency having jurisdiction over the
Company (collectively, the “Money Laundering Laws”),
except where the failure to be in such compliance would not result
in a Material Adverse Effect; 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 Knowledge of the
Company, threatened.
nn. Off-Balance Sheet Arrangements.
There are no transactions, arrangements and other relationships
between and/or among the Company, and/or, to the Knowledge of the
Company, any of its affiliates and any unconsolidated entity,
including, but not limited to, any structured finance, special
purpose or limited purpose entity (each, an “Off Balance Sheet
Transaction”) that would affect materially the
Company’s liquidity or the availability of or requirements
for its capital resources, including those Off Balance Sheet
Transactions described in the Commission’s Statement about
Management’s Discussion and Analysis of Financial Conditions
and Results of Operations (Release Nos. 33-8056; 34-45321; FR-61),
required to be described in the Registration Statement or the
Prospectus which have not been described as required.
oo. Underwriter Agreements. The
Company is not a party to any agreement with an agent or
underwriter for any other “at-the-market” or continuous
equity transaction.
pp. ERISA. To the Knowledge of the
Company, (i) each material employee benefit plan, within the
meaning of Section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended (“ERISA”) that is
maintained, administered or contributed to by the Company or any of
its affiliates for employees or former employees of the Company and
the Subsidiaries has been maintained in material compliance with
its terms and the requirements of any applicable statutes, orders,
rules and regulations, including but not limited to ERISA and the
Internal Revenue Code of 1986, as amended (the “Code”); (ii) no
prohibited transaction, within the meaning of Section 406 of ERISA
or Section 4975 of the Code, has occurred which would result in a
material liability to the Company with respect to any such plan
excluding transactions effected pursuant to a statutory or
administrative exemption; and (iii) for each such plan that is
subject to the funding rules of Section 412 of the Code or Section
302 of ERISA, no “accumulated funding deficiency” as
defined in Section 412 of the Code has been incurred, whether or
not waived, and the fair market value of the assets of each such
plan (excluding for these purposes accrued but unpaid
contributions) equals or exceeds the present value of all benefits
accrued under such plan determined using reasonable actuarial
assumptions, other than, in the case of (i), (ii) and (iii) above,
as would not have a Material Adverse Effect.
qq. Forward-Looking Statements. No
forward-looking statement (within the meaning of Section 27A of the
Securities Act and Section 21E of the Exchange Act)
(a “Forward-Looking
Statement”) contained in the Registration Statement
and the Prospectus has been made or reaffirmed without a reasonable
basis or has been disclosed other than in good faith.
rr. Margin Rules. Neither the
issuance, sale and delivery of the Placement Shares nor the
application of the proceeds thereof by the Company as described in
the Registration Statement and the Prospectus will violate
Regulation T, U or X of the Board of Governors of the Federal
Reserve System.
ss. Insurance. The Company and the
Subsidiaries carry, or are covered by, insurance in such amounts
and covering such risks as the Company and the Subsidiaries
reasonably believe are adequate for the conduct of their
business.
tt. No Improper Practices. (i)
Neither the Company nor, to the Company’s Knowledge, the
Subsidiaries, nor to the Company’s Knowledge, any of their
respective executive officers has, in the past five years, made any
unlawful contributions to any candidate for any political office
(or failed fully to disclose any contribution in violation of law)
or made any contribution or other payment to any official of, or
candidate for, any federal, state, municipal, or foreign office or
other person charged with similar public or quasi-public duty in
violation of any law or of the character required to be disclosed
in the Prospectus; (ii) no relationship, direct or indirect, exists
between or among the Company or, to the Company’s Knowledge,
the Subsidiaries or any affiliate of any of them, on the one hand,
and the directors, officers and stockholders of the Company or, to
the Company’s Knowledge, the Subsidiaries, on the other hand,
that is required by the Securities Act to be described in the
Registration Statement and the Prospectus that is not so described;
(iii) no relationship, direct or indirect, exists between or among
the Company or the Subsidiaries or any affiliate of them, on the
one hand, and the directors, officers, stockholders or directors of
the Company or, to the Company’s Knowledge, the Subsidiaries,
on the other hand, that is required by the rules of FINRA to be
described in the Registration Statement and the Prospectus that is
not so described; (iv) except as described in the Registration
Statement and Prospectus, there are no material outstanding loans
or advances or material guarantees of indebtedness by the Company
or, to the Company’s Knowledge, the Subsidiaries to or for
the benefit of any of their respective officers or directors or any
of the members of the families of any of them; and (v) the Company
has not offered, or caused any placement agent to offer, Common
Shares to any person with the intent to influence unlawfully (A) a
customer or supplier of the Company or the Subsidiaries to alter
the customer’s or supplier’s level or type of business
with the Company or the Subsidiaries or (B) a trade journalist or
publication to write or publish favorable information about the
Company or the Subsidiaries or any of their respective products or
services, and, (vi) neither the Company nor the Subsidiaries nor,
to the Company’s Knowledge, any employee or agent of the
Company or the Subsidiaries has made any payment of funds of the
Company or the Subsidiaries or received or retained any funds in
violation of any law, rule or regulation (including, without
limitation, the Foreign Corrupt Practices Act of 1977), which
payment, receipt or retention of funds is of a character required
to be disclosed in the Registration Statement or the
Prospectus.
uu. Status Under the Securities
Act. The Company was not and is not an ineligible issuer as
defined in Rule 405 under the Securities Act at the times specified
in Rules 164 and 433 under the Securities Act in connection
with the offering of the Placement Shares.
vv. No Misstatement or Omission in an
Issuer Free Writing Prospectus. Each Issuer Free Writing
Prospectus, as of its issue date and as of each Applicable Time (as
defined in Section
25 below), did not, does not and will not, through the
completion of the Placement or Placements for which such Issuer
Free Writing Prospectus is issued, include any information that
conflicted, conflicts or will conflict with the information
contained in the Registration Statement or the Prospectus,
including any incorporated document deemed to be a part thereof
that has not been superseded or modified. The foregoing sentence
does not apply to statements in or omissions from any Issuer Free
Writing Prospectus based upon and in conformity with written
information furnished to the Company by the Agents specifically for
use therein.
ww. No Conflicts. Neither the
execution of this Agreement, nor the issuance, offering or sale of
the Placement Shares, nor the consummation of any of the
transactions contemplated herein and therein, nor the compliance by
the Company with the terms and provisions hereof and thereof will
conflict with, or will result in a breach of, any of the terms and
provisions of, or has constituted or will constitute a default
under, or has resulted in or will result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company pursuant to the terms of any contract or
other agreement to which the Company may be bound or to which any
of the property or assets of the Company is subject, except
(i) such conflicts, breaches or defaults as may have been
waived and (ii) such conflicts, breaches and defaults that would
not have a Material Adverse Effect; nor will such action result (x)
in any violation of the provisions of the organizational or
governing documents of the Company, or (y) in any material
violation of the provisions of any statute or any order, rule or
regulation applicable to the Company or of any court or of any
federal, state or other regulatory authority or other government
body having jurisdiction over the Company, except where such
violation would not have a Material Adverse Effect.
xx. OFAC.
(i) Neither the Company
nor any Subsidiary (collectively, the “Entity”) nor, to the
Company’s Knowledge, any director, officer, employee, agent,
affiliate or representative of the Entity, is a government,
individual, or entity (in this paragraph (xx), “Person”) that is, or is
owned or controlled by a Person that is:
(a) currently the
subject of any sanctions administered or enforced by the U.S.
Department of Treasury’s Office of Foreign Assets Control
(“OFAC”), the United
Nations Security Council (“UNSC”), the European
Union (“EU”), Her Majesty’s
Treasury (“HMT”), or other relevant
sanctions authority (collectively, “Sanctions”),
nor
(b) located, organized
or resident in a country or territory that is the subject of
Sanctions.
(ii) The
Entity will not, directly or indirectly, knowingly use the proceeds
of the offering, or lend, contribute or otherwise make available
such proceeds to any subsidiary, joint venture partner or other
Person:
(a) to fund or
facilitate any activities or business of or with any Person or in
any country or territory that, at the time of such funding or
facilitation, is the subject of Sanctions; or
(b) in any other manner
that will result in a violation of Sanctions by any Person
(including any Person participating in the offering, whether as
underwriter, advisor, investor or otherwise).
(iii) The
Entity represents and covenants that, except as detailed in the
Registration Statement and the Prospectus, for the past five (5)
years, it has not knowingly engaged in and is not now knowingly
engaged in any dealing or transactions with any Person, or in any
country or territory, that at the time of the dealing or
transaction is or was the subject of Sanctions.
yy. Stock Transfer Taxes. On each
Settlement Date, all material stock transfer or other taxes (other
than income taxes) which are required to be paid in connection with
the sale and transfer of the Placement Shares to be sold hereunder
will be, or will have been, fully paid or provided for by the
Company and all laws imposing such taxes will be or will have been
fully complied with by the Company in all material
respects.
zz. IT Systems. (i)(x) To the
knowledge of Company, there has been no security breach or other
compromise of any Company’s information technology and
computer systems, networks, hardware, software, data (including the
data of their respective customers, employees, suppliers, vendors
and any third party data maintained by or on behalf of them),
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 their IT Systems and
Data; (ii) the Company is presently in material 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.
Any
certificate signed by an officer of the Company and delivered to
the Agents or to counsel for the Agents pursuant to or in
connection with this Agreement shall be deemed to be a
representation and warranty by the Company, as applicable, to the
Agents as to the matters set forth therein.
7. Covenants of the Company. The
Company covenants and agrees with the Agents that:
a. Registration Statement
Amendments. After the date of this Agreement and during any
period in which a prospectus relating to any Placement Shares is
required to be delivered by the Agents under the Securities Act
(including in circumstances where such requirement may be satisfied
pursuant to Rule 172 under the Securities Act) (the
“Prospectus Delivery
Period”) (i) the Company will notify the Agents
promptly of the time when any subsequent amendment to the
Registration Statement, other than documents incorporated by
reference or amendments not related to any Placement, has been
filed with the Commission and/or has become effective or any
subsequent supplement to the Prospectus has been filed and of any
request by the Commission for any amendment or supplement to the
Registration Statement or Prospectus related to the Placement or
for additional information related to the Placement, (ii) the
Company will prepare and file with the Commission, promptly upon
the Agents’ request, any amendments or supplements to the
Registration Statement or Prospectus that, upon the advice of the
Company’s legal counsel, may be necessary or advisable in
connection with the distribution of the Placement Shares by the
Agents (provided, however,
that the failure of the Agents to make such request shall not
relieve the Company of any obligation or liability hereunder, or
affect the Agents’ right to rely on the representations and
warranties made by the Company in this Agreement and provided,
further, that the only remedy the Agents shall have with respect to
the failure to make such filing shall be to cease making sales
under this Agreement until such amendment or supplement is filed);
(iii) the Company will not file any amendment or supplement to the
Registration Statement or Prospectus relating to the Placement
Shares or a security convertible into the Placement Shares (other
than an Incorporated Document) unless a copy thereof has been
submitted to the Agents within a reasonable period of time before
the filing and the Agents have not reasonably objected thereto
(provided, however, that
(A) the failure of the Agents to make such objection shall not
relieve the Company of any obligation or liability hereunder, or
affect the Agents’ right to rely on the representations and
warranties made by the Company in this Agreement and (B) the
Company has no obligation to provide the Agents any advance copy of
such filing or to provide the Agents an opportunity to object to
such filing if the filing does not name the Agents or does not
relate to the transaction herein provided; and provided, further,
that the only remedy the Agents shall have with respect to the
failure by the Company to obtain such consent shall be to cease
making sales under this Agreement) and 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 into the
Registration Statement or Prospectus, except for those documents
available via XXXXX; and (iv) the Company will cause each amendment
or supplement to the Prospectus to be filed with the Commission as
required pursuant to the applicable paragraph of Rule 424(b) of the
Securities Act 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
(the determination to file or not file any amendment or supplement
with the Commission under this Section 7(a), based on the
Company’s reasonable opinion or reasonable objections, shall
be made exclusively by the Company).
b. Notice of Commission Stop
Orders. The Company will advise the Agents, promptly after
it receives notice or obtains Knowledge thereof, of the issuance or
threatened issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement, of the suspension
of the qualification of the Placement Shares for offering or sale
in any jurisdiction, or of the initiation or threatening of any
proceeding for any such purpose; and it will use its commercially
reasonable efforts to prevent the issuance of any stop order or to
obtain its withdrawal if such a stop order should be issued. The
Company will advise the Agents promptly after it receives any
request by the Commission for any amendments to the Registration
Statement or any amendment or supplements to the Prospectus or any
Issuer Free Writing Prospectus or for additional information
related to the offering of the Placement Shares or for additional
information related to the Registration Statement, the Prospectus
or any Issuer Free Writing Prospectus.
c. Delivery of Prospectus; Subsequent
Changes. During the Prospectus Delivery Period, the Company
will comply with all requirements imposed upon it by the Securities
Act, as from time to time in force, and to file on or before their
respective due dates all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14, 15(d) or any
other provision of or under the Exchange Act. If the Company has
omitted any information from the Registration Statement pursuant to
Rule 430A under the Securities Act, it will use its commercially
reasonable efforts to comply with the provisions of and make all
requisite filings with the Commission pursuant to said Rule 430A
and to notify the Agents promptly of all such filings. If during
the Prospectus Delivery Period any event occurs as a result of
which the Prospectus as then amended or supplemented would include
an untrue statement of a 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
Prospectus Delivery Period it is necessary to amend or supplement
the Registration Statement or Prospectus to comply with the
Securities Act, the Company will promptly notify the Designated
Agent to suspend the offering of Placement Shares during such
period and the Company will promptly amend or supplement the
Registration Statement or Prospectus (at the expense of the
Company) so as to correct such statement or omission or effect such
compliance; provided,
however, that the Company may delay the filing of any
amendment or supplement, if in the judgment of the Company, it is
in the best interest of the Company.
d. Listing of Placement Shares.
During the Prospectus Delivery Period, the Company will use its
commercially reasonable efforts to cause the Placement Shares to be
listed on the Exchange and to qualify the Placement Shares for sale
under the securities laws of such jurisdictions in the United
States as the Agents reasonably designates and to continue such
qualifications in effect so long as required for the distribution
of the Placement Shares; provided,
however, that the Company shall not be required in
connection therewith to qualify as a foreign corporation or dealer
in securities, file a general consent to service of process, or
subject itself to taxation in any jurisdiction if it is not
otherwise so subject.
e. Delivery of Registration Statement and
Prospectus. The Company will furnish to the Agents and their
counsel (at the reasonable expense of the Company) copies of the
Registration Statement, the Prospectus (including all documents
incorporated by reference therein) and all amendments and
supplements to the Registration Statement or Prospectus that are
filed with the Commission during the Prospectus Delivery Period
(including all documents filed with the Commission 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 and, at the
Agents’ request, will also furnish copies of the Prospectus
to each exchange or market on which sales of the Placement Shares
may be made; provided,
however, that the Company shall not be required to furnish
any document (other than the Prospectus) to the Agents to the
extent such document is available on XXXXX.
f. Earnings Statement. The Company
will make generally available to its security holders as soon as
practicable, but in any event not later than 15 months after the
end of the Company’s current fiscal quarter, an earnings
statement covering a 12-month period that satisfies the provisions
of Section 11(a) and Rule 158 of the Securities Act.
g. Use of Proceeds. The Company
will use the Net Proceeds as described in the Prospectus in the
section entitled “Use of Proceeds.”
h. Notice of Other Sales. Without
the prior written consent of the Agents, the Company will not,
directly or indirectly, offer to sell, sell, contract to sell,
grant any option to sell or otherwise dispose of any Common Shares
(other than the Placement Shares offered pursuant to this
Agreement) or securities convertible into or exchangeable for
Common Shares, warrants or any rights to purchase or acquire,
Common Shares during the period beginning on the date on which any
Placement Notice is delivered to the Agents hereunder and ending on
the third (3rd) Trading Day immediately following the final
Settlement Date with respect to Placement Shares sold pursuant to
such Placement Notice (or, if the Placement Notice has been
terminated or suspended prior to the sale of all Placement Shares
covered by a Placement Notice, the date of such suspension or
termination); and will not directly or indirectly in any other
“at the market” or continuous equity transaction offer
to sell, sell, contract to sell, grant any option to sell or
otherwise dispose of any Common Shares (other than the Placement
Shares offered pursuant to this Agreement) or securities
convertible into or exchangeable for Common Shares, warrants or any
rights to purchase or acquire, Common Shares prior to the
termination of this Agreement; provided, however, that such
restrictions will not apply in connection with the Company’s
issuance or sale of (i) Common Shares, options to purchase Common
Shares, RSUs or Common Shares issuable upon the exercise of options
or redemption of RSUs, pursuant to any stock option, RSU Plan or
benefits plan, stock ownership plan or dividend reinvestment plan
(but not Common Shares subject to a waiver to exceed plan limits in
its dividend reinvestment plan) of the Company whether now in
effect or hereafter implemented; (ii) Common Shares issuable upon
conversion of securities or the exercise of warrants, options or
other rights in effect or outstanding, and disclosed in filings by
the Company available on XXXXX or otherwise in writing to the
Agents, (iii) Common Shares, or securities convertible into or
exercisable for Common Shares, offered and sold in a privately
negotiated transaction to vendors, customers, strategic partners or
potential strategic partners or other investors conducted in a
manner so as not to be integrated with the offering of Common
Shares hereby and (iv) Common Shares in connection with any
acquisition, strategic investment or other similar transaction
(including any joint venture, strategic alliance or
partnership).
i. Change of Circumstances. The
Company will, at any time during the pendency of a Placement Notice
advise the Agents promptly after it shall have 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 required to be provided to the Agents
pursuant to this Agreement.
j. Due Diligence Cooperation.
During the term of this Agreement, the Company will cooperate with
any reasonable due diligence review conducted by the Agents or
their respective representatives in connection with the
transactions contemplated hereby, including, without limitation,
providing information and making available documents and senior
corporate officers, during regular business hours and at the
Company’s principal offices, as the Agents may reasonably
request.
k. Required Filings Relating to Placement
of Placement Shares. The Company agrees that on such dates
as the Securities Act shall require, the Company will (i) file a
prospectus supplement with the Commission under the applicable
paragraph of Rule 424(b) under the Securities Act (each and every
date a filing under Rule 424(b) is made, a “Filing Date”), which
prospectus supplement will set forth, within the relevant period,
the amount of Placement Shares sold through the Agents, the Net
Proceeds to the Company and the compensation payable by the Company
to the Agents with respect to such Placement Shares, and (ii)
deliver such number of copies of each such prospectus supplement to
each exchange or market on which such sales were effected as may be
required by the rules or regulations of such exchange or
market.
l. Representation Dates;
Certificate. Each time during the term of this Agreement
that the Company:
(i) amends or
supplements (other than a prospectus supplement relating solely to
an offering of securities other than the Placement Shares) the
Registration Statement or the Prospectus relating to the Placement
Shares by means of a post-effective amendment, sticker, or
supplement but not by means of incorporation of documents by
reference into the Registration Statement or the Prospectus
relating to the Placement Shares;
(ii) files
an annual report on Form 10-K under the Exchange Act (including any
Form 10-K/A containing amended audited financial information or a
material amendment to the previously filed Form 10-K);
(iii) files
its quarterly reports on Form 10-Q under the Exchange Act;
or
(iv) files
a current report on Form 8-K containing amended financial
information (other than information “furnished”
pursuant to Items 2.02 or 7.01 of Form 8-K or to provide disclosure
pursuant to Item 8.01 of Form 8-K relating to the reclassification
of certain properties as discontinued operations in accordance with
Statement of Financial Accounting Standards No. 144) under the
Exchange Act;
(Each
date of filing of one or more of the documents referred to in
clauses (i) through (iv) shall be a “Representation
Date.”)
the
Company shall furnish the Agents (but in the case of clause (iv)
above only if any Agent reasonably determines that the information
contained in such Form 8-K is material) with a certificate, in the
form attached hereto as Exhibit 7(1). The requirement
to provide a certificate under this Section 7(1) shall be waived
for any Representation Date occurring at a time at which no
Placement Notice is pending, which waiver shall continue until the
earlier to occur of the date the Company delivers a Placement
Notice hereunder (which for such calendar quarter shall be
considered a Representation Date) and the next occurring
Representation Date on which the Company files its annual report on
Form 10-K. Notwithstanding the foregoing, (i) upon the delivery of
the first Placement Notice hereunder and (ii) if the Company
subsequently decides to sell Placement Shares following a
Representation Date when the Company relied on such waiver and did
not provide the Agents with a certificate under this Section 7(1), then before the
Agents sells any Placement Shares, the Company shall provide the
Agents with a certificate, in the form attached hereto as
Exhibit 7(1), dated
the date of the Placement Notice.
m. Legal Opinion. On or prior to
the date of the first Placement Notice given hereunder the Company
shall cause to be furnished to the Agents a written opinion and a
negative assurance letter of Xxxxx Xxxxxx & Xxxxxx LLP
(“DGS”)
and a written opinion of Fasken Xxxxxxxxx DuMoulin LLP
(“FMD”
and together with DGS, the “Company Counsel”), or
other counsel reasonably satisfactory to the Agents, each in form
and substance reasonably satisfactory to the Agents. Thereafter,
within five (5) Trading Days of each Representation Date with
respect to which the Company is obligated to deliver a certificate
in the form attached hereto as Exhibit 7(l) for which no
waiver is applicable, and not more than once per calendar quarter,
the Company shall cause to be furnished to the Agents
a negative assurance letter of DGS in form and substance
reasonably satisfactory to the Agents; provided that, in lieu of
such negative assurance for subsequent periodic filings under the
Exchange Act, counsel may furnish the Agents with a letter
(a “Reliance
Letter”) to the effect that the Agents may rely on the
negative assurance letter previously delivered under this
Section 7(m) to the
same extent as if it were dated the date of such letter (except
that statements in such prior letter shall be deemed to relate to
the Registration Statement and the Prospectus as amended or
supplemented as of the date of the Reliance Letter).
n. Comfort Letter. On or prior to
the date of the first Placement Notice given hereunder and within
five (5) Trading Days after each subsequent Representation Date,
other than pursuant to Section 7(l)(iii), the Company
shall cause its independent accountants to furnish the Agents
letters (the “Comfort Letters”), dated
the date the Comfort Letter is delivered, which shall meet the
requirements set forth in this Section 7(n). The Comfort
Letter from the Company’s independent accountants shall be in
a form and substance reasonably satisfactory to the Agents, (i)
confirming that they are an independent public accounting firm
within the meaning of the Securities Act and the PCAOB, (ii)
stating, as of such date, the conclusions and findings of such firm
with respect to the financial information and other matters
ordinarily covered by accountants’ “comfort
letters” to underwriters in connection with registered public
offerings (the first such letter, the “Initial Comfort Letter”)
and (iii) updating the Initial Comfort Letter with any
information that 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 Prospectus, as amended
and supplemented to the date of such letter.
o. Reserved.
p. Market Activities. The Company
will not, directly or indirectly, (i) take any action designed to
cause or result in, or that constitutes or would constitute, the
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of Common Shares or (ii)
sell, bid for, or purchase Common Shares in violation of Regulation
M, or pay anyone any compensation for soliciting purchases of the
Placement Shares other than the Agents.
q. Investment Company Act. The
Company will conduct its affairs in such a manner so as to
reasonably ensure that neither it nor the Subsidiaries will be or
become, at any time prior to the termination of this Agreement, an
“investment company,” as such term is defined in the
Investment Company Act.
r. No Offer to Sell. Other than an
Issuer Free Writing Prospectus approved in advance by the Company
and the Agents in their capacity as agents hereunder pursuant to
Section 23, neither
the Agents nor the Company (including its agents and
representatives, other than the Agents in their capacity as such)
will make, use, prepare, authorize, approve or refer to any written
communication (as defined in Rule 405), required to be filed with
the Commission, that constitutes an offer to sell or solicitation
of an offer to buy Placement Shares hereunder.
x. Xxxxxxxx-Xxxxx Act. The Company
will maintain and keep accurate books and records reflecting its
assets and maintain internal accounting controls in a manner
designed to provide reasonable assurance regarding the reliability
of financial reporting and the preparation of financial statements
for external purposes in accordance with GAAP and including those
policies and procedures that (i) pertain to the maintenance of
records that in reasonable detail accurately and fairly reflect the
transactions and dispositions of the assets of the Company, (ii)
provide reasonable assurance that transactions are recorded as
necessary to permit the preparation of the Company’s
consolidated financial statements in accordance with GAAP, (iii)
that receipts and expenditures of the Company are being made only
in accordance with management’s and the Company’s
directors’ authorization, and (iv) provide reasonable
assurance regarding prevention or timely detection of unauthorized
acquisition, use or disposition of the Company’s assets that
could have a material effect on its financial statements. The
Company will maintain disclosure controls and procedures that
comply with the requirements of the Exchange Act.
8. Representations and Covenants of the
Agent. Each of the Agents represents and warrants that it is
duly registered as a broker-dealer under FINRA, the Exchange Act
and the applicable statutes and regulations of each state in which
the Placement Shares will be offered and sold, except such states
in which such Agent is exempt from registration or such
registration is not otherwise required. Each Agent shall continue,
for the term of this Agreement, to be duly registered as a
broker-dealer under FINRA, the Exchange Act and the applicable
statutes and regulations of each state in which the Placement
Shares will be offered and sold, except such states in which it is
exempt from registration or such registration is not otherwise
required, during the term of this Agreement. Each Agent shall
comply with all applicable law and regulations, including but not
limited to Regulation M, in connection with the transactions
contemplated by this Agreement, including the issuance and sale
through such Agent of the Placement Shares.
9. Payment of Expenses. The
Company will pay all expenses incident to the performance of its
obligations under this Agreement, including (i) the preparation,
filing, including any fees required by the Commission, and printing
of the Registration Statement (including financial statements and
exhibits) as originally filed and of each amendment and supplement
thereto and each Free Writing Prospectus, in such number as the
Agents shall deem reasonably necessary, (ii) the printing and
delivery to the Agents of this Agreement and such other documents
as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Placement Shares, (iii) the
preparation, issuance and delivery of the certificates, if any, for
the Placement Shares to the Agents, including any stock or other
transfer taxes and any capital duties, stamp duties or other duties
or taxes payable upon the sale, issuance or delivery of the
Placement Shares to the Agents, (iv) the fees and disbursements of
the counsel, accountants and other advisors to the Company, (v) the
reasonable and documented out-of-pocket fees and disbursements of
counsel to the Agents, including reasonable and documented
fees and disbursements of counsel to the Agents incurred in
connection with (a) entering into the transactions
contemplated by this Agreement in an amount not to exceed $50,000
in the aggregate, and (b) ongoing diligence arising from the
transactions contemplated by this Agreement in an amount not to
exceed $2,500 in the aggregate per calendar quarter; (vi) the fees
and expenses of the transfer agent and registrar for the Common
Shares, (vii) the filing fees incident to any review by FINRA of
the terms of the sale of the Placement Shares, and (viii) the fees
and expenses incurred in connection with the listing of the
Placement Shares on the Exchange.
10. Conditions to Agents’
Obligations. The obligations of the Agents hereunder with
respect to a Placement will be subject to the continuing accuracy
and completeness of the representations and warranties made by the
Company herein (other than those representations and warranties
made as of a specified date or time), to the due performance in all
material respects by the Company of its obligations hereunder, to
the completion by the Agents of a due diligence review satisfactory
to it in its reasonable judgment, and to the continuing reasonable
satisfaction (or waiver by the Agents in their sole discretion) of
the following additional conditions:
a. Registration Statement
Effective. The Registration Statement shall remain effective
and shall be available for the sale of all Placement Shares
contemplated to be issued by any Placement Notice.
b. 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 or any other federal or state governmental
authority during the period of effectiveness of the Registration
Statement, the response to which would require any post-effective
amendments or supplements to the Registration Statement or the
Prospectus; (ii) the issuance by the Commission or any other
federal or state governmental authority of any stop order
suspending the effectiveness of the Registration Statement or
receipt by the Company of notification of 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 Placement Shares for
sale in any jurisdiction or receipt by the Company of notification
of the initiation of, or a threat to initiate, any proceeding for
such purpose; or (iv) the occurrence of any event that makes any
material statement made in the Registration Statement or the
Prospectus or any material Incorporated Document untrue in any
material respect or that requires the making of any changes in the
Registration Statement, the Prospectus or any material Incorporated
Document so that, in the case of the Registration Statement, it
will not contain any materially 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, that
in the case of the Prospectus or any material Incorporated
Document, it will not contain any materially 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.
c. No Misstatement or Material
Omission. The Agents shall not have advised the Company that
the Registration Statement or Prospectus, or any amendment or
supplement thereto, contains an untrue statement of fact that in
the Agents’ reasonable opinion is material, or omits to state
a fact that in the Agents’ reasonable opinion is material and
is required to be stated therein or is necessary to make the
statements therein not misleading.
d. Material Changes. Except as
contemplated in the Prospectus, or disclosed in the Company’s
reports filed with the Commission, there shall not have been any
Material Adverse Effect, or any development that would cause a
Material Adverse Effect, or a downgrading in or withdrawal of the
rating assigned to any of the Company’s securities (other
than asset backed securities) by any “nationally recognized
statistical rating organization,” as such term is defined by
the Commission for purposes of Rule 436(g)(2) under the Securities
Act (a “Rating
Organization”), or a public announcement by any Rating
Organization that it has under surveillance or review its rating of
any of the Company’s securities (other than asset backed
securities), the effect of which, in the case of any such action by
a Rating Organization described above, in the reasonable judgment
of the Agents (without relieving the Company of any obligation or
liability it may otherwise have), is so material as to make it
impracticable or inadvisable to proceed with the offering of the
Placement Shares on the terms and in the manner contemplated in the
Prospectus.
e. Company Counsel Legal Opinion.
The Agents shall have received the opinion and negative assurance
letter of Company Counsel required to be delivered pursuant to
Section 7(m)
on or before the date on which such delivery of such opinion and
negative assurance letter are required pursuant to Section 7(m).
f. Agents Counsel Legal Opinion.
The Agents shall have received from Xxxxx Xxxxxx LLP, counsel for
the Agents, such opinion or opinions, on or before the date on
which the delivery of the Company Counsel legal opinion is required
pursuant to Section
7(m), with respect to such matters as the Agents may
reasonably require, and the Company shall have furnished to such
counsel such documents as they request for enabling them to pass
upon such matters.
g. Comfort Letter. The Agents
shall have received the Comfort Letter required to be delivered
pursuant Section
7(n) on or before the date on which such delivery of such
letter is required pursuant to Section 7(n).
h. Reserved.
i. Representation Certificate. The
Agents shall have received the certificate required to be delivered
pursuant to Section
7(1) on or before the date on which delivery of such
certificate is required pursuant to Section 7(1).
j. Reserved.
k. No Suspension. Trading in the
Common Shares shall not have been suspended on the Exchange and the
Common Shares shall not have been delisted from the
Exchange.
l. Other Materials. On each date
on which the Company is required to deliver a certificate pursuant
to Section 7(1),
the Company shall have furnished to the Agents such appropriate
further information, certificates and documents as the Agents may
reasonably request and which are usually and customarily furnished
by an issuer of securities in connection with a securities offering
of the type contemplated hereby. All such opinions, certificates,
letters and other documents will be in compliance with the
provisions hereof.
m. Securities Act Filings Made.
All filings with the Commission required by Rule 424 under the
Securities Act to have been filed prior to the issuance of any
Placement Notice hereunder shall have been made within the
applicable time period prescribed for such filing by Rule
424.
n. Approval for Listing. The
Placement Shares shall either have been approved for listing on the
Exchange and the TSX, subject only to notice of issuance, or the
Company shall have filed an application for listing of the
Placement Shares on the Exchange or the TSX at, or prior to, the
issuance of any Placement Notice.
o. No Termination Event. There
shall not have occurred any event that would permit the Agents to
terminate this Agreement pursuant to Section 13(a).
11. Indemnification and
Contribution.
(a) Company
Indemnification. The Company agrees to indemnify and hold
harmless the Agents, their respective partners, members, directors,
officers, employees and agents of the Agents and each person, if
any, who controls the Agents within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act as
follows:
(i) against any and all
loss, liability, claim, damage and expense whatsoever, as incurred,
joint or several, arising out of or based upon any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission
or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or arising out of any untrue statement or alleged
untrue statement of a material fact included in any related Issuer
Free Writing Prospectus or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom
of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever,
as incurred, joint or several, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 11(d) below) any
such settlement is effected with the written consent of the
Company, which consent shall not unreasonably be delayed or
withheld; and
(iii) against
any and all expense whatsoever, as incurred (including the
reasonable and documented out-of-pocket fees and disbursements of
counsel), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i)
or (ii) above,
provided, however, that this indemnity agreement shall not
apply to any loss, liability, claim, damage or expense to the
extent arising out of any untrue statement or omission or alleged
untrue statement or omission made solely in reliance upon and in
conformity with written information furnished to the Company by any
Agent expressly for use in the Registration Statement (or any
amendment thereto), or in any related Issuer Free Writing
Prospectus or the Prospectus (or any amendment or supplement
thereto).
(b) Indemnification
by the Agents. Each Agent, severally and not jointly, agrees
to indemnify and hold harmless the Company and its directors and
officers, and each person, if any, who (i) controls the Company
within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act or (ii) is controlled by or is under common
control with the Company against any and all loss, liability,
claim, damage and expense described in the indemnity contained in
Section 11(a), as
incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration
Statement (or any amendments thereto) or in any related Issuer Free
Writing Prospectus or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with
information relating to such Agent and furnished to the Company in
writing by such Agent expressly for use therein.
(c) Procedure.
Any party that proposes to assert the right to be indemnified under
this Section 11
will, 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 11, 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 will not relieve the indemnifying party from (i)
any liability that it might have to any indemnified party otherwise
than under this Section
11 and (ii) any liability that it may have to any
indemnified party under the foregoing provisions of this
Section 11 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 reasonably 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 (1) the
employment of counsel by the indemnified party has been authorized
in writing by the indemnifying party, (2) 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, (3) a conflict or potential conflict of
interest exists (based on advice of counsel to the indemnified
party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct
the defense of such action on behalf of the indemnified party) or
(4) 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 and documented out-of-pocket fees,
disbursements and other charges of counsel will 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 and documented out-of-pocket 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 reasonable and
documented out-of-pocket fees, disbursements and other charges will
be reimbursed by the indemnifying party promptly after the
indemnifying party receives a written invoice relating to fees,
disbursements and other charges in reasonable detail. An
indemnifying party will not, in any event, be liable for any
settlement of any action or claim effected without its written
consent. 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 11 (whether
or not any indemnified party is a party thereto), unless such
settlement, compromise or consent (1) includes an unconditional
release of each indemnified party from all liability arising out of
such litigation, investigation, proceeding or claim and (2) does
not include a statement as to or an admission of fault, culpability
or a failure to act by or on behalf of any indemnified
party.
(d) 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 11 is applicable in
accordance with its terms but for any reason is held to be
unavailable from the Company or an Agent, the Company and such
Agent will contribute to the total losses, claims, liabilities,
expenses and damages (including 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 Securities Act or the
Exchange 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 sale of
the Placement Shares (before deducting expenses) received by the
Company bear to the total compensation received by the Agents
(before deducting expenses) from the sale of Placement Shares on
behalf of the Company. 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 such Agent, on the other hand, with
respect to the statements or omission that 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, among other things, 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 such Agent, the intent of the parties and their relative
Knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and each Agent
agree that it would not be just and equitable if contributions
pursuant to this Section
11(d) were to be determined by pro rata allocation or by any
other method of allocation that does not take into account the
equitable considerations referred to herein. 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 Section 11(d) shall be deemed
to include, for the purpose of this Section 11(d), any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim
to the extent consistent with Section 11(c) hereof.
Notwithstanding the foregoing provisions of this Section 11(d), an Agent shall
not be required to contribute any amount in excess of the
commissions received by it under this Agreement and no person found
guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) will be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 11(d), any person who
controls a party to this Agreement within the meaning of the
Securities Act or the Exchange Act, and any officers, directors,
partners, employees or agents of an Agent, will have the same
rights to contribution as that party, and each officer who signed
the Registration Statement and director of the Company 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 Section
11(d), will notify any such party or parties from whom
contribution may be sought, but the omission to so notify will not
relieve that party or parties from whom contribution may be sought
from any other obligation it or they may have under this
Section 11(d)
except to the extent that the failure to so notify such other party
materially prejudiced the substantive rights or defenses of the
party from whom contribution is sought. Except for a settlement
entered into pursuant to the last sentence of Section 11(c) hereof, no party
will be liable for contribution with respect to any action or claim
settled without its written consent if such consent is required
pursuant to Section
11(c) hereof. The Agents’ respective obligations to
contribute pursuant to this Section 11(d) are several in proportion
to the respective number of Placement Shares they have sold
hereunder, and not joint.
12. Representations and Agreements to
Survive Delivery. The indemnity and contribution agreements
contained in Section
11 of this Agreement and all representations and warranties
of the Company herein or in certificates delivered pursuant hereto
shall survive, as of their respective dates, regardless of (i) any
investigation made by or on behalf of the Agents, any controlling
persons, or the Company (or any of their respective officers,
directors or controlling persons), (ii) delivery and acceptance of
the Placement Shares and payment therefor or (iii) any termination
of this Agreement.
13. Termination.
a. An Agent may
terminate this Agreement with respect to itself, by notice to the
Company, as hereinafter specified at any time (1) if there has
been, since the time of execution of this Agreement or since the
date as of which information is given in the Prospectus, any
Material Adverse Effect, or any development that would have a
Material Adverse Effect that, in the sole judgment of such Agent,
is material and adverse and makes it impractical or inadvisable to
market the Placement Shares or to enforce contracts for the sale of
the Placement Shares, (2) if there has occurred any material
adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or
escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or
international political, financial or economic conditions, in each
case the effect of which is such as to make it, in the judgment of
such Agent, impracticable or inadvisable to market the Placement
Shares or to enforce contracts for the sale of the Placement
Shares, (3) if trading in the Common Shares has been suspended or
limited by the Commission or the Exchange, or if trading generally
on the Exchange has been suspended or limited, or minimum prices
for trading have been fixed on the Exchange, (4) if any suspension
of trading of any securities of the Company on any exchange or in
the over-the-counter market shall have occurred and be continuing,
(5) if a major disruption of securities settlements or clearance
services in the United States shall have occurred and be
continuing, or (6) if a banking moratorium has been declared
by either U.S. Federal or New York authorities. Any such
termination shall be without liability of any party to any other
party except that the provisions of Section 9 (Payment of
Expenses), Section
11 (Indemnification and Contribution), Section 12 (Representations and
Agreements to Survive Delivery), Section 18 (Governing Law and
Time; Waiver of Jury Trial) and Section 19 (Consent to
Jurisdiction) hereof shall remain in full force and effect
notwithstanding such termination. If an Agent elects to terminate
this Agreement as provided in this Section 13(a), such Agent shall
provide the required notice as specified in Section 14
(Notices).
b. The Company shall
have the right, by giving ten (10) days’ notice as
hereinafter specified to terminate this Agreement in its sole
discretion at any time after the date of this Agreement. Any such
termination shall be without liability of any party to any other
party except that the provisions of Section 9 (Payment of
Expenses), Section
11 (Indemnification and Contribution), Section 12 (Representations and
Agreements to Survive Delivery), Section 18 (Governing Law and
Time; Waiver of Jury Trial) and Section 19 (Consent to
Jurisdiction) hereof shall remain in full force and effect
notwithstanding such termination.
c. Each Agent shall
have the right, by giving ten (10) days’ notice as
hereinafter specified to terminate this Agreement with respect to
itself in its sole discretion at any time after the date of this
Agreement. Any such termination shall be without liability of any
party to any other party except that the provisions of Section 9 (Payment of
Expenses), Section 11
(Indemnification and Contribution), Section 12 (Representations and
Agreements to Survive Delivery), Section 18 (Governing Law and
Time; Waiver of Jury Trial) and Section 19 (Consent to
Jurisdiction) hereof shall remain in full force and effect
notwithstanding such termination.
d. Unless earlier
terminated pursuant to this Section 13, this Agreement
shall automatically terminate upon the issuance and sale of all of
the Placement Shares through the Agents on the terms and subject to
the conditions set forth herein except that the provisions of
Section 9 (Payment
of Expenses), Section
11 (Indemnification and Contribution), Section 12 (Representations and
Agreements to Survive Delivery), Section 18 (Governing Law and
Time; Waiver of Jury Trial) and Section 19 (Consent to
Jurisdiction) hereof shall remain in full force and effect
notwithstanding such termination.
e. This Agreement
shall remain in full force and effect unless terminated pursuant to
Sections 13(a),
(b), (c), or (d) above or otherwise by
mutual agreement of the parties; provided, however, that any such
termination by mutual agreement shall in all cases be deemed to
provide that Section
9 (Payment of Expenses), Section 11 (Indemnification and
Contribution), Section
12 (Representations and Agreements to Survive Delivery),
Section 18
(Governing Law and Time; Waiver of Jury Trial) and Section 19 (Consent to
Jurisdiction) shall remain in full force and effect. Upon
termination of this Agreement, the Company shall not have any
liability to an Agent for any discount, commission or other
compensation with respect to any Placement Shares not otherwise
sold by an Agent under this Agreement. To the extent this Agreement
is terminated by one Agent or by the Company with respect to one
Agent pursuant to Sections 13(a) (b) or (c) above, this Agreement
shall terminate only with respect to such Agent and shall remain in
full force and effect with respect to the Company and the other
Agents, unless and until terminated pursuant to Sections 13(a),
(b), (c), or (d) above.
f. Any termination of
this Agreement shall be effective on the date specified in such
notice of termination; provided,
however, that such termination shall not be effective until
the close of business on the date of receipt of such notice by an
Agent or the Company, as the case may be. If such termination shall
occur prior to the Settlement Date for any sale of Placement
Shares, such Placement Shares shall settle in accordance with the
provisions of this Agreement.
14. Notices. All notices or other
communications required or permitted to be given by any party to
any other party pursuant to the terms of this Agreement shall be in
writing, unless otherwise specified, and if sent to the Agents,
shall be delivered to:
X.
Xxxxx Securities, Inc.
000
Xxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, XX 00000
Attention:
General Counsel
Telephone:
(000) 000-0000
Email:
xxxxxxx@xxxxxxxxx.xxx
And
Cantor
Xxxxxxxxxx & Co.
000
Xxxx Xxxxxx
Xxx
Xxxx, XX 00000
Attention:
General Counsel
Email:
#xxxxx-XXX@xxxxxx.xxx
Facsimile:
(000) 000-0000
with a
copy to:
Xxxxx
Xxxxxx LLP
0000
Xxxxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Xxxx X. Xxxxxxx
Telephone:
(000) 000-0000
Email:
xxxxxxxxx@xxxxxxxxxxx.xxx
and if
to the Company, shall be delivered to:
00000
Xxxx Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx
00000
Attention:
Xxxxx Xxxxxxxx
General
Counsel and Corporate Secretary
Telephone:
(000) 000-0000
Email:
xxxxx.xxxxxxxx@xx-xxxxxx.xxx
with a
copy to:
0000
Xxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx,
Xxxxxxxx 00000
Attention:
Xxxxx Xxxxxxxx
Telephone:
(000) 000-0000
Email:
xxxxx.xxxxxxxx@xxxxxx.xxx
and
with a copy to:
Fasken
Xxxxxxxxx DuMoulin LLP
Suite
1300
00
Xxxxxxxx Xxxxxx
Xxxxxx,
Xxxxxxx X0X 0X0
Xxxxxx
Attention:
Xxxxxxxx Xxxxxxxxxx
Facsimile:
613) 230-6423
Email:
xxxxxxxxxxx@xxxxxx.xxx
Each
party to this Agreement may change such address for notices by
sending to the parties to this Agreement written notice of a new
address for such purpose. Each such notice or other communication
shall be deemed given (i) when delivered personally, by email, or
by verifiable facsimile transmission on or before 4:30 p.m., New
York City time, on a Business Day or, if such day is not a Business
Day, on the next succeeding Business Day, (ii) on the next Business
Day after timely delivery to a nationally-recognized overnight
courier and (iii) on the Business Day actually received if
deposited in the U.S. mail (certified or registered mail, return
receipt requested, postage prepaid). For purposes of this
Agreement, “Business
Day” shall mean any day on which the Exchange and
commercial banks in the City of New York are open for
business.
An
electronic communication (“Electronic Notice”) shall
be deemed written notice for purposes of this Section 14 if sent to the
electronic mail address specified by the receiving party under
separate cover. Electronic Notice shall be deemed received at the
time the party sending Electronic Notice receives confirmation of
receipt by the receiving party. Any party receiving Electronic
Notice may request and shall be entitled to receive the notice on
paper, in a nonelectronic form (“Nonelectronic Notice”)
which shall be sent to the requesting party within ten (10) days of
receipt of the written request for Nonelectronic
Notice.
15. Successors and Assigns. This
Agreement shall inure to the benefit of and be binding upon the
Company and each Agent and their respective successors and the
affiliates, controlling persons, officers and directors referred to
in Section 11
hereof. References to any of the parties contained in this
Agreement shall be deemed to include the successors and permitted
assigns of such party. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the
parties hereto or their respective successors and permitted assigns
any rights, remedies, obligations or liabilities under or by reason
of this Agreement, except as expressly provided in this Agreement.
Neither the Company nor the Agents may assign its rights or
obligations under this Agreement without the prior written consent
of the other party.
16. Adjustments for Stock Splits.
The parties acknowledge and agree that all share-related numbers
contained in this Agreement shall be adjusted to take into account
any share consolidation, stock split, stock dividend, corporate
domestication or similar event effected with respect to the
Placement Shares.
17. Entire Agreement; Amendment;
Severability. This Agreement (including all schedules and
exhibits attached hereto and Placement Notices issued pursuant
hereto) together with the letter agreement entered into on or about
the date hereof between the Company and the Agent, constitutes the
entire agreement and supersedes all other prior and contemporaneous
agreements and undertakings, both written and oral, among the
parties hereto with regard to the subject matter hereof. Neither
this Agreement nor any term hereof may be amended except pursuant
to a written instrument executed by the Company and the Agents. In
the event that any one or more of the provisions contained herein,
or the application thereof in any circumstance, is held invalid,
illegal or unenforceable as written by a court of competent
jurisdiction, then such provision shall be given full force and
effect to the fullest possible extent that it is valid, legal and
enforceable, and the remainder of the terms and provisions herein
shall be construed as if such invalid, illegal or unenforceable
term or provision was not contained herein, but only to the extent
that giving effect to such provision and the remainder of the terms
and provisions hereof shall be in accordance with the intent of the
parties as reflected in this Agreement.
18. GOVERNING LAW AND TIME; WAIVER OF JURY
TRIAL. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
THE PRINCIPLES OF CONFLICTS OF LAWS. SPECIFIED TIMES OF DAY REFER
TO NEW YORK CITY TIME. THE COMPANY AND THE AGENTS EACH HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
19. CONSENT TO JURISDICTION. EACH
PARTY HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION
OF THE STATE AND FEDERAL COURTS SITTING IN THE CITY OF NEW YORK,
BOROUGH OF MANHATTAN, FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER
OR IN CONNECTION WITH ANY TRANSACTION CONTEMPLATED HEREBY, AND
HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT,
ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT
TO THE JURISDICTION OF ANY SUCH COURT, THAT SUCH SUIT, ACTION OR
PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM OR THAT THE VENUE OF
SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY HEREBY
IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO
PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY
MAILING A COPY THEREOF (CERTIFIED OR REGISTERED MAIL, RETURN
RECEIPT REQUESTED) TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR
NOTICES TO IT UNDER THIS AGREEMENT AND AGREES THAT SUCH SERVICE
SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE
THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY
WAY ANY RIGHT TO SERVE PROCESS IN ANY MANNER PERMITTED BY
LAW.
20. Use of Information. The Agents
may not use any information gained in connection with this
Agreement and the transactions contemplated by this Agreement,
including due diligence, to advise any party with respect to
transactions not expressly approved by the Company.
21. Counterparts. This Agreement
may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one
and the same instrument. Delivery of an executed Agreement by one
party to the other may be made by facsimile transmission or email
of a .pdf attachment.
22. Effect of Headings. The
section, Schedule and Exhibit headings herein are for convenience
only and shall not affect the construction hereof.
23. Permitted Free Writing
Prospectuses. The Company represents, warrants and agrees
that, unless it obtains the prior consent of each Agent, and each
Agent represents, warrants and agrees that, unless it obtains the
prior consent of the Company, it has not made and will not make any
offer relating to the Placement Shares that would constitute an
Issuer Free Writing Prospectus, or that would otherwise constitute
a “free writing prospectus,” as defined in Rule 405,
required to be filed with the Commission. Any such free writing
prospectus consented to by the Agents or by the Company, as the
case may be, is hereinafter referred to as a “Permitted Free
Writing Prospectus.” The Company represents and warrants that
it has treated and agrees that it will treat each Permitted Free
Writing Prospectus as an “issuer free writing
prospectus,” as defined in Rule 433, and has complied and
will comply with the requirements of Rule 433 applicable to any
Permitted Free Writing Prospectus, including timely filing with the
Commission where required, legending and record keeping. For the
purposes of clarity, the parties hereto agree that all free writing
prospectuses, if any, listed in Exhibit 23 hereto are Permitted
Free Writing Prospectuses.
24. Absence of Fiduciary
Relationship. The Company acknowledges and agrees
that:
a. Each Agent is
acting solely as agent in connection with the public offering of
the Placement Shares and in connection with each transaction
contemplated by this Agreement and the process leading to such
transactions, and no fiduciary or advisory relationship between the
Company or any of its respective affiliates, stockholders (or other
equity holders), creditors or employees or any other party, on the
one hand, and the Agents, on the other hand, has been or will be
created in respect of any of the transactions contemplated by this
Agreement, irrespective of whether or not any Agent has advised or
is advising the Company on other matters, and the Agents have no
obligation to the Company with respect to the transactions
contemplated by this Agreement except the obligations expressly set
forth in this Agreement;
b. it is capable of
evaluating and understanding, and understands and accepts, the
terms, risks and conditions of the transactions contemplated by
this Agreement;
c. the Agents have not
provided any legal, accounting, regulatory or tax advice with
respect to the transactions contemplated by this Agreement and it
has consulted its own legal, accounting, regulatory and tax
advisors to the extent it has deemed appropriate;
d. it is aware that
the Agents and their respective affiliates are engaged in a broad
range of transactions which may involve interests that differ from
those of the Company and the Agents have no obligation to disclose
such interests and transactions to the Company by virtue of any
fiduciary, advisory or agency relationship or otherwise;
and
e. it waives, to the
fullest extent permitted by law, any claims it may have against the
Agents for breach of fiduciary duty or alleged breach of fiduciary
duty in connection with the sale of Placement Shares under this
Agreement and agrees that the Agents shall not have any liability
(whether direct or indirect, in contract, tort or otherwise) to it
in respect of such a fiduciary duty claim or to any person
asserting a fiduciary duty claim on its behalf or in right of it or
the Company, employees or creditors of Company, other than in
respect of the Agents’ obligations under this Agreement and
to keep information provided by the Company to the Agents and their
counsel confidential to the extent not otherwise
publicly-available.
25. Definitions. As used in this
Agreement, the following terms have the respective meanings set
forth below:
“Applicable Time” means
(i) each Representation Date and (ii) the time of each sale of any
Placement Shares pursuant to this Agreement.
“Issuer Free Writing
Prospectus” means any “issuer free writing
prospectus,” as defined in Rule 433, relating to the
Placement Shares that (1) is required to be filed with the
Commission by the Company, (2) is a “road show” that is
a “written communication” within the meaning of Rule
433(d)(8)(i) whether or not required to be filed with the
Commission, or (3) is exempt from filing pursuant to Rule
433(d)(5)(i) because it contains a description of the Placement
Shares or of the offering that does not reflect the final terms, in
each case in the form filed or required to be filed with the
Commission or, if not required to be filed, in the form retained in
the Company’s records pursuant to Rule 433(g) under the
Securities Act.
“Material Properties”
means, collectively, (a) the Lost Creek Property, located in
Sweetwater County, Wyoming, and (b) the Xxxxxxx Basin Project,
located in Carbon County, Wyoming, as described in the Registration
Statement and Prospectus.
“Mining Rights” means,
without limitation, freehold title, fee title, leases, concessions,
patented mining claims and millsites, unpatented mining claims and
millsites, prospecting and exploration rights, mining and mineral
rights, in respect of the Material Properties, or other
conventional property or proprietary interests or rights,
recognized in the jurisdiction in which the Material Properties are
located.
“Permitted Liens” means
(i) the mortgages, deeds of trusts and related security interests
described in the Registration Statement and Prospectus, (ii) the
production royalties described in the Registration Statement and
Prospectus, (iii) Liens for taxes and other obligations owing to
any court or arbitrator or any governmental or regulatory authority
and assessments not yet due or delinquent or that are being
contested in good faith by appropriate proceedings, (iv) Liens
imposed by applicable state and federal laws, rules and regulations
and incurred in the ordinary course for obligations not yet due or
delinquent, (v) Liens in respect of pledges or deposits under
workers’ compensation, social security or similar laws, (vi)
easements, restrictions and reservations of record, if any, that do
not materially detract from the value of or materially impair the
use or marketability of the property affected, (vii) building and
zoning by-laws, ordinances and regulations that do not materially
detract from the value of or materially impair the use or
marketability of the property affected, (viii) Liens securing
indebtedness reflected in the financial information, and (ix) other
Liens or imperfections on property which are not material in amount
and do not materially detract from the value of or materially
impair the use or marketability of the property affected by such
Lien or imperfections.
“Rule 172,”
“Rule
405,” “Rule 415,”
“Rule
424,” “Rule 424(b),”
“Rule
430B,” and “Rule 433” refer to such
rules under the Securities Act.
All
references in this Agreement to financial statements and schedules
and other information that is “contained,”
“included” or “stated” in the Registration
Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial
statements and schedules and other information that is incorporated
by reference in the Registration Statement or the Prospectus, as
the case may be.
All
references in this Agreement to the Registration Statement, the
Prospectus or any amendment or supplement to any of the foregoing
shall be deemed to include the copy filed with the Commission
pursuant to XXXXX; all references in this Agreement to any Issuer
Free Writing Prospectus (other than any Issuer Free Writing
Prospectuses that, pursuant to Rule 433, are not required to be
filed with the Commission) shall be deemed to include the copy
thereof filed with the Commission pursuant to XXXXX; and all
references in this Agreement to “supplements” to the
Prospectus shall include, without limitation, any supplements,
“wrappers” or similar materials prepared in connection
with any offering, sale or private placement of any Placement
Shares by the Agents outside of the United States.
[Remainder
of the page intentionally left blank]
If the
foregoing correctly sets forth the understanding between the
Company and each Agent, please so indicate in the space provided
below for that purpose, whereupon this letter shall constitute a
binding agreement between the Company and each Agent.
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By:
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/s/ Xxxxxxx X.
Xxxxxx
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Name:
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Xxxxxxx X.
Xxxxxx
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Title:
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Chairman and
CEO
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ACCEPTED
as of the date first-above written:
X.
XXXXX SECURITIES, INC.
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By:
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/s/ Xxxxxxx XxXxxxxx
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Name:
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Xxxxxxx
XxXxxxxx
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Title:
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Co-Head of
Investment Banking
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CANTOR
XXXXXXXXXX & CO.
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By:
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/s/ Xxxx Xxxxx
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Name:
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Xxxx
Xxxxx
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Title:
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Global
Head of Investment Banking
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SCHEDULE 1
FORM OF
PLACEMENT NOTICE
From:
To:
[X. Xxxxx
Securities, Inc.][Cantor Xxxxxxxxxx & Co.]
Attention:
[●]
Subject: At Market
Issuance--Placement Notice
Gentlemen:
Pursuant to the
terms and subject to the conditions contained in the At Market
Issuance Sales Agreement by and among Ur-Energy Inc., a corporation
continued under the Canada
Business Corporations Act (the “Company”), X. Xxxxx
Securities, Inc. and Cantor Xxxxxxxxxx & Co. (the
“Agent”), dated June
[●], 2021, the Company hereby requests that [identify Designated Agent] sell up to
[____] of the Company’s Common Shares, no par value per
share, at a minimum market price of $per share, during the time
period beginning [month, day, time] and ending [month, day, time],
at the rate of no more than [____] Common Shares per
day.
SCHEDULE 2
________________________
Compensation
________________________
The
Company shall pay to the Designated Agent in cash, upon each sale
of Placement Shares pursuant to this Agreement, an amount up to
3.0% of the gross proceeds from each sale of Placement
Shares.
SCHEDULE 3
________________________
Notice Parties
________________________
The Company
Xxxxx X.
Smith
xxxxx.xxxxx@xx-xxxxxx.xxx
Xxxxxxx X.
Klenda
xxxx.xxxxxx@xx-xxxxxx.xxx
With
copy to:
General
Counsel
xxxxxxxxx@xx-xxxxxx.xxx
X. Xxxxx Securities
Xxxx
Xxxxx
xxxxxx@xxxxxxxxx.xxx
Xxxxxxx
XxXxxxxx
xxxxxxxxx@xxxxxxxxx.xxx
Xxxxx
Xxxxxxxxx
xxxxxxxxxx@xxxxxxxxx.xxx
Xxxxx
Xxxxxxxx
xxxxxxxxx@xxxxxxxxx.xxx
with a
copy to xxxxxxx@xxxxxxxxx.xxx
Cantor
Xxxxxx
Xxxxxxx
xxxxxxxx@xxxxxx.xxx
Xxxxxx
Xxxxxx
XXxxxxx@xxxxxx.xxx
With
copies to:
XXXxxxxxxxxxXxxxxxXxxxxxxx@xxxxxx.xxx
SCHEDULE 6(g)
________________________
Subsidiaries
________________________
Incorporated
by reference to Exhibit 21 of the Company’s most recently
filed Form 10-K.
EXHIBIT 7(1)
Form of Representation Date Certificate
___________, 20___
This
Representation Date Certificate (this “Certificate”) is executed
and delivered in connection with Section 7(1) of the Amended and
Restated At Market Issuance Sales Agreement (the
“Agreement”),
dated June [●], 2021 and entered into by and among Ur-Energy
Inc. (the “Company”), X. Xxxxx
Securities, Inc. and Cantor Xxxxxxxxxx & Co. All capitalized
terms used but not defined herein shall have the meanings given to
such terms in the Agreement.
The
Company hereby certifies as follows:
1. The representations
and warranties of the Company in Section 6 of the Agreement
(A) to the extent such representations and warranties are
subject to qualifications and exceptions contained therein relating
to materiality or Material Adverse Effect, are true and correct on
and as of the date hereof with the same force and effect as if
expressly made on and as of the date hereof, except for those
representations and warranties that speak solely as of a specific
date and which were true and correct as of such date, and
(B) to the extent such representations and warranties are not
subject to any qualifications or exceptions, are true and correct
in all material respects as of the date hereof as if made on and as
of the date hereof with the same force and effect as if expressly
made on and as of the date hereof, except for those representations
and warranties that speak solely as of a specific date and which
were true and correct as of such date.
2. The Company has
complied with all agreements and satisfied all conditions on its
part to be performed or satisfied pursuant to the Sales Agreement
at or prior to the date hereof.
The
undersigned has executed this Representation Date Certificate as of
the date first written above.
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By:
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Name:
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Title:
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EXHIBIT 23
Permitted Issuer Free Writing Prospectuses
None.
