REGISTRATION RIGHTS AGREEMENT
EXHIBIT
99.29
This
Registration Rights Agreement (this “Agreement”) is made
and entered into as of this 12th day of November, 2010,
by and among POLYMET MINING
CORP., a corporation incorporated under the laws of British Columbia (the
“Company”), and
GLENCORE AG, a
corporation existing under the laws of Switzerland (“Glencore”).
The
parties hereby agree as follows:
1. Definitions.
“Amendment” shall mean
the Amendment and Waiver, dated as of the date hereof, between the Company and
the Purchaser.
“Applicable Canadian
Securities Laws” shall mean the securities laws of the relevant provinces
and territories of Canada, as the context dictates, and the respective rules and
regulations under such laws, together with applicable published policy
statements, instruments, companion policies, blanket orders, blanket rulings and
applicable notices of or administered by the relevant Canadian securities
regulatory authorities and applicable discretionary blanket rulings or blanket
orders issued by the relevant Canadian securities regulatory authorities
pursuant to such laws, rules and regulations, all as amended and in effect from
time to time.
“Availability Date”
shall have the meaning given to it in Section 3(m).
“Business Day” shall
mean a day, other than Saturday, Sunday or other day on which commercial banks
in New York, New York or Vancouver, British Columbia are authorized or required
by law to close.
“Canadian Prospectus”
shall mean any prospectus of the Company filed with the Principal Regulator
under the Applicable Canadian Securities Laws qualifying the Registrable
Securities, and shall include all amendments and supplements thereto and all
material incorporated by reference (or deemed to be incorporated by reference)
therein.
“Claims” shall have
the meaning given to it in Section 6(a).
“Common Shares” shall
mean the Company’s common shares, no par value, or any class or classes
resulting from any recapitalization, reorganization, or reclassification
thereof.
“Debentures” shall
mean the Company’s Floating Rate Secured Debentures due September 30, 2012,
issued to Glencore in four separate tranches, in the aggregate principal amount
of US$25,000,000.
“Grace Period” shall
have the meaning given to it in Section 2(e).
“MJDS” shall mean the
U.S. Multi-Jurisdictional Disclosure System adopted by the SEC.
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“Offering End Date”
shall mean the earlier of: (i) the date Glencore consummates the purchase of the
third and final installment of 5,000,000 Common Shares pursuant to the
Subscription Agreement, and (ii) the date Glencore’s obligations under the
Subscription Agreement shall have terminated in accordance with its
terms.
“Principal Regulator”
shall mean (i) if the Prospectus is to be qualified in more than one province
and/or territory in Canada, the Canadian securities regulator designated by the
Company as its principal regulator pursuant to National Policy 11-102 – Process for Prospectus Review in
Multiple Jurisdictions, and (ii) if the Prospectus is to be qualified in
only one province of Canada, the securities regulator with respect to such
province.
“Prospectus” shall
mean (i) the Canadian Prospectus, and (ii) the prospectus included in any
Registration Statement, as amended or supplemented by any prospectus supplement,
with respect to the terms of the offering of any portion of the Registrable
Securities or amendment covered by such Registration Statement and by all other
amendments and supplements to the prospectus, including post-effective
amendments and all material incorporated by reference in such
prospectus.
“Purchase Agreement”
means the Purchase Agreement, dated as of October 31, 2008, among the Company,
Poly Met Mining, Inc. and Glencore, as amended.
“Purchasers” shall
mean Glencore and any subsequent holder of any Warrants or Registrable
Securities as a result of a transfer of such securities.
“Register,” “registered” and
“registration”
refer to (i) a registration made by preparing and filing a registration
statement in compliance with the 1933 Act, and the declaration or ordering of
effectiveness of, or the effectiveness upon filing of, such registration
statement; and (ii) the filing of the Canadian Prospectus for the purposes of
qualifying the Registrable Securities under the Applicable Canadian Securities
Laws for distribution in any or all of the provinces or territories of
Canada.
“Registrable
Securities” shall mean all Common Shares held by the Purchasers,
including the Warrant Shares and any Common Shares issued or issuable upon any
distribution with respect to, or any exchange for or any replacement of, Common
Shares or Warrants (including, in each case, any Common Shares issued or
issuable thereon upon any stock split, stock combination, stock dividend or the
like or as a result of any anti-dilution adjustments), upon original issuance
thereof and at all times subsequent thereto, and associated related rights, if
any, until, in the case of any such security, the earliest of (i) the date such
security has been sold to the public either pursuant to a registration statement
or Rule 144 under the 1933 Act, (ii) the date such security has been sold in a
private transaction in which the transferor’s rights under this Agreement are
not assigned, (iii) the date on which such security may be resold without
restriction pursuant to Rule 144(b)(1) under the 1933 Act, or (iv) the date on
which such security ceases to be outstanding.
“Registration
Expenses” shall have the meaning given to it in Section
2(d).
“Registration Period”
shall have the meaning given to it in Section 3(b).
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“Registration
Statement” shall mean any registration statement of the Company filed
under the 1933 Act that covers the resale of any of the Registrable Securities
pursuant to the provisions of this Agreement, any amendments and supplements to
such Registration Statement, including any post-effective amendments, all
exhibits thereto and all material incorporated by reference in such Registration
Statement.
“Rule 415” means Rule
415 promulgated by the SEC pursuant to the 1933 Act, as such Rule may be amended
from time to time, or any similar rule or regulation hereafter adopted by the
SEC having substantially the same purpose and effect as such Rule.
“SEC” means the U.S.
Securities and Exchange Commission.
“SEC Comments” means written
comments pertaining
solely to Rule 415 which are received by the Company from the SEC, and a copy of
which shall have been provided by the Company to the Purchasers, to a filed
Registration Statement which require the Company to limit the amount of
Registrable Securities which may be included therein to a number of Registrable
Securities, which is less than such amount sought to be included thereon as
filed with the SEC.
“Subscription
Agreement” means the Subscription Agreement, dated the date hereof,
between the Company and Glencore.
“Violations” shall
have the meaning given to it in Section 6(a).
“Warrants” shall mean
(i) the warrant to purchase 3,000,000 shares of Common Shares of the Company
issued pursuant to the Amendment and (ii) the warrant to purchase shares of
Common Shares of the Company in an amount equal to the principal amount of the
Debentures divided by $4.00 issued pursuant to the Purchase
Agreement.
“Warrant Shares” means
the Common Shares issuable upon exercise of or otherwise pursuant to the
Warrants.
“1933 Act” means the
U.S. Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“1934 Act” means the
U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
2. Registration.
(a) Demand
Registration.
(i)
If at any time following the Offering End Date, and subject to the conditions of
this Section 2, the Company shall receive a written request from Purchasers
holding at least fifty percent (50%) of the Registrable Securities (the “Initiating
Purchasers”) that the Company file a registration statement under the
1933 Act or effect a registration for a public offering in the United States
and/or in a jurisdiction or jurisdictions of Canada, covering the registration
of at least twenty-five percent (25%) of the Registrable Securities then
outstanding (or a lesser percent if the anticipated aggregate offering price,
net of underwriting discounts and commissions, would exceed $5,000,000), then
the Company shall, promptly, and in any event within twenty (20) days of the
receipt thereof, give written notice of such request to all Purchasers, and
subject to the limitations of this Section 2, use its reasonable best efforts to
effect, as expeditiously as practicable, the registration under the 1933 Act or
the Applicable Canadian Securities Laws of all Registrable Securities that the
Purchasers request to be registered. Such Registration Statement also shall
cover, to the extent allowable under the 1933 Act and the rules promulgated
thereunder (including Rule 416) or the Applicable Canadian Securities Laws, such
indeterminate number of additional shares of Common Shares resulting from stock
splits, stock dividends or similar transactions with respect to the Registrable
Securities. The Registration Statement (and each amendment or
supplement thereto) shall be provided in accordance with Section 3(c) to the
Purchasers and their counsel prior to its filing. The Company must
effect an unlimited number of registrations pursuant to this Section 2(a), provided however,
that the Company shall not be obligated to effect (A) a registration covering
the sale of Registrable Securities for an aggregate public offering price of
less than $5,000,000, (B) more than two (2) such registrations in any 12-month
period, or (C) any registration at a time when it is keeping three (3) such
registrations effective.
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(A)
For so long as the Company is eligible to use a Form F-3 or Form S-3
registration statement, as applicable, or any successor form, and upon the
written request of the Initiating Purchasers: (1) the Registration Statement
prepared by the Company shall be filed on Form F-3 or Form S-3, as applicable,
and shall cover the resale of all or such maximum portion of the Registrable
Securities as would be permitted to be registered by the SEC for an offering to
be made on a continuous basis pursuant to Rule 415, (2) the Prospectus shall
contain (except if otherwise directed by a majority in interest of the
Initiating Purchasers or otherwise required pursuant to written comments
received from the SEC upon a review of such Registration Statement) the “Plan of Distribution”
section in substantially the form attached hereto as Exhibit A, and (3)
the Company shall file any prospectus supplement (as required by Rule 430B)
pursuant to Rule 424(b)(7) under the Securities Act as may be required in order
for such Registration Statement to be used by each Purchaser for the resale of
its Registrable Securities.
(ii)
The Company shall not identify any Purchaser as an underwriter in any
Registration Statement or Prospectus filed pursuant to this Agreement without
the prior written consent of such Purchaser. The Company shall not be
required to include the Registrable Securities of any Purchaser in a
Registration Statement if, in the event that the SEC requires a Holder to be
named as an underwriter in a Registration Statement, such Holder fails to
furnish to the Company its consent.
(iii)
If the Initiating Purchasers intend to distribute the Registrable Securities
covered by their request by means of an underwritten public offering, they shall
so advise the Company as a part of their request made pursuant to this Section
2(a) and the Company shall include such information in the written notice
referred to in Section 2(a)(i). In such event, the right of any
Purchaser to include such Purchaser’s Registrable Securities in such
registration shall be conditioned upon such Purchaser’s participation in such
underwriting and the inclusion of such Purchaser’s Registrable Securities in the
underwriting to the extent provided herein. All Purchasers proposing
to distribute their Registrable Securities through such underwriting and the
Company shall enter into an underwriting agreement, in customary form with the
underwriter or underwriters selected for such underwriting by a majority in
interest of the Initiating Purchasers (which underwriter or underwriters shall
be reasonably acceptable to the Company).
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(iv)
Notwithstanding any other provision of this Section 2(a), if the underwriter
advises the Company that marketing factors require a limitation of the number of
securities to be underwritten (including Registrable Securities) then the
Company shall so advise all Purchasers of Registrable Securities which would
otherwise be underwritten pursuant hereto, and the number of shares that may be
included in the underwriting shall be allocated to the Purchasers that requested
to have Registrable Securities registered (including the Initiating Purchasers)
pro rata by reference to the number of Registrable Securities requested to be
registered by a given Purchaser and the aggregate number of Registrable
Securities sought to be included in such Registration Statement. Any Registrable
Securities excluded or withdrawn from such underwriting shall be withdrawn from
the registration.
(v)
Provided that the Company is eligible to file under MJDS, (A) the Company shall
file a Prospectus with the Principal Regulator in such form as required under
the applicable securities laws of the relevant Canadian provinces and
territories, and (B) any registration statement filed pursuant to this Section
2(a) shall be filed on Form F-10. The Initiating Purchasers shall as
a part of their request made pursuant to this Section 2(a) state whether the
Registrable Securities shall be offered in one or more provinces and/or
territories of Canada and specify such provinces and/or
territories.
If Form
F-10 is not available for the registration of the resale of Registrable
Securities hereunder, the Company shall (x) register the resale of the
Registrable Securities on Form F-3 or another appropriate form of registration
statement reasonably acceptable to the Initiating Purchasers and (y) undertake
to register the Registrable Securities on Form F-10 as soon as such form is
available, provided that the Company shall maintain, subject to applicable Grace
Periods (as hereinafter defined) the effectiveness of the Registration Statement
then in effect until such time as a Registration Statement on Form F-10 covering
the Registrable Securities has been declared effective by the SEC or becomes
effective upon filing with the SEC.
(vi)
The Company shall not be required to effect a registration or, in the
circumstances contemplated in (y) below, a prospectus qualification pursuant to
this Section 2(a): (x) during the period starting with the date sixty (60) days
prior to the Company’s good faith estimate of the date of filing of, and ending
on a date one hundred eighty (180) days after the effective date of, a
Company-initiated registration; provided that the
Company is actively employing in good faith all reasonable efforts to cause such
registration statement to become effective; or (y) if the Company shall furnish
to the Initiating Purchasers a certificate signed by the Chairman of the Board
stating that in the good faith and reasonable judgment of the Board of Directors
of the Company, it would be seriously detrimental to the Company and its
shareholders for such Registration Statement to be effected or such Prospectus
to be qualified at such time, in which event the Company shall have the right to
defer such filing for a period of not more than ninety (90) days after receipt
of the request of the Initiating Purchasers; provided that such
right to delay a request shall be exercised by the Company not more than once in
any twelve (12) month period.
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(vii)
The Company may include in any resale registration other securities for sale for
the account of any other person to whom registration rights have been
granted. Additionally, the Company may include in any registration
that involves an underwritten offering other securities for its own account or
for the account of any other person to whom registration rights have been
granted; provided
that, if the underwriter for the offering shall determine that the number
of shares proposed to be offered in such offering would be reasonably likely to
adversely affect such offering, then all of the Registrable Securities to be
sold by the Purchasers shall be included in such registration before any
securities proposed to be sold for the account of the Company or any other
person. The inclusion in any registration pursuant to this subsection
(vii) of any securities of the Company or any other person shall be conditional
upon the acceptance by the Company or any such other person of the application
provisions of this Agreement.
(b) Piggyback
Registration.
(i)
Following the Offering End Date, the Company shall notify all Purchasers in
writing at least fifteen (15) days prior to the filing of any registration
statement under the 1933 Act or Canadian Prospectus for purposes of a public
offering of securities of the Company (whether in connection with a public
offering of securities by the Company, a public offering of securities by
shareholders of the Company, or both, but excluding a registration relating
solely to employee benefit plans, or a registration relating to a corporate
reorganization or other transaction, or a registration on any registration form
that does not permit secondary sales). Each Purchaser desiring to
include in any such registration statement or Canadian Prospectus all or any
part of the Registrable Securities held by such Purchaser shall, within ten (10)
days after receipt of the above-described notice from the Company, so notify the
Company in writing and the Company shall use its reasonable best efforts,
subject to the provisions of this Agreement, to include in such registration
statement or prospectus all of the Registrable Securities specified in such
notice or notices. Such notice shall state the intended method of
disposition of the Registrable Securities by such Purchaser as set forth
herein. If a Purchaser decides not to include all of its Registrable
Securities in any registration statement or Canadian Prospectus thereafter filed
by the Company, such Purchaser shall nevertheless continue to have the right to
include any Registrable Securities in any subsequent registration statement,
registration statements, Canadian Prospectus or Canadian Prospectuses as may be
filed by the Company with respect to offerings of its securities, all upon the
terms and conditions set forth herein.
(ii)
Underwriting. If
the Registration Statement or Canadian Prospectus under which the Company gives
notice under this Section 2(b) is for an underwritten offering, the Company
shall so advise the Purchasers as part of the notice given pursuant to Section
2(b)(i). In such event, the right of any such Purchaser to be
included in a registration or prospectus qualification pursuant to this Section
2(b) shall be conditioned upon such Purchaser’s participation in such
underwriting and the inclusion of such Purchaser’s Registrable Securities in the
underwriting to the extent provided herein. All Purchasers proposing
to distribute their Registrable Securities through such underwriting shall enter
into an underwriting agreement, together with the Company and any other security
holders participating in that registration, in customary form with the
underwriter or underwriters selected for such underwriting by the
Company.
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Notwithstanding any other provision of
this Section 2(b), if the underwriter determines in good faith that marketing
factors require a limitation of the number of shares to be underwritten, the
number of shares that may be included in the underwriting shall be allocated
first to the Company; second, to all Purchasers who are entitled to participate
and who have elected to participate in the offering pursuant to the terms of
this Agreement, pro rata by reference to the number of Registrable Securities
requested to be registered by a given Purchaser and the aggregate number of
Registrable Securities sought to be included in such Registration Statement or
Canadian Prospectus; and third, to any other security holders of the Company
participating in that registration on a pro rata basis.
If any
Purchaser disapproves of the terms of any such underwriting, such Purchaser may
elect to withdraw therefrom by written notice to the Company and the underwriter
or underwriters, delivered at least ten (10) Business Days prior to the
effective date of the registration statement or the filing of the final Canadian
Prospectus, as applicable. Any Registrable Securities excluded or
withdrawn from such underwriting shall be excluded and withdrawn from the
registration or prospectus qualification. If any Registrable
Securities so withdrawn from the registration or prospectus qualification and if
the number of Registrable Securities to be included in such registration or
prospectus qualification was previously reduced as a result of marketing
factors, the Company shall then promptly offer to all Purchasers who have
retained the right to include Registrable Securities in the registration or
prospectus qualification the right to include additional securities in the
registration or prospectus qualification in an aggregate amount equal to the
number of shares so withdrawn, with such shares to be allocated pro rata among
the Purchasers requesting additional inclusion.
(iii)
Right to Terminate
Registration. The Company shall have the right to terminate or
withdraw any registration or prospectus qualification initiated by it under this
Section 2(b) prior to the effectiveness of such registration or final approval
of such prospectus qualification whether or not any Purchaser has elected to
include securities in such registration or prospectus
qualification. The Registration Expenses of such withdrawn
registration or prospectus qualification shall be borne by the Company in
accordance with Section 2(d) hereof.
(c)
SEC
Comments. If the Company receives SEC Comments to a
Registration Statement filed pursuant to Section 2(a) or Section 2(b), as
applicable, the Company shall be obligated to use its diligent efforts to
advocate with the SEC for the registration of all of the Registrable Securities
requested to be included in the Registration Statement in accordance with
applicable SEC guidance, including without limitation, Section 612.09 of the
Compliance and Disclosure Interpretations of the staff of the Division of
Corporation Finance with respect Rule 415, dated January 26, 2009. If
it is determined by the Company that all of the Registrable Securities requested
to be included in a Registration Statement cannot be included due to the SEC
Comments, then the Company shall use its reasonable best efforts to prepare and
file as expeditiously as practicable, such number of additional Registration
Statements as may be necessary in order to ensure that all Registrable
Securities are covered by an existing and effective Registration
Statement. Any cutbacks of Registrable Securities from a Registration
Statement filed pursuant to Section 2(a) or Section 2(b), as applicable, due to
SEC Comments shall be applied to the Purchasers pro rata in accordance with the
number of such Registrable Securities sought to be included in such Registration
Statement by reference to the number of such Purchaser’s Registrable Securities
relative to all outstanding Registrable Securities.
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(d) Expenses. The
Company will pay all expenses associated with each registration and prospectus
qualification (“Registration
Expenses”), including reasonable fees and expenses of one counsel for the
Purchasers, but excluding discounts, commissions, fees of underwriters, selling
brokers, dealer managers or similar securities industry professionals relating
to the Registrable Securities included in the registration or prospectus
qualification. Notwithstanding the foregoing, the Company shall not,
however, be required to pay for expenses of any registration proceeding or
prospectus qualification begun pursuant to Section 2(a), the request of which
has been subsequently withdrawn by the Purchasers unless (a) the withdrawal is
based upon material adverse information concerning the Company that the Company
had not publicly disclosed or otherwise notified the Purchasers of at least
forty-eight (48) hours prior to the request. If the Purchasers are
required to pay the Registration Expenses, such expenses shall be borne by the
Purchasers pro rata by reference to the number of Registrable Securities
requested to be registered or qualified by a given Purchaser and the aggregate
number of Registrable Securities sought to be included in such Registration
Statement or Canadian Prospectus.
(e) Effectiveness.
(i)
The Company shall use its reasonable best efforts to have each Registration
Statement declared effective promptly after filing.
(ii)
Notwithstanding anything to the contrary herein, at any time after a
Registration Statement has been declared effective by the SEC or a Canadian
Prospectus has been qualified in Canada (i) if the Company possesses material,
non-public information the disclosure of which at the time is not, in the
reasonable discretion of the Company, in the best interest of the Company or
(ii) an event described in Section 3(h) or 3(l) shall occur (a “Grace Period”), the
Company shall promptly (i) notify the Purchasers in writing of the reason giving
rise to a Grace Period (provided that in each notice the Company will not
disclose any content of such material, nonpublic information to the Purchasers),
and (ii) notify the Purchasers in writing of the date on which the Grace Period
ends; and, provided further, that no Grace Period shall exceed ten (10)
consecutive calendar days and during any three hundred sixty five (365) day
period such Grace Periods shall not exceed an aggregate of twenty-five (25)
trading days. The Grace Period shall begin on and include the date
the Purchasers receive the notice referred to in clause (i) and shall end on and
include the later of the date the Purchasers receive the notice referred to in
clause (ii) and the date referred to in such notice during which time Purchasers
shall not make any sales of Registrable Securities under the Registration
Statement or the Canadian Prospectus.
3. Company
Obligations. The Company will use its reasonable best efforts
to effect the registration of the Registrable Securities in accordance with the
terms hereof, and pursuant thereto the Company will:
(a)
ensure that each Registration Statement (including any amendments or supplements
thereto and prospectuses contained therein) shall not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein, or necessary to make the statements therein (in the case of
Prospectuses, in the light of the circumstances in which they were made) not
misleading.
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(b)
use its reasonable best efforts to cause any Registration Statement required to
be filed pursuant to Section 2(a) hereof to become effective as soon as
practicable and to remain continuously effective for a period (the “Registration Period”)
that will terminate upon the date on which all Registrable Securities covered by
the Registration Statement have been sold.
(c)
prepare and file with (i) the SEC such amendments, post-effective
amendments and supplements to any Registration Statement and related Prospectus
as may be necessary to keep the Registration Statement effective and permit
sales of the Registrable Securities thereunder during the Registration Period
and to comply with the provisions of the 1933 Act and the 1934 Act with respect
to the distribution of all Registrable Securities, and (ii) the Principal
Regulator and any other applicable Canadian securities regulators such
supplements and amendments to the Prospectus as may be required under Applicable
Canadian Securities Laws;
(d)
permit counsel designated by the Purchasers to review and comment on each
Registration Statement and Prospectus and all amendments and supplements thereto
no fewer than five (5) Business Days prior to their filing with the SEC and
Principal Regulator and not file any document to which such counsel reasonably
objects;
(e)
to the extent not publicly available through either XXXXX or SEDAR, furnish to
the Purchasers and their counsel (i) promptly after the same is prepared and
publicly distributed, filed with the SEC or the Principal Regulator, or received
by the Company, one copy of any Registration Statement and any amendment thereto
including all exhibits thereto and any documents incorporated by reference
therein, each preliminary Prospectus and Prospectus and each amendment or
supplement thereto, and each letter written by or on behalf of the Company to
the SEC or the staff of the SEC or to the Principal Regulator or the staff of
the Principal Regulator, and each item of correspondence from the SEC or the
staff of the SEC or the Principal Regulator or the staff of the Principal
Regulator, in each case relating to such Registration Statement or Prospectus
(other than any portion of any thereof which contains information for which the
Company has sought confidential treatment), and (ii) such number of copies of a
Prospectus, including a preliminary prospectus, and all amendments and
supplements thereto and such other documents as each Purchaser may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such Purchaser;
(f)
in the event the Company selects an underwriter for the offering, the
Company shall enter into and perform its reasonable obligations under an
underwriting agreement, in usual and customary form, including, without
limitation, customary indemnification and contribution obligations, with the
underwriter of such offering;
(g)
if required by any underwriter, or if any Purchaser is required to be described
in the Registration Statement or Canadian Prospectus as an underwriter, the
Company shall furnish, on the effective date of the Registration Statement or
the filing date of the final Canadian Prospectus, as applicable, on the date
that Registrable Securities are delivered to an underwriter, if any, for sale in
connection with the Registration Statement or Canadian Prospectus and thereafter
from time to time as any underwriter, including any Purchaser described as such,
may reasonably request, (i) an opinion, dated such date, from independent legal
counsel representing the Company for purposes of such Registration Statement or
Canadian Prospectus, in form, scope and substance as is customarily given in an
underwritten public offering, addressed to the underwriter and any Purchaser
described as such, and (ii) a letter, dated such date, from the Company’s
independent certified public accountants in form and substance as is customarily
given by independent certified public accountants to underwriters in an
underwritten public offering, addressed to the underwriter and any such
Purchaser described as such;
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(h)
use reasonable best efforts to prevent the issuance of any stop order or other
suspension of effectiveness of any Registration Statement or Canadian Prospectus
or the suspension of the qualification of any of the Registrable Securities for
sale in any jurisdiction and, if such an order or suspension is issued, to
obtain the withdrawal of such order or suspension as soon as reasonably
practicable and to notify each Purchaser who holds Registrable Securities being
sold of the issuance of such order and the resolution thereof or its receipt of
written notice of the initiation or threat of any proceeding for such
purpose;
(i)
furnish to each Purchaser, upon written request, at least five (5) copies of the
Registration Statement and Prospectus and any amendment thereto, including
exhibits, financial statements, and schedules by certified mail, return receipt
requested, or reputable courier within three (3) Business Days of the effective
date thereof;
(j)
prior to any public offering of Registrable Securities, use its reasonable best
efforts to register or qualify or cooperate with the Purchasers and their
counsel in connection with the registration or qualification of such Registrable
Securities for offer and sale under the securities or blue sky laws of such
jurisdictions requested by the Purchasers and do any and all other reasonable
acts or things necessary or advisable to enable the distribution in such
jurisdictions of the Registrable Securities covered by the Registration
Statement or Canadian Prospectus; provided that the
Company shall not be required to (i) qualify as a foreign corporation in any
jurisdiction in which it would not otherwise be required to so qualify, (ii)
file a general consent to service of process in any such jurisdiction or (iii)
subject itself to taxation in any jurisdiction in which it would not otherwise
be subject;
(k)
cause all Registrable Securities covered by a Registration Statement to be
listed on each securities exchange, interdealer quotation system or other market
on which similar securities issued by the Company are then listed;
(l)
as promptly as practicable notify the Purchasers, at any time when a Prospectus
relating to the Registrable Securities is required to be delivered under the
1933 Act or Applicable Canadian Securities Laws, upon discovery that, or upon
the happening of any event as a result of which, the Prospectus, as then in
effect, includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing, provided
that in no event shall such notice contain any material, nonpublic information
and, promptly prepare, file with the SEC and applicable Canadian securities
regulator authorities and furnish to the Purchasers a reasonable number of
copies of, a supplement to or an amendment of such Prospectus to correct any
such untrue statement or omission and promptly notify the Purchasers of the
filing of any such amendment or supplement and, if applicable, the effectiveness
thereof;
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(m)
comply with all applicable rules and regulations of the SEC under the 1933 Act
and the 1934 Act, take such other actions as may be reasonably necessary to
facilitate the registration of the Registrable Securities hereunder; and make
available to its security holders, as soon as reasonably practicable, but not
later than the Availability Date (as defined below), an earnings statement
covering a twelve month period beginning no later than the first day of the
Company’s fiscal quarter next following the effective date of each Registration
Statement, which earnings statement shall satisfy the provisions of Section
11(a) of the 1933 Act (for the purpose of this subsection 3(l), “Availability Date”
means the 45th day following the end of the fiscal quarter that includes the
effective date of such Registration Statement, except that, if such fiscal
quarter is the last quarter of the Company’s fiscal year, “Availability Date”
means the 90th day after the end of such fiscal quarter); and
(n)
within two (2) Business Days after a Registration Statement that covers
Registrable Securities becomes or is ordered effective by the SEC, the Company
shall deliver, to the transfer agent for such Registrable Securities
confirmation that such Registration Statement has been declared effective by the
SEC. Within two (2) Business Days following notice of any sale of
Registrable Securities pursuant to an effective Registration Statement, the
Company shall notify its counsel of such sale, and shall thereafter promptly
cause its counsel to issue a legal opinion to its transfer agent, if required by
its transfer agent, to effect the removal of the 1933 Act restrictive legend
from the Registrable Securities sold pursuant to such effective Registration
Statement.
4. Due Diligence Review;
Information. Subject to the last sentence of this
Section 4, the Company shall make available, during normal business hours,
for inspection and review by any Purchaser who may be deemed an underwriter,
advisors to and representatives of such Purchasers (who may or may not be
affiliated with the Purchasers), and any underwriter participating in any
disposition of Common Shares on behalf of the Purchasers pursuant to a
Registration Statement or Canadian Prospectus or amendments or supplements
thereto or any blue sky, NASD or other filing, all financial and other records,
all SEC Filings and other filings with the SEC and applicable Canadian
securities regulatory authorities, and all other corporate documents and
properties of the Company as may be reasonably necessary for the purpose of
establishing a due diligence defense under applicable securities laws and such
other reasonable purposes, and cause the Company’s officers, directors and
employees to promptly supply all such information reasonably requested by such
Purchasers or any such representative, advisor or underwriter in connection with
such Registration Statement or Canadian Prospectus (including, without
limitation, in response to all questions and other inquiries reasonably made or
submitted by any of them), prior to and from time to time after the filing and
effectiveness of the Registration Statement or Canadian Prospectus for the sole
purpose of enabling such Purchasers and such representatives, advisors and
underwriters and their respective accountants and counsel to conduct initial and
ongoing due diligence with respect to the Company and the accuracy of the
information included in the Registration Statement or Canadian
Prospectus.
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The
Company shall not disclose material nonpublic information to the Purchasers, or
to advisors to or representatives of the Purchasers, unless prior to disclosure
of such information the Company identifies such information as being material
nonpublic information and provides the Purchasers, such advisors and
representatives with the opportunity to accept or refuse to accept such material
nonpublic information for review. The Company may, as a condition to
disclosing any material nonpublic information hereunder, require the Purchasers
and their advisors and representatives to enter into a confidentiality agreement
(including an agreement prohibiting them from trading in Common Shares during
such period of time as they are in possession of material nonpublic information,
provided that any such period in which the Purchasers are precluded from trading
shall be considered a Grace Period in accordance with, and subject to the
provisions of, Section 2(e)(ii) of this Agreement) in form reasonably
satisfactory to the Company and the Purchasers. Nothing herein shall
require the Company to disclose material nonpublic information to the Purchasers
or their advisors or representatives.
5. Obligations of the
Purchasers.
(a)
Each Purchaser shall furnish in writing to the Company such information
regarding itself, the Registrable Securities held by it and the intended method
of disposition of the Registrable Securities held by it, as shall be reasonably
required to effect the registration of such Registrable Securities and shall
execute such documents in connection with such registration as the Company may
reasonably request. At least ten (10) Business Days prior to the
first anticipated filing date of any Registration Statement or Canadian
Prospectus, the Company shall notify each Purchaser of the information the
Company requires from such Purchaser if such Purchaser elects to have any of the
Registrable Securities included in the Registration Statement or Canadian
Prospectus.
(b)
Each Purchaser, by its acceptance of the Registrable Securities agrees to
cooperate with the Company as reasonably requested by the Company in connection
with the preparation and filing of a Registration Statement or Canadian
Prospectus hereunder, unless such Purchaser has notified the Company in writing
of its election to exclude all of its Registrable Securities from the
Registration Statement or Canadian Prospectus. Each Purchaser agrees
to comply with the applicable prospectus delivery requirements under (i) the
1933 Act in connection with any resales of Registrable Securities pursuant to
the Registration Statement and (ii) Applicable Canadian Securities Laws in
connection with any resales of Registrable Securities pursuant to the Canadian
Prospectus.
(c)
Each Purchaser agrees that, upon receipt of notice from the Company of the
happening of any event described in Section 2(e)(ii), 3(h) or 3(l), such
Purchaser will immediately discontinue disposition of Registrable Securities
pursuant to the Registration Statement or Canadian Prospectus covering such
Registrable Securities, until the Purchaser’s receipt of the copies of the
supplemented or amended Prospectus filed with the Principal Regulator or the SEC
and, if applicable, declared effective by the SEC, or receipt of notice from the
Company that no supplement or amendment is required or any applicable stop order
or suspension has been lifted, and, if so directed by the Company, the Purchaser
shall deliver to the Company (at the expense of the Company) or destroy all
copies in the Purchaser’s possession of the Prospectus covering the Registrable
Securities current at the time of receipt of such notice.
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(d)
No Purchaser may participate in any third party underwritten registration
pursuant to Section 2(b) hereunder unless it (i) agrees to sell the Registrable
Securities, as applicable, on the basis provided in any underwriting
arrangements in usual and customary form entered into by the Company, (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up agreements and other documents reasonably
required under the terms of such underwriting arrangements, and (iii) agrees to
pay its pro rata share of all underwriting discounts, commissions and
fees.
6. Indemnification.
(a)
Indemnification by
Company. The Company shall indemnify and hold harmless, to the
fullest extent permitted by law, each Purchaser, each of its officers,
directors, partners and each person who controls such Purchaser (within the
meaning of the 1933 Act or Applicable Canadian Securities Laws) against all
losses, claims, damages, liabilities, costs (including, without limitation,
reasonable attorney’s fees) amounts paid in settlement and expenses incurred by
such person (collectively, “Claims”) insofar as
such Claim arises out of or is based upon: (i) any untrue or alleged untrue
statement of a material fact contained in any Registration Statement or Canadian
Prospectus, or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, (ii) any untrue statement or alleged untrue statement of a material
fact contained in any preliminary Prospectus if used prior to the effective date
of such Registration Statement, or contained in the final Prospectus (as amended
or supplemented, if the Company files any amendment thereof or supplement
thereto with the SEC or Principal Regulator, as applicable) or the omission or
alleged omission to state therein any material fact necessary to make the
statements made therein, in the light of the circumstances under which the
statements therein were made, not misleading, or (iii) any violation by the
Company of any federal, state, provincial, territorial or common law, rule or
regulation applicable to the Company in connection with any Registration
Statement, Prospectus or any preliminary Prospectus, or any amendment or
supplement thereto (clauses (i), (ii) and (iii) being collectively, “Violations”), and
shall reimburse, in accordance with subparagraph (c) below, each of the
foregoing persons for any legal and any other expenses reasonably incurred in
connection with investigating or defending any such
Claims. Notwithstanding anything to the contrary contained herein,
the indemnification agreement contained in this Section 6(a): (i)
shall not apply to a Claim by an indemnified person arising out of or based upon
a Violation that occurs in reliance upon and in conformity with information
furnished in writing to the Company by such indemnified person or by a Purchaser
on behalf of such indemnified person expressly for use in connection with the
preparation of the Registration Statement or Prospectus or any such amendment
thereof or supplement thereto and; (ii) shall not be available to the extent
such Claim is based on a failure of the Purchaser to deliver or to cause to be
delivered the Prospectus made available by the Company pursuant to Section 3(k)
if such Prospectus was timely made available by the Company reasonably in
advance to the time delivery of such Prospectus was required of such indemnified
person. Indemnity under this Section 6(a) shall remain in full force
and effect regardless of any investigation made by or on behalf of any
indemnified party and shall survive the permitted transfer of the Registrable
Securities.
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(b)
Indemnification by
Purchasers. In connection with any registration pursuant to
the terms of this Agreement, each Purchaser will severally but not jointly,
indemnify and hold harmless, to the fullest extent permitted by law, the
Company, its directors, officers, and each person who controls the Company
(within the meaning of the 1933 Act or Applicable Canadian Securities Laws)
against any Claim insofar as such Claim arises out of or is based on any
Violation, in each case to the extent, but only to the extent that such
Violation occurs in reliance upon and in conformity with information furnished
in writing by such Purchaser to the Company specifically for inclusion in such
Registration Statement or Prospectus or amendment or supplement
thereto. In no event shall the liability of a Purchaser be greater in
amount than the dollar amount of the proceeds (net of all expenses paid by such
Purchaser and the amount of any damages such Purchaser has otherwise been
required to pay by reason of such Violation) received by such Purchaser upon the
sale of the Registrable Securities included in the Registration Statement giving
rise to such indemnification obligation.
(c)
Conduct of
Indemnification Proceedings. Any person entitled to
indemnification hereunder shall (i) give prompt written notice to the
indemnifying party of any Claim with respect to which it seeks indemnification
and (ii) permit such indemnifying party to assume the defense of such Claim with
counsel reasonably satisfactory to the indemnified party; provided that any
person entitled to indemnification hereunder shall have the right to employ
separate counsel and to participate in the defense of such Claim, but the fees
and expenses of such counsel shall be at the expense of such person unless (a)
the indemnifying party has agreed to pay such fees or expenses, (b) the
indemnifying party shall have failed to assume the defense of such Claim and
employ counsel reasonably satisfactory to such person within a reasonable period
of time of being notified of the Claim or (c) in the reasonable judgment of any
such person, based upon advice of its counsel, a conflict of interest exists
between such person and the indemnifying party with respect to such Claims or
there are one or more defenses available to the indemnified party that are not
available to the indemnifying party (in which case, if the person notifies the
indemnifying party in writing that such person elects to employ separate counsel
at the expense of the indemnifying party, the indemnifying party shall not have
the right to assume the defense of such Claim on behalf of such person); and
provided, further, that the
failure of any indemnified party to give written notice as provided herein shall
not relieve the indemnifying party of its obligations hereunder, except to the
extent that such failure to give notice shall materially adversely affect the
indemnifying party in the defense of any such Claim or litigation. It
is understood that the indemnifying party shall not, in connection with any
proceeding in the same jurisdiction, be liable for fees or expenses of more than
one separate firm of attorneys, and one firm of local counsel, at any time for
all such indemnified parties. No indemnifying party will, except with
the consent of the indemnified party, consent to entry of any judgment or enter
into any settlement that does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a release from
all liability in respect of such Claim or litigation. The
indemnification required by this Section 6 shall be made by periodic payments
during the course of the investigation or defense of any Claim, as and when
bills are received or Claims are incurred.
(d)
Contribution. If
for any reason the indemnification provided for in the preceding paragraphs (a)
and (b) is unavailable to an indemnified party or insufficient to hold it
harmless, other than as expressly specified therein, then the indemnifying party
shall contribute to the amount paid or payable by the indemnified party as a
result of such Claim, in such proportion as is appropriate to reflect the
relative fault of the indemnified party and the indemnifying party, as well as
any other relevant equitable considerations. No person guilty of
fraudulent misrepresentation within the meaning of Section 11(f) of the 1933 Act
or Applicable Canadian Securities Laws shall be entitled to contribution from
any person not guilty of such fraudulent misrepresentation. In no
event shall the contribution obligation of a Purchaser be greater in amount than
the dollar amount of the proceeds (net of all expenses paid by such Purchaser
and the amount of any damages such Purchaser has otherwise been required to pay
by reason of such Violation) received by it upon the sale of the Registrable
Securities giving rise to such contribution obligation.
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7. Reports Under the 1934 Act
and Canadian Securities Laws.
With a
view to making available to the Purchasers the benefits of Rule 144 promulgated
under the 1933 Act or any other similar rule or regulation of the SEC that may
at any time permit the Purchasers to sell securities of the Company to the
public without registration, the Company agrees to:
(a)
make and keep public information available, as those terms are understood and
defined in Rule 144;
(b)
file with the SEC in a timely manner all reports and other documents required of
the Company under the 1933 Act and the 1934 Act so long as the Company remains
subject to such requirements and the filing of such reports and other documents
is required for the applicable provisions of Rule 144; and
(c)
furnish to each Purchaser so long as such Purchaser owns Registrable Securities,
promptly upon request, (i) a written statement by the Company, if true, that it
has complied with the reporting requirements of Rule 144, the 1933 Act and the
1934 Act, (ii) a copy of the most recent annual or quarterly report of the
Company and such other reports and documents so filed by the Company, and (iii)
such other information as may be reasonably requested to permit the Purchasers
to sell such securities pursuant to Rule 144 without registration.
The
Company will also continue to make all filings and take all actions required to
maintain its reporting issuer status under Applicable Canadian Securities Laws
and use its reasonable best efforts to maintain its eligibility to file a
Registration Statement on Form F-3 or Form S-3, as applicable.
8. Miscellaneous.
(a)
Amendments and
Waivers. This Agreement may be amended only by a writing
signed by the parties hereto. The Company may take any action herein
prohibited, or omit to perform any act herein required to be performed by it,
only if the Company shall have obtained the written consent to such amendment,
action or omission to act, of the Purchasers affected by such amendment, action
or omission to act.
(b)
Notices. All
notices and other communications provided for or permitted hereunder shall be
made as set forth in Section 14 of the Amendment.
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(c)
Assignments and
Transfers by Purchasers. This Agreement and all the rights and
obligations of any Purchaser hereunder may be assigned or transferred to any
transferee or assignee of the Warrants or Registrable Securities. A
Purchaser may make such assignment or transfer to any transferee or assignee of
any Warrant or Registrable Securities, provided that (i)
such transfer is made expressly subject to this Agreement and the transferee
agrees in writing to be bound by the terms and conditions hereof and (ii) the
Company is provided with written notice of such assignment.
(d)
Assignments and
Transfers by the Company. This Agreement may not be assigned
by the Company without the prior written consent of the Purchasers, and any
assignment or attempted assignment made without such consent shall be void and
of no effect.
(e)
Benefits of the
Agreement. The terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective permitted successors
and assigns of the parties. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
(f)
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. This Agreement may be executed by facsimile.
(g)
Titles and
Subtitles. The titles and subtitles used in this Agreement are
used for convenience only and are not to be considered in construing or
interpreting this Agreement.
(h)
Severability. If
one or more provisions of this Agreement are held to be unenforceable under
applicable law, such provision shall be excluded from this Agreement and the
balance of this Agreement shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms to the fullest
extent permitted by law.
(i)
Further
Assurances. The parties shall execute and deliver all such
further instruments and documents and take all such other actions as may
reasonably be required to carry out the transactions contemplated hereby and to
evidence the fulfillment of the agreements herein contained.
(j)
Entire
Agreement. This Agreement, together with the Amendment and
documents contemplated thereby, is intended by the parties as a final expression
of their agreement and intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein. This Agreement, together with the Amendment
and documents contemplated thereby, supersedes all prior agreements and
understandings between the parties with respect to such subject
matter.
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(k)
Applicable
Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York without regard to principles
of conflicts of law that would defer to the substantive laws of another
jurisdiction.
[Signature
Page Follows]
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IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as
of the date first written above.
THE
COMPANY:
By:
/s/ Xxxxxxx
Xxxxx
Name:
Xxxxxxx Xxxxx
Title:
Chief Financial Officer
THE
PURCHASER:
GLENCORE
AG
By:
/s/ Xxxxxx
Xxxxx
Name:
Xxxxxx Xxxxx
Title:
Officer
By:
/s/ Xxxxxxx
Xxxxxx
Name:
Xxxxxxx Xxxxxx
Title:
Officer
EXHIBIT
A
PLAN OF
DISTRIBUTION
We are
registering the Common Shares held by the selling shareholders to permit the
resale of these Common Shares by the selling shareholders from time to time
after the date of this prospectus. We will not receive any of the
proceeds from the sale by the selling shareholders of the Common
Shares. We will bear all fees and expenses incident to our obligation
to register the Common Shares.
The
selling shareholders may sell all or a portion of the Common Shares beneficially
owned by them and offered hereby from time to time directly or through one or
more underwriters, broker-dealers or agents. If the Common Shares are
sold through underwriters or broker-dealers, the selling shareholders will be
responsible for underwriting discounts or commissions or agent's
commissions. The Common Shares may be sold in one or more
transactions at fixed prices, at prevailing market prices at the time of the
sale, at varying prices determined at the time of sale, or at negotiated
prices. These sales may be effected in transactions, which may
involve crosses or block transactions,
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on
any national securities exchange or quotation service on which the
securities may be listed or quoted at the time of
sale;
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in
the over-the-counter market;
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in
transactions otherwise than on these exchanges or systems or in the
over-the-counter market;
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through
the writing of options, whether such options are listed on an options
exchange or otherwise;
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in
ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
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in
block trades in which the broker-dealer will attempt to sell the shares as
agent but may position and resell a portion of the block as principal to
facilitate the transaction;
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in
purchases by a broker-dealer as principal and resale by the broker-dealer
for its account;
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in
an exchange distribution in accordance with the rules of the applicable
exchange;
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in
privately negotiated transactions;
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in
short sales;
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in
sales pursuant to Rule 144;
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broker-dealers
may agree with the selling shareholders to sell a specified number of such
shares at a stipulated price per
share;
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by
a combination of any such methods of sale;
and
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by
any other method permitted pursuant to applicable
law.
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If the
selling shareholders effect such transactions by selling Common Shares to or
through underwriters, broker-dealers or agents, such underwriters,
broker-dealers or agents may receive commissions in the form of discounts,
concessions or commissions from the selling shareholders or commissions from
purchasers of the Common Shares for whom they may act as agent or to whom they
may sell as principal (which discounts, concessions or commissions as to
particular underwriters, broker-dealers or agents may be in excess of those
customary in the types of transactions involved). In connection with
sales of the Common Shares or otherwise, the selling shareholders may enter into
hedging transactions with broker-dealers, which may in turn engage in short
sales of the Common Shares in the course of hedging in positions they
assume. The selling shareholders may also sell Common Shares short
and deliver Common Shares covered by this prospectus to close out short
positions and to return borrowed shares in connection with such short
sales. The selling shareholders may also loan or pledge Common Shares
to broker-dealers that in turn may sell such shares.
The
selling shareholders may pledge or grant a security interest in some or all of
the warrants or Common Shares owned by them and, if they default in the
performance of their secured obligations, the pledgees or secured parties may
offer and sell the Common Shares from time to time pursuant to this prospectus
or any amendment or supplement to this prospectus the Securities Act of 1933, as
amended, amending, if necessary, the list of selling shareholders to include the
pledgee, transferee or other successors in interest as selling shareholders
under this prospectus. The selling shareholders also may transfer and
donate the warrants or Common Shares in other circumstances in which case the
transferees, donees, pledgees or other successors in interest will be the
selling beneficial owners for purposes of this prospectus.
The
selling shareholders and any broker-dealer participating in the distribution of
the Common Shares may be deemed to be “underwriters” within the meaning of the
Securities Act, and any commission paid, or any discounts or concessions allowed
to, any such broker-dealer may be deemed to be underwriting commissions or
discounts under the Securities Act. At the time a particular offering
of the Common Shares is made, a prospectus supplement, if required, will be
distributed which will set forth the aggregate amount of Common Shares being
offered and the terms of the offering, including the name or names of any
broker-dealers or agents, any discounts, commissions and other terms
constituting compensation from the selling shareholders and any discounts,
commissions or concessions allowed or reallowed or paid to
broker-dealers.
Under the
securities laws of some states, the Common Shares may be sold in such states
only through registered or licensed brokers or dealers. In addition,
in some states the Common Shares may not be sold unless such shares have been
registered or qualified for sale in such state or an exemption from registration
or qualification is available and is complied with.
There can
be no assurance that any selling shareholder will sell any or all of the Common
Shares registered pursuant to the shelf registration statement, of which this
prospectus forms a part.
The
selling shareholders and any other person participating in such distribution
will be subject to applicable provisions of the Securities Exchange Act of 1934,
as amended, and the rules and regulations thereunder, including, without
limitation, Regulation M of the Exchange Act, which may limit the timing of
purchases and sales of any of the Common Shares by the selling shareholders and
any other participating person. Regulation M may also restrict the
ability of any person engaged in the distribution of the Common Shares to engage
in market-making activities with respect to the Common Shares. All of
the foregoing may affect the marketability of the Common Shares and the ability
of any person or entity to engage in market-making activities with respect to
the Common Shares.
We will
pay all expenses of the registration of the Common Shares pursuant to the
registration rights agreement, estimated to be $[ ]
in total, including, without limitation, Securities and Exchange Commission
filing fees and expenses of compliance with state securities or “blue sky” laws;
provided, however, that the selling shareholders will pay all underwriting
discounts and selling commissions, if any. We have agreed to
indemnify the selling shareholders against liabilities, including some
liabilities under the Securities Act, in accordance with the registration rights
agreements, or the selling shareholders may be entitled to
contribution. The selling shareholders have agreed to indemnify us
against civil liabilities, including liabilities under the Securities Act, that
may arise from any written information furnished to us by the selling
shareholders specifically for use in this prospectus, in accordance with the
related registration rights agreement, or we may be entitled to
contribution.
Once sold
under the shelf registration statement, of which this prospectus forms a part,
the Common Shares will be freely tradable in the hands of persons other than our
affiliates.
