Exhibit 4.5
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "AGREEMENT") is made as of
September 13, 2002, between Apollo Gold Corporation (the "COMPANY") and BMO
Xxxxxxx Xxxxx Inc. ("BMO"), acting on behalf of and for the benefit of each of
the Holders. Certain capitalized terms used in this Agreement without
definition shall have the meanings given them in Section 8 hereof.
PREAMBLE
A. The Holders are acquiring 4,963,000 special warrants (the "SPECIAL
WARRANTS") at the price of Cdn$2.20 per Special Warrant for aggregate gross
proceeds of Cdn$10,918,600 pursuant to the Special Warrant Subscription
Agreements executed by Canadian purchasers and the Special Warrant Purchase
Agreements executed by United States purchasers (collectively, the "PURCHASE
AGREEMENTS"), dated as of the date hereof, between the Company and each of the
Holders. Each Special Warrant is exercisable into one common share of the
Company (the "COMMON STOCK") for no additional consideration by the Holders at
any time on or before 5:00 p.m. (Toronto time) on the earlier of: (i) the fifth
business day after a receipt is issued by the last of the securities commissions
or similar regulatory authorities in each of the offering jurisdictions in
Canada within which Canadian purchasers of Special Warrants are resident for a
(final) short form prospectus qualifying the issue of Common Stock to be issued
upon the exercise of the Special Warrants; and (ii) the first Business Day
following the date which is four months after the Closing Date.
B. In connection with the purchase and sale of the Special Warrants,
the Company and BMO, for the benefit of the Holders, desire to enter into this
Agreement in order to set forth the rights of the Holders to register shares of
the Company's Common Stock issued or issuable to them and certain other matters
as set forth herein.
NOW, THEREFORE, in consideration of the mutual agreements set forth herein,
the Company and BMO, acting on behalf of and for the benefit of the Holders,
hereby agree as follows:
1. Demand Registration
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1.1 Notice of Registration. At any time during the period (a)
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beginning on the date the Common Stock is listed on (i) a National
Securities Exchange or (ii) Nasdaq, and (b) ending on the second
anniversary of the Closing Date, Holders representing at least 30% of the
shares of Common Stock underlying the Special Warrants or BMO for and on
behalf of the Holders may demand that a registration statement be filed
with the Commission within 60 days after the date on which the Company has
received such request. Subject to the terms and conditions set forth below
in this Section 1 and Section 3, upon the Company's receipt from the
requisite Holders or BMO of a written request that the Company effect a
registration under the Securities Act with respect to its
Registrable Securities, the Company will, as expeditiously as possible,
notify the Holders and BMO in writing of such request and use its diligent
best efforts to effect all such registrations (including, without
limitation, the execution of an undertaking to file post-effective
amendments and appropriate qualifications and approvals under the laws and
regulations of any applicable governmental agencies and authorities,
including applicable blue sky or other state securities laws that are
applicable to the Company) as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of the
Registrable Securities as are specified in such request, provided, (a) that
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before filing any such registration statement or any amendments or
supplements thereto, the Company will (i) furnish to the Holders of
Registrable Securities which are to be included in such registration and
BMO copies of all such documents proposed to be filed, which documents will
be subject to the review of the Holders and their counsel, and (ii) give
the Holders of Registrable Securities to be included in such registration
statement, BMO and their representatives the opportunity to conduct a
reasonable investigation of the records and business of the Company and to
participate in the preparation of any such registration statement or any
amendments or supplements thereto; and (b) the Company shall not be
obligated to take any action to effect such registration pursuant to this
Section 1.1 after the Company has effected two such registrations pursuant
to this Section 1.1 at the request of the Holders; provided, that such
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registration has been declared or ordered effective by the Commission and,
if the method of distribution is a registered public offering involving an
underwritten offering, all such shares registered thereby shall have been
sold pursuant thereto.
1.2 Registration Statement. Subject to Section 1.1 above and the
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other terms and conditions contained herein, the Company shall file a
registration statement covering the Registrable Securities so requested to
be registered as soon as practical, but in any event within 60 days after
receipt of the request of the Holders or BMO; provided, that if the Company
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shall furnish to the Holders and BMO a certificate signed by the President
of the Company stating that in the good faith judgment and upon the consent
of a majority of the Board of Directors it would require the disclosure of
material non-public information about the Company, the disclosure of which
could be seriously detrimental to the business or financial condition of
the Company or to negotiations in which it is engaged for such registration
statement to be filed at the date filing would be required under Section
1.1 and it is therefore desirable to defer the filing of such registration
statement, in which case the Company shall have a single additional period
of not more than 60 days within which to file such registration statement.
1.3 Registered Public Offering Involving an Underwriting. If the
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Holders or BMO intend to distribute the Registrable Securities covered by
their request under Section 1.1 by means of an underwriting, they shall so
advise the Company as a part of their request made pursuant to Section 1.1.
In such event, the Holders shall negotiate in good faith with an
underwriter or underwriters selected by the Holders or BMO acting on behalf
of and for the benefit of the Holders with regard to the underwriting of
such requested registration. The Company shall (together with all Holders
proposing to distribute their securities through such underwriting) enter
into an underwriting agreement in customary form with the underwriter or
underwriters selected pursuant to this Section 1.3. Notwithstanding any
other provision of this Section 1.3, if the
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underwriter determines that marketing factors require a limitation on the
number of shares to be underwritten, the underwriter may (subject to the
allocation priority set forth below) limit the number of Registrable
Securities to be included in the registration and underwriting. The Company
shall so advise BMO and all Holders, and the number of shares of securities
that are entitled to be included in the registration and underwriting shall
be allocated among all Holders, and any reduction among such Holders shall
be pro rata among all such persons and, for purposes of making any such
reduction, each Holder which is a partnership, together with the
affiliates, partners, employees, retired partners and retired employees of
such Holder, the estates and family members of any such partners,
employees, retired partners and retired employees and of their spouses, and
any trusts for the benefit of any of the foregoing persons shall be deemed
to be a single "person," and any pro rata reduction with respect to such
"person" shall be based upon the aggregate number of Registrable Securities
owned by all entities and individuals included as such "person", as defined
in this sentence (and the aggregate number so allocated to such "person"
shall be allocated among the entities and individuals included in such
"person" in such manner as such Holder may reasonably determine). To
facilitate the allocation of shares in accordance with the above
provisions, the underwriter or underwriters may round the number of shares
allocated to the Holders to the nearest one hundred shares. If any Holder
of Registrable Securities disapproves of the terms of the underwriting, it
may elect to withdraw therefrom by written notice to the Company, the
underwriter and the other Holders. In the event of any such withdrawal, the
Company will include in any such registration in lieu thereof any
additional shares of Registrable Securities which were requested to be
included by a Holder and which were excluded pursuant to the
above-described underwriter limitation up to the maximum set by such
underwriter.
2. Expenses of Registration. The Company will bear all reasonable
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expenses incurred in connection with registrations pursuant to Section 1,
including without limitation all registration, filing and qualification fees,
printing expenses, fees and disbursements of counsel for the Company and
expenses of any special audits of the Company's financial statements incidental
to or required by such registration, fees of the National Association of
Securities Dealers, Inc., transfer taxes, fees of transfer agents and
registrars' fees, but the Company will not pay underwriters' fees, discounts or
commissions relating to the Registrable Securities.
3. Registration Procedures. If and whenever the Company is required
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by the provisions of Section 1 to use its best efforts to effect the
registration of any Registrable Securities under the Securities Act, the Company
will, as expeditiously as possible:
(a) furnish to a single representative of the Holders, who shall
initially be BMO or such other person or entity as the Company is
instructed by BMO acting on behalf of and for the benefit of a majority of
the Holders, or directly by a majority of the Holders in writing (the
"REPRESENTATIVE") and to each managing underwriter, if any, a reasonable
time in advance of their filing with the Commission any registration
statement, amendment or supplement thereto, and any prospectus used in
connection therewith, and the Representative shall have the opportunity to
object to any information pertaining to it, the Holders and its plan of
distribution that is contained therein and the Company will make the
corrections reasonably required by such Representative or
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Holder with respect to such information prior to filing any such
registration statement or any amendment or supplement thereto, and if
requested in writing by the Representative, and furnish a copy of any and
all transmittal letters or other correspondence with the Commission or any
other governmental agency or self-regulatory body or other body having
jurisdiction (including any domestic or foreign securities exchange)
relating to such offering;
(b) prepare and file with the Commission a registration statement
(which shall be on a registration statement form which is sufficient to
permit the sale or other disposition of any or all shares of Common Stock
to be included therein in accordance with the intended method of sale or
other distribution stated by the initiating Holders, including a "shelf"
registration statement under Rule 415 under the Securities Act or any
successor provision) with respect to such securities and use its best
efforts to cause such registration statement to become effective as soon as
practicable and to remain effective for the period of the distribution
contemplated thereby (determined as hereinafter provided);
(c) furnish to each seller of Registrable Securities, BMO and to
each underwriter, if any such number of copies of the registration
statements, each amendment and supplement thereto (and, if requested in
writing, all exhibits thereto and documents incorporated by reference
therein) and the prospectus included therein (including each preliminary
prospectus and prospectus) and any other prospectus filed under Rule 424
promulgated under the Securities Act relating to the Registrable Securities
and such other documents as such persons reasonably may request in order to
facilitate the public sale or other disposition of the Registrable
Securities covered by such registration statement;
(d) after the filing of the registration statement, on the day of
receipt of knowledge thereof notify each seller of Registrable Securities,
BMO and each managing underwriter, if any, of any stop order issued or, to
the knowledge of the Company, threatened to be issued by the Commission and
promptly take all reasonably necessary actions to prevent the entry of such
stop order or to remove it if entered;
(e) use its commercially reasonable best efforts to register or
qualify the Registrable Securities covered by such registration statement
under the securities or "blue sky" laws of any state as the sellers of
Registrable Securities, or, in the case of an underwritten public offering,
the managing underwriter or underwriters reasonably shall request, and use
its commercially reasonable best efforts to obtain all appropriate
registrations, permits and consents required in connection therewith, and
to keep such registrations, qualifications, permits and consents in effect
for so long as such registration statement remains in effect and to take
any other action which may be reasonably necessary to enable a seller of
Registrable Securities to consummate the disposition in such jurisdictions
of such securities; provided, however, that the Company shall not for any
such purpose be required to qualify generally to transact business as a
foreign corporation in any jurisdiction where it is not so qualified or to
consent to general service of process in any such jurisdiction;
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(f) use its commercially reasonable best efforts to list the
Registrable Securities covered by such registration statement with (i) any
National Securities Exchange or (ii) Nasdaq, as may be the case, on which
the Common Stock of the Company is then listed;
(g) furnish, in a timely fashion, unlegended certificates (to the
extent permitted by the securities laws) representing ownership of the
Registrable Securities being sold in such denominations as shall be
requested by the Representative, the sellers of Registrable Securities or
the managing underwriter or underwriters, if any;
(h) on the day of receipt of knowledge thereof, inform BMO, each
seller of Registrable Securities and the managing underwriter or
underwriters, if any, (i) of the date on which a registration statement or
any post-effective amendment thereto has been filed and when the same has
become effective and, if applicable, of the date of filing a Rule 430A
prospectus, or (ii) of the receipt by the Company of any notification with
respect to the suspension of the qualification of any Registrable
Securities for sale under the applicable securities or blue sky laws of any
jurisdiction and as soon as practicable after receipt of knowledge thereof
inform each seller and the managing underwriter or underwriters, if any, of
any written comments from the Commission with respect to any filing
referred to in clause (i) and of any request by the Commission, any
securities exchange, government agency, self-regulatory body or other body
having jurisdiction for any amendment of or supplement to any registration
statement or preliminary prospectus or prospectus included therein or any
offering memorandum or other offering document relating to such offering;
(i) on the day of receipt of knowledge thereof notify the
Representative, BMO and each underwriter under such registration statement,
at any time when a prospectus relating thereto is required by law to be
delivered in connection with sales by an underwriter or dealer, of the
occurrence of an event requiring the preparation of a supplement or
amendment to such prospectus so that, as thereafter delivered to the
purchasers of such Registrable Securities such prospectus will not contain
an untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, and as promptly as practicable make available to each seller of
Registrable Securities and to each managing underwriter, if any, any such
supplement or amendment. In the event the Company shall give such notice,
the Company shall extend the period during which such registration
statement shall be maintained effective as provided in Section 3(b) hereof
by the number of days during the period from and including the date of the
giving of such notice to the date when the Company shall make available to
such sellers such supplemented or amended prospectus;
(j) upon written request, make available for inspection by each
seller of Registrable Securities, any underwriter participating in any
distribution pursuant to such registration statement, and any attorney,
accountant or other agent retained by such seller or underwriter, financial
and other records, pertinent corporate documents and properties of the
Company, and cause the Company's officers, directors and employees to
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supply information reasonably requested by such seller, underwriter,
attorney, accountant or agent in connection with such registration
statement;
(k) enter into customary agreements (including an underwriting
agreement in customary form) and take such other actions as are reasonably
required in order to expedite or facilitate the sale of such securities,
including having one of its senior executives appear at no more than two
"roadshow" meetings to be held in New York City;
(l) provide a transfer agent and registrar, and a CUSIP number,
for all Registrable Securities covered by such registration statement not
later than the effective date of such registration statement; and
(m) provide signed counterparts, addressed to BMO, the
underwriter or underwriters, if any, and to each Holder, of an opinion of
the Company's counsel and a "cold comfort" letter of the Company's
independent certified public accountants with respect to the matters
customarily covered in such documents delivered to underwriters in
underwritten public offerings.
In connection with each registration hereunder, the sellers of Registrable
Securities will furnish to the Company in writing such information with respect
to themselves and the proposed distribution by them as reasonably shall be
necessary in order to assure compliance with federal and applicable state
securities laws.
In connection with each registration pursuant to Section 1 covering an
underwritten public offering, the Company and each Holder agrees to enter into a
written agreement with the managing underwriter selected in the manner herein
provided in such form and containing such provisions as are customary in the
securities business for such an arrangement between such underwriter and
companies of the Company's size and investment stature.
For purposes of Section 3(b) hereof, the period of distribution of
Registrable Securities in a firm commitment underwritten public offering shall
be deemed to extend until the earlier of the sale of all Registrable Securities
covered thereby or twelve months after the effective date thereof, and the
period of distribution of Registrable Securities in any other registration shall
be deemed to extend until the earlier of the sale of all Registrable Securities
covered thereby or nine months after the effective date thereof.
4. Indemnification.
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4.1 Indemnity by the Company. If the Company registers any
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Registrable Securities held by a Holder under the Securities Act pursuant
to Section 1, the Company will indemnify and hold harmless BMO, the Holder,
and each other person, if any, who controls the Holder, and each
underwriter, if any, and each person who controls any underwriter within
the meaning of Section 15 of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which BMO, the Holder,
the underwriter, if any, or such controlling persons may become subject
under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue
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statement of any material fact contained in any registration statement
under which such Registrable Securities were registered under the
Securities Act, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereof, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, or any violation by the Company of any rule or
regulation promulgated under the Securities Act or any state securities law
applicable to the Company and relating to action or inaction required of
the Company in connection with any such registration, and will reimburse
BMO, the Holder and the underwriter, their respective officers, directors
and partners, and each person controlling the Holder and the underwriter,
for any reasonable legal and any other expenses incurred in connection with
investigating, defending or settling any such claim, loss, damage,
liability or action, provided that the Company will not be liable in any
such case to the extent that any such claim, loss, damage or liability
arises out of or is based on any untrue statement or omission based upon
written information furnished to the Company by BMO, the Holder or the
underwriter specifically for use therein.
4.2 Indemnity by the Holder. Each Holder will, if Registrable
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Securities held by or issuable to the Holder are included in the securities
as to which such registration is being effected, indemnify and hold
harmless the Company, each of its directors, each officer who signs the
registration statement, each underwriter, if any, of the Company's
securities covered by such a registration statement, each person who
controls the Company and each underwriter within the meaning of the
Securities Act, against all claims, losses, expenses, damages and
liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained
in any such registration statement, prospectus, offering circular or other
document made in writing by the Holder, or any omission (or alleged
omission) by the Holder to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
and will reimburse the Company, such directors, officers, partners, persons
or underwriters for any reasonable legal or any other expenses incurred by
them in connection with investigating, defending or settling any such
claim, loss, damage, liability or action, in each case to the extent, but
only to the extent, that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) is made in such registration
statement, prospectus, offering circular or other document in reliance upon
and in conformity with written information furnished to the Company by the
Holder specifically for use therein; provided, that the total amount for
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which the Holder, its officers, directors and partners, and any person
controlling the Holder, shall be liable under this Section 4.2 shall not in
any event exceed the proceeds (net of underwriting discounts and
commissions) received by the Holder from the sale of Registrable Securities
sold by the Holder in such registration.
4.3 Notice by the Indemnified Party. Each party entitled to
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indemnification under this Section 4 (the "INDEMNIFIED PARTY") shall give
notice to the party required to provide indemnification (the "INDEMNIFYING
PARTY") promptly after such Indemnified Party has actual knowledge of any
claims as to which indemnity may be sought, and shall permit the
Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct
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the defense of such claim or litigation, shall be approved by the
Indemnified Party (whose approval shall not be unreasonably withheld), and
the Indemnified Party may participate in such defense at such party's
expense, and provided further that the failure of any Indemnified Party to
give notice as provided herein shall not relieve the Indemnifying Party of
its obligations hereunder, unless such failure resulted in actual detriment
to the Indemnifying Party. Each Indemnified Party shall furnish such
information regarding itself or the claim in question as an Indemnifying
Party may reasonably request and as shall be reasonably required in
connection with defense of such claim and litigation resulting therefrom.
An Indemnified Party shall have the right to retain its own counsel, with
the fees and expenses to be paid by the Indemnifying Party, if
representation of such Indemnified Party by the counsel retained by the
Indemnifying Party would be inappropriate due to actual or potential
differing interests between such Indemnified Party and any other party
represented by such counsel in such proceeding, provided that in no event
shall the Indemnifying Party be required to pay the fees and expenses of
more than one such separate counsel for all Indemnified Parties. No
Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement which 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.
4.4 Contribution. If the indemnification provided for in this
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Section is held by a court of competent jurisdiction to be unavailable to
an Indemnified Party with respect to any loss, liability, claim, damage or
expense referred to therein, then the Indemnifying Party, in lieu of
indemnifying such Indemnified Party thereunder, shall contribute to the
amount paid or payable by such Indemnified Party as a result of such loss,
liability, claim, damage or expense in such proportion as is appropriate to
reflect the relative fault of the Indemnifying Party on the one hand and of
the Indemnified Party on the other hand in connection with the statements
or omissions which resulted in such loss, liability, claim, damage or
expense as well as any other relevant equitable considerations. The
relevant fault of the Indemnifying Party and the Indemnified Party shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission to state a
material fact relates to information supplied by the Indemnifying Party or
by the Indemnified Party and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission. Notwithstanding the foregoing, the amount that the Holder
shall be obligated to contribute pursuant to this Section 4.4 shall be
limited to an amount equal to the proceeds to the Holder of the Registrable
Securities sold pursuant to the registration statement which gives rise to
such obligation to contribute (less the aggregate amount of any damages
which the Holder has otherwise been required to pay in respect of such
loss, claim, damage, liability or action or any substantially similar loss,
claim, damage, liability or action arising from the sale of such
Registrable Securities).
4.5 Survival of Indemnity. The indemnification and contribution
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provided by this Section shall be a continuing right to indemnification and
shall survive the registration and sale of any securities by any person
entitled to indemnification under this Agreement.
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5. Holders' Cooperation.
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5.1 Information Regarding Holders. Each Holder shall promptly
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furnish to the Company such information regarding the Holder and the
distribution proposed by the Holder as the Company may request in writing
and as shall be required in connection with any registration referred to
herein.
5.2 Obligations of the Holders. The Holders will not (until
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further notice by the Company) effect sales thereof (or deliver a
prospectus to any purchaser) after receipt of telegraphic or written notice
from the Company to suspend sales to permit the Company to correct or
update a registration statement or prospectus. At the end of the period
during which the Company is obligated to keep any registration statement
filed under Section 1 current and effective as required by applicable law,
the Holders shall discontinue sales of shares pursuant to such registration
statement upon receipt of notice from the Company of its intention to
remove from registration the shares of Registrable Securities covered by
such registration statement that remain unsold, and the Holders shall
notify the Company of the number of such shares registered that remain
unsold immediately upon receipt of such notice from the Company.
6. Rule 144. With a view to making available to the Holders the
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benefits of certain rules and regulations of the Commission which may permit the
sale of the Restricted Securities to the public without registration, beginning
on the date the Common Stock is listed on (i) a National Securities Exchange or
(ii) Nasdaq, the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144; and
(b) use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act.
7. Representations and Warranties of the Company. The Company
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represents and warrants to the Holders as follows:
7.1 The execution, delivery and performance of this Agreement by
the Company have been duly authorized by all requisite corporate action and
will not violate any provision of law, any order of any court or other
agency of government, the articles of incorporation or bylaws of the
Company or any provision of any indenture, agreement or other instrument to
which it or any of its properties or assets is bound, conflict with, result
in a breach of or constitute (with due notice or lapse of time or both) a
default under any such indenture, agreement or other instrument or result
in the creation or imposition of any lien, charge or encumbrance of any
nature whatsoever upon any of the properties or assets of the Company.
7.2 This Agreement has been duly executed and delivered by the
Company and constitutes the legal, valid and binding obligation of the
Company, enforceable in accordance with its terms, subject to (i)
applicable bankruptcy, insolvency, reorganization, fraudulent conveyance
and moratorium laws and other laws of general
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application affecting enforcement of creditors' rights generally and (ii)
the availability of equitable remedies as such remedies may be limited by
equitable principles of general applicability (regardless of whether
enforcement is sought in a proceeding in equity or at law).
8. Definitions. As used in this Agreement, the following terms shall
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have the following meanings:
a. "AFFILIATE" shall have the meaning given to it under Rule 405 of
the Securities Act.
b. "BUSINESS DAY" means a day, other than Saturdays, Sundays and
statutory holidays, when the banks conducting business in the
City of Toronto are generally open for the transaction of banking
business.
c. "CDN$" shall mean dollars in the lawful currency of Canada.
d. "CLOSING DATE" shall mean September 12, 2002 or such other
date(s) as may be agreed upon by BMO, Yorkton Securities Inc. and
the Company.
e. "COMMISSION" shall mean the U.S. Securities and Exchange
Commission, or any other federal agency at the time administering
the Securities Act.
f. "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, or any similar United States statute and the rules and
regulations thereunder, all as the same shall be in effect at the
time.
g. "HOLDER" or "HOLDERS" shall mean each of the U.S. Investors or
Canadian Subscribers (as defined in the Purchase Agreements) or
an individual U.S. Investor or Canadian Subscriber (as defined in
the Purchase Agreements), as the case may be, and, if applicable,
any other person who holds Restricted Securities.
h. "NASDAQ" shall mean The Nasdaq Stock Market, Inc.
i. "NATIONAL SECURITIES EXCHANGE" shall mean a securities exchange
registered as a national securities exchange under the Exchange
Act.
j. "REGISTER," "REGISTERED" and "REGISTRATION" shall refer to a
registration effected by preparing and filing a registration
statement in compliance with the Securities Act, and the
declaration or ordering of the effectiveness of such registration
statement, and compliance with applicable state securities laws
of such states in which the Holder notifies the Company of its
intention to offer Registrable Securities.
k. "REGISTRABLE SECURITIES" shall mean any shares of Common Stock
issuable or issued upon due exercise of the Special Warrants;
provided, however, that Registrable Securities shall only be
treated as Registrable
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Securities if and so long as, they have not been (A) sold to or
through a broker or dealer or underwriter in a United States
public distribution or a United States public securities
transaction or (B) sold in a transaction exempt from the
registration and prospectus delivery requirements of the
Securities Act so that all U.S. transfer restrictions and
restrictive legends with respect thereto are removed upon the
consummation of such sale.
l. "RESTRICTED SECURITIES" shall mean the Special Warrants and any
shares of Common Stock issuable upon due exercise of the Special
Warrants only to the extent the same have not been sold to the
public in the United States. As to any particular Restricted
Securities, such securities shall cease to be Restricted
Securities when (i) a registration statement with respect to the
sale of such securities shall have become effective under the
Securities Act and such securities shall have been disposed of
under such registration statement, (ii) such securities shall
have become eligible for resale pursuant to Rule 144(k) and any
restrictive legend on certificates representing such securities
shall have been removed, (iii) such securities shall have been
otherwise transferred or disposed of, and subsequent transfer or
disposition of them shall not require their registration or
qualification under the Securities Act or any similar state law
then in force or compliance with Rule 144, or (iv) such
securities shall have ceased to be outstanding.
m. "RULE 144" shall mean Rule 144 under the Securities Act or any
successor or similar rule as may be enacted by the Commission
from time to time.
n. "SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, or any similar United States statute and the rules and
regulations thereunder, all as the same shall be in effect at the
time.
9. Miscellaneous.
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9.1 Amendments. This Agreement may be amended only by a written
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instrument executed by (a) the Holders or by BMO acting on behalf of and
for the benefit of the Holders and (b) the Company.
9.2 Counterparts. This Agreement may be executed in any number of
------------
counterparts, all of which shall constitute a single instrument.
9.3 Notices. Any notice, demand, request, waiver or other
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communication required or permitted to be given hereunder shall be in
writing and shall be deemed to be delivered when received by certified
mail, postage prepaid, return receipt requested, when delivered by an
expedited delivery service or when sent by facsimile or e-mail after
confirmation. All notices shall be directed to the parties at the
respective addresses set forth below or to such other address as either
party may, from time to time, designate by notice to the other party:
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If to the Company: 000 Xxxxx Xxxxxx Xxxx
Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx X0X 0X0
Attn: Chief Financial Officer
Tel: (000) 000-0000
Fax: (000) 000-0000
With copies to: Fogler, Xxxxxxxx XXX
Xxxxx 0000, X.X. Xxx 00
Xxxxx Trust Tower Toronto-Dominion Centre
Toronto, ON M5K 1G8
Attn: Avi Xxxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
If to Investors: BMO Xxxxxxx Xxxxx Inc.
Investment and Corporate Banking
1 First Canadian Place
5th Floor, P.O. Box 150
Toronto, ON M5X 1H3
Attn: Xxxxxx Xxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
With copies to: White & Case LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
9.4 Assignability. This Agreement and all of the provisions
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hereof shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns. Neither this
Agreement nor any rights, duties or obligations hereunder shall be assigned
by any party hereto without the prior written consent of the other parties
hereto, except that vested rights to receive payment or to initiate legal
action with respect to causes of action that have accrued hereunder shall
be assignable by devise, descent or operation of law.
9.5 Severability. If any provision of this Agreement shall be
------------
held to be illegal, invalid or unenforceable, such illegality, invalidity
or unenforceability shall attach only to such provision and shall not in
any manner affect or render illegal, invalid or unenforceable any other
provision of this Agreement, and this Agreement shall be carried out as if
any such illegal, invalid or unenforceable provision were not contained
herein.
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9.6 Governing Law; Venue. (a) This Agreement shall be governed by
--------------------
and construed under the laws of the State of New York without regard to
principles of conflict of law. Each of the parties hereby (i) irrevocably
consents and agrees that any legal or equitable action or proceeding
arising under or in connection with this Agreement shall be brought
exclusively in the Federal or state courts sitting in New York, New York,
and any court to which an appeal may be taken in any such litigation, and
(ii) by execution and delivery of this Agreement, irrevocably submits to
and accepts, with respect to any such action or proceeding, for itself and
in respect of its properties and assets, generally and unconditionally, the
jurisdiction of the aforesaid courts, and irrevocably waives any and all
rights such party may now or hereafter have to object to such jurisdiction.
(b) Each of the Company and the other parties hereto waives its
right to a jury trial with respect to any action or claim arising out of
any dispute in connection with this agreement, any rights or obligations
hereunder or the performance of such rights and obligations. Each of the
Company and the other parties hereto (i) certifies that no representative,
agent or attorney of any party hereto has represented, expressly or
otherwise, that such party would not, in the event of litigation, seek to
enforce the foregoing waivers and (ii) acknowledges that the parties hereto
have been induced to enter into this Agreement by, among other things, the
waivers and certifications contained herein.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
THE COMPANY:
APOLLO GOLD CORPORATION
By: /s/
-------------------------------
Name:
Title:
THE HOLDERS:
By: BMO XXXXXXX XXXXX INC.
By: /s/
-------------------------------
Name:
Title:
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