EXHIBIT 4.29
Agency Agreement dated September 26, 2005
between
Canaccord Capital Corporation and
Centrasia Mining Corp.
AGENCY OFFERING AGREEMENT - SHORT FORM (UNITS)
THIS AGREEMENT dated for reference September 26, 2005 is made
BETWEEN
CENTRASIAMINING CORP., 0000-0000 Xxxx Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
(the "Issuer");
AND
CANACCORDCAPITAL CORPORATION, 0000-000 Xxxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
(the "Agent").
WHEREAS:
A. The Issuer wishes to raise money for the purposes set forth in its
Short Form, which is to be filed with the TSX Venture Exchange Inc., by offering
for sale certain of its securities; and
B. The Issuer wishes to appoint the Agent to distribute those securities
and the Agent is willing to accept the appointment on the terms and conditions
of this Agreement;
THE PARTIES to this Agreement therefore agree:
1. DEFINITIONS
In this Agreement, including the recitals above, the following terms have the
following meanings:
(a) "Agent's Option" means the option to purchase Agent's Option
Units of the Issuer to be issued to the Agent as part of the
Agent's compensation;
(b) "Agent's Option Units" means the units which may be issued to
the Agent on exercise of the Agent's Option;
(c) "Agent's Option Warrants" means the non-transferable warrants
of the Issuer which will be issued as part of the Agent's
Option Units and which have the terms provided in this
Agreement and the certificates representing such share
purchase warrants;
(d) "Agent's Option Shares" means the previous unissued common
shares of the Issuer which will be issued as part of the
Agent's Option Units and which have the terms provided in this
Agreement and the certificates representing such shares;
(e) "Agent's Option Warrant Shares" means the previous unissued
common shares of the Issuer which will be issued as part of
the Agent's Option Warrants and which have the terms provided
in this Agreement and the certificates representing such
shares;
-2-
(f) "Agent's Shares" means the previously unissued common shares
in the capital of the Issuer, as presently constituted, which
may be issued as part of the Agent's Units, if applicable;
(g) "Agent's Warrants" means the non-transferable warrants of the
Issuer that may be issued as part of the Agent's Units or as
part of the Agent's compensation, if applicable;
(h) "Agent's Warrant Shares" means common shares in the capital of
the Issuer that may be issued on exercise of the Agent's
Warrants, if applicable;
(i) "Agent's Units" means the units which may be issued to the
Agent, at the Agent's election, in partial payment of the
Agent's Commission which will have the same terms as the
Units, if applicable;
(j) "AIF" has the meaning defined in the NI 45-106;
(k) "Applicable Legislation" means the securities acts or
comparable legislation in each of the Selling Jurisdictions,
the regulations and rules made under that legislation, and all
administrative policy statements, blanket orders, notices,
directions, instruments and rulings issued by the Commissions;
(l) "Certificates" means the certificates representing the Shares
and Warrants forming part of the Units in the names and
denominations reasonably requested by the Agent and the
certificates representing the Agent's Shares, the Agent's
Warrants, the Agent's Option Shares, the Agent's Option
Warrants, the Corporate Finance Shares and the Corporate
Finance Warrants;
(m) "Certification Date" means the date that the Agent signs the
agent's certificate in the Short Form;
(n) "Closing" means the completion of the purchase and sale and
the issuance by the Issuer of the Units;
(o) "Closing Day" means the fifth business day after the Offering
Day or such other day as the parties may agree;
(p) "Commissions" means the securities commissions in each of the
Selling Jurisdictions;
(q) "Continuous Disclosure Record" means all documents that the
Issuer is required to and has filed with the Commissions in
each of the Selling Jurisdictions in which the Issuer is a
reporting issuer, including without limitation annual and
interim financial statements, annual and quarterly reports,
annual information forms, press releases, material change
reports and technical reports;
-3-
(r) "Corporate Finance Fee" means the fee to be paid to the Agent
by the Issuer in consideration of corporate finance and
related services provided by the Agent;
(s) "Corporate Finance Shares" means the previously unissued
common shares of the Issuer which will be issued as part of
the Corporate Finance Units;
(t) "Corporate Finance Units" means the units of the Issuer to be
issued to the Agent by the Issuer as part of the Corporate
Finance Fee;
(u) "Corporate Finance Warrants" means the share purchase warrants
of the Issuer which will be issued as part of the Corporate
Finance Units and which have the terms provided in this
Agreement and the certificates representing such share
purchase warrants;
(v) "Corporate Finance Warrant Shares" means the previously
unissued common shares in the capital of the Issuer, as
presently constituted, which will be issued upon the exercise
of the Corporate Finance Warrants;
(w) "Distribution" means the issue of the Securities pursuant to
this Agreement;
(x) "Effective Date" means the date on which a notice accepting
the Short Form is issued by the Exchange;
(y) "Exchange" means the TSX Venture Exchange Inc.;
(z) "Exchange Policy" means a policy contained in the Exchange's
Corporate Finance Manual;
(aa) "Exercise Price" means $0.78 per Warrant Share;
(bb) "Gross Proceeds" has the meaning defined in the NI 45-106;
(cc) "Listed Security" has the meaning defined in the NI 45-106;
(dd) "Material Change" has the meaning defined in the Applicable
Legislation;
(ee) "Material Fact" has the meaning defined in the Applicable
Legislation;
(ff) "Misrepresentation" has the meaning defined in the Applicable
Legislation;
(gg) "NI 45-102" means National Instrument 45-102 or any successor
instrument;
(hh) "NI 45-106" means National Instrument 45-106 and any successor
instrument;
(ii) "News Release" means a news release announcing the Offering;
(jj) "Offering" means the offering of the Units under the Short
Form;
(kk) "Offering Day" means the day chosen by the Agent to contract
the purchases of Units by the purchasers;
-4-
(ll) "Offered Securities" means the Units, Shares, Warrants and any
Warrant Shares;
(mm) "Offering Price" means $0.65 per Unit;
(nn) "Prior Offering" means a distribution of securities by the
Issuer under a Short Form that was completed during the 12
month period immediately preceding the date of the Short Form
contemplated under this Agreement;
(oo) "Proceeds" means the gross proceeds of the Offering, less:
(i) the Agent's Commission which is payable in cash;
(ii) the Administration Fee;
(iii) the expenses of the Agent in connection with the
Offering which have not been paid by the Issuer;
(iv) any amount held back by the Agent in connection with
further expenses related to the Offering; and
(v) any amount already received by the Issuer;
(pp) "Regulatory Authorities" means the Commissions and the
Exchange;
(qq) "Securities" means the Offered Securities, the Agents Units,
the Agent's Shares, the Agent's Warrants, the Agent's Warrant
Shares, the Agent's Option, the Agent's Option Shares, the
Agent's Option Warrants, the Agent's Option Warrant Shares,
the Corporate Finance Units, the Corporate Finance Shares, the
Corporate Finance Warrants and the Corporate Finance Warrant
Shares;
(rr) "Selling Jurisdictions" means the provincial and territorial
jurisdictions of Canada with the exception of Ontario;
(ss) "Share" means a previously unissued common share in the
capital of the Issuer, as presently constituted, which will be
issued as part of a Unit, to be distributed under the Short
Form;
(tt) "Short Form" means a short form offering document prepared in
accordance with the Short Form Policy, including all documents
incorporated by reference therein and any Subsequently
Triggered Reports;
(uu) "Short Form Policy" means Exchange Policy No. 4.6 or any
successor policy, and any amendments thereto made in
accordance with NI 45-106;
(vv) "Subsequently Triggered Report" means a material change report
required to be filed with the Commissions no later than 10
days after a Material Change, as a result of a Material Change
that occurs after the date the Short Form is certified but
before the purchaser enters into an agreement of purchase and
sale;
-5-
(ww) "Units" means the minimum of 2,307,692 units and the maximum
of 3,076,923 units, each unit comprised of one Share and one
Warrant, to be distributed under the Short Form;
(xx) "Warrants" means the transferable share purchase warrants of
the Issuer which will be issued as part of the Units and which
have the terms provided in this Agreement and the certificates
representing such share purchase warrants; and
(yy) "Warrant Shares" means the previously unissued common shares
in the capital of the Issuer, as presently constituted, which
will be issued upon the exercise of the Warrants.
2. APPOINTMENT OF AGENT
The Issuer appoints the Agent as its exclusive agent and the Agent accepts the
appointment and will act as the exclusive agent of the Issuer to offer the Units
for sale under the Short Form at the Offering Price on a commercially reasonable
efforts basis.
3. FILING OF SHORT FORM
3.1 The Issuer will cause the Short Form to be filed with the Exchange
within two days of the day the News Release is issued (unless it receives an
extension from the Exchange to file it at a later date), will deliver all
necessary copies of the Short Form to the Exchange and will use its best efforts
to have the Short Form accepted by the Exchange.
3.2 The Issuer will provide the Agent with as many copies of the Short Form
as the Agent reasonably requests.
3.3 The Issuer will file the Short Form and any Subsequently Triggered
Report with all Commissions with which it must file such document in accordance
with NI 45-106.
3.4 Delivery of the Short Form and any Subsequently Triggered Report shall
constitute a representation and warranty by the Issuer to the Agent that all
information and statements (except information and statements supplied by and
relating solely to the Agent) contained in the Short Form, including all
documents incorporated by reference and any Subsequent Triggered Report, are
true and correct in all material respects at the time of delivery thereof and
contain no Misrepresentations and constitute full, true and plain disclosure of
all Material Facts relating to the Issuer and the Securities and that no
Material Fact or material information has been omitted therefrom (except facts
or information supplied and relating solely to the Agent) which is required to
be stated therein or is necessary to make statements of information contained
therein not misleading in light of the circumstances under which they were made.
Such delivery shall also constitute the Issuer's consent to the Agent's use of
the Short Form, any Subsequently Triggered Reports and any other documents
supplied to the Agent by the Issuer for the purpose of the sale of Units in the
Selling Jurisdictions in compliance herewith.
4. CONDUCT OF THE OFFERING
4.1 Prior to the Closing Day, the Issuer will make application to list the
Shares, the Warrants, the Warrant Shares, the Agent's Shares, the Agent's
Warrants, the Agent's Warrant Shares, the Corporate Finance Shares, the
Corporate Finance Warrant Shares, the Agent's Option Shares, the Agent's Option
-6-
Warrants and the Agent's Option Warrant Shares on the Exchange and conditional
approval of such application must be obtained from the Exchange prior to Closing
such that the Shares, the Warrants, the Warrant Shares, the Agent's Shares, the
Agent's Warrants, the Agent's Warrant Shares, the Corporate Finance Shares, the
Corporate Finance Warrants, the Corporate Finance Warrant Shares, the Agent's
Option Shares, the Agent's Option Warrants and the Agent's Option Warrant Shares
are listed and posted for trading upon issuance.
4.2 The Offering Day will be on or before that day which falls 60 days from
the Effective Date.
4.3 The Offering will be made in accordance with the Short Form Policy and
other applicable rules and policies of the Exchange.
4.4 The Agent will advise the Issuer in writing when the distribution of
the Units under the Short Form is complete, and will provide the Exchange with a
list of purchasers as required by the Short Form Policy.
5. OFFERING RESTRICTIONS
5.1 The Agent will not knowingly sell more than:
(a) 20% of the Units to any one purchaser; and
(b) an aggregate of 50% of the Units where such Units would be
subject to a four month hold in accordance with NI 45-106.
5.2 The Agent will only sell Units to persons who represent themselves as
being resident in one of the Selling Jurisdictions or such other jurisdictions
where the Units may lawfully be offered for sale.
6. OPINIONS AND CERTIFICATES
6.1 On the Effective Date, the Issuer will deliver the following documents
to the Agent and its counsel in form and substance acceptable to them:
(a) a copy of the Exchange's letter evidencing acceptance of the
Short Form for filing;
(b) an opinion of counsel for the Issuer, dated as of the
Effective Date and addressed to the Agent and its counsel,
relating to any legal matter in connection with the creation,
issuance and sale of the Securities for which the Agent may
reasonably request an opinion (the "Legal Opinion");
(c) a certificate of the Issuer, dated as of the Effective Date
and signed by two officers of the Issuer, one of whom shall be
the president of the Issuer or another officer approved by the
Agent, certifying certain facts relating to the Issuer and its
affairs (the "Officers' Certificate"); and
-7-
(d) any other certificates, comfort letters or opinions in
connection with any matter related to the Offering which are
reasonably requested by the Agent or its counsel.
6.2 On the Closing the Issuer will provide the Agent and its counsel with
the Legal Opinion and the Officer's Certificate updated to the Closing.
7. AGENT'S COMPENSATION
7.1 In consideration of the services performed by the Agent under this
Agreement, the Issuer will:
(a) pay the Agent a commission of 7.5% of the Offering Price per
Unit sold whether purchased by the Agent for its own account
or for its clients or purchased by other members of the
Exchange for their own accounts or for their clients, in
lawful Canadian currency; or, at the election of the Agent,
7.5% payable by the issuance of up to 230,769 Agent's Units at
a deemed price of $0.65 per Unit (the "Agent's Commission");
and
(b) issue an Agent's Option to the Agent or to members of its
selling group as directed by the Agent entitling the Agent to
purchase Agent's Option Units in an amount equal to 10% of the
Units sold.
7.2 In connection with the Offering, the Issuer agrees to pay a Corporate
Finance Fee to the Agent by the issuance of 100,000 Corporate Finance Units to
the Agent on Closing.
7.3 Each Agent's Unit will consist of one Agent's Share and one Agent's
Warrant.
7.4 The Agent's Warrants will be represented by certificates, and will be
non-transferable except as permitted by Applicable Legislation and any order
granted by the Commissions.
7.5 Two Agent's Warrants will entitle the holder to purchase one common
share of the Issuer. The right to purchase Agent's Warrant Shares may be
exercised at any time up to the close of business 18 months from the Closing
Day, at the Exercise Price.
7.6 Each Corporate Finance Unit will be comprised of one Corporate Finance
Share and one Corporate Finance Warrant.
7.7 Each two Corporate Finance Warrants will entitle the holder to purchase
one Corporate Finance Warrant Share. The right to purchase Corporate Finance
Warrant Shares may be exercised at any time up to the close of business 18
months from the Closing Day, at the Exercise Price.
7.8 One Agent's Option will entitle the holder to purchase one Agent's
Option Unit of the Issuer. The right to purchase Agent's Option Units may be
exercised at any time up to the close of business 18 months from the Closing
Day, at a price of $0.72 per Agent's Option Unit.
7.9 Each Agent's Option Unit will consist of one Agent's Option Share and
one Agent's Option Warrant.
-8-
7.10 Each two Agent's Option Warrants will entitle the holder to purchase
one Agent's Option Warrant Share at any time within 18 months from Closing, at
the Exercise Price.
7.11 The Agent's Option Warrant and the Corporate Finance Warrants will be
represented by certificates, and will be non-transferable except as permitted by
Applicable Legislation and any order granted by the Commissions.
7.12 The terms governing the Agent's Units, the Agent's Option, the Agent's
Option Units and the Corporate Finance Units will include, among other things,
provisions for the appropriate adjustment in the class, number and price of the
Agent's Shares, Agent's Option Shares, the Agent's Option Warrant Shares and
Corporate Finance Shares upon the occurrence of certain events, including any
subdivision, consolidation or reclassification of the shares, the payment of
stock dividends or the amalgamation of the Issuer.
7.13 The issue of the Agent's Option Warrants and Corporate Finance Warrants
will not restrict or prevent the Issuer from obtaining any other financing, or
from issuing additional securities or rights, during the period within which the
Agent's Option Warrants and Corporate Finance Warrants may be exercised.
7.14 The Issuer agrees not to place a U.S. securities law restrictive legend
on the certificates representing the Agent's Option, the Agent's Option Shares,
the Agent's Option Warrants and the Agent's Option Warrant Share, the Corporate
Finance Units, the Corporate Finance Shares, the Corporate Finance Warrants or
the Corporate Finance Warrant Shares.
7.15 In consideration of the Agent's services in connection with the
coordination and review of the Offering and the Short Form, the Issuer will pay
the Agent, on completion or cancellation of the Offering, a fee (the
"Administration Fee"), in the amount of $7,500.
7.16 In the event the Agent is willing to proceed with the Offering but the
Issuer precludes the Agent from completing the Offering, notwithstanding
anything else in this Agreement, the Administration Fee and Corporate Finance
Units shall be paid and issued to the Agent.
8. WARRANTS
8.1 The Warrants will be transferable and registered in accordance with the
instructions of the Agent.
8.2 One Warrant will be issued and delivered for each Unit of the Issuer
offered and purchased under the Short Form.
8.3 The Warrants may be exercised at any time up to the close of business
18 months from the Closing Day.
8.4 Two Warrants will entitle the holder to purchase one additional
previously unissued common share of the Issuer at the Exercise Price.
8.5 The terms governing the Warrants will include, among other things,
provisions for the appropriate adjustment in the class, number and price of the
common shares of the Issuer issuable under the Warrants upon the occurrence of
certain events, including any subdivision, consolidation or reclassification of
the common shares of the Issuer, the payment of stock dividends or the
amalgamation of the Issuer.
-9-
8.6 The Issuer will apply to have the Warrants listed for trading on the
Exchange, subject to meeting all listing requirements including minimum
prescribed distribution requirements.
9. MINIMUM SUBSCRIPTION
9.1 The Offering is subject to a minimum subscription of 2,307,692 Units.
9.2 All funds received by the Agent for subscription will be held in trust
by the Agent until the minimum subscription has been obtained.
9.3 Notwithstanding any other term of this Agreement, all subscription
funds received by the Agent will be returned to the subscribers without
deduction if the minimum subscription is not obtained by 5:00 p.m. on the
Offering Day.
10. CLOSING
10.1 The Closing will take place on the Closing Day.
10.2 On Closing, the Issuer will deliver the Certificates to the Agent
against payment of the Proceeds.
10.3 If the Issuer has satisfied all of its obligations under this
Agreement, on Closing, the Agent will pay the Proceeds to the Issuer, against
delivery of the Certificates.
10.4 The Issuer will endorse the Certificates representing:
(a) Units sold to any purchaser that, at the time the Units are
acquired, is:
(i) an insider;
(ii) a promoter of the Issuer;
(iii) an underwriter of the Issuer; or
(iv) a member of the underwriter's professional group;
(b) that portion of the Units sold to purchasers with an
acquisition cost exceeding $40,000; and
(c) the Agent's Units, the Agent's Shares, the Agent's Warrant
Shares, Agent's Option, the Agent's Option Shares, the Agent's
Option Warrants, the Agent's Option Warrant Shares, the
Corporate Finance Units, the Corporate Finance Shares, the
Corporate Finance Warrants and the Corporate Finance Warrant
Shares;
with the following statements:
-10-
(i) "Unless permitted under securities legislation, the
holder of this security must not trade the security
before [insert the date that is four months and a day
after the Distribution date]"; and
(ii) "Without prior approval of the Exchange and
compliance with all applicable securities
legislation, the securities represented by this
certificate may not be sold, transferred,
hypothecated or otherwise traded on or through the
facilities of the Exchange or otherwise in Canada or
to or for the benefit of a Canadian resident until
[insert the date following the fourth month after the
Distribution date]".
10.5 The obligation of the Agent to pay the Proceeds to the Issuer shall be
subject to the following conditions precedent:
(a) the Issuer shall have performed or complied with each covenant
and obligation herein provided on its part to be performed or
complied with;
(b) each of the representations and warranties of the Issuer
herein shall continue to be true, and the Officers'
Certificate shall contain certification to that effect;
(c) the Issuer shall have, to the satisfaction of the Agent's
counsel, taken or caused to be taken all steps and proceedings
which may be requisite under the Applicable Legislation to
qualify the Distribution on a basis exempt from the prospectus
requirement of the Applicable Legislation, including the
filing and the obtaining of acceptance for the Short Form; and
(d) the Shares, Warrants, the Agent's Shares, the Agent's
Warrants, the Agent's Option Shares, the Agent's Option
Warrants, the Agent's Option Warrant Shares, the Corporate
Finance Shares and the Corporate Finance Warrants will be
listed on the Exchange as of the Closing Day or as soon as
possible thereafter.
10.6 The Issuer will file a report of the Distribution with the Commissions
in the form required by the Applicable Legislation within 10 days of the
completion of the purchase and sale of the Units.
11. MATERIAL CHANGES
11.1 If, after the Certification Date and before the Closing, a Material
Change occurs in the affairs of the Issuer, the Issuer will:
(a) notify the Agent immediately, in writing, with full
particulars of the Material Change;
(b) forthwith disseminate a news release describing the Material
Change;
(c) file with the Regulatory Authorities as soon as practicable,
and in any event no later than 10 days after the change
occurs, a Subsequently Triggered Report and any other relevant
material disclosing the Material Change; and
-11-
(d) provide as many copies of the news release and Subsequently
Triggered Report to the Agent as the Agent may reasonably
request.
11.2 The Issuer shall in good faith discuss with the Agent any fact or
change in circumstances (actual and anticipated, contemplated or threatened,
whether financial or otherwise) which is of such a nature that there is
reasonable doubt as to whether notice in writing need be given to the Agent
pursuant to the previous Subsection.
11.3 The Agent will deliver to the purchasers under the Offering on behalf
of the Issuer a copy of each Subsequently Triggered Report provided to it by the
Issuer under this Section.
12. TERMINATION
12.1 The Agent may terminate its obligations under this Agreement by notice
in writing to the Issuer at any time before the Closing if:
(a) there is an event, accident, governmental law or regulation or
other occurrence of any nature which, in the opinion of the
Agent, seriously affects or will seriously affect the
financial markets or the business of the Issuer or any
subsidiary of the Issuer or the ability of the Agent to
perform its obligations under this Agreement or an investor's
decision to purchase Units;
(b) an adverse Material Change or change in a Material Fact
relating to any of the Securities occurs or is announced by
the Issuer;
(c) following a consideration of the history, business, products,
property or affairs of the Issuer or its principals and
promoters, or the state of the financial markets in general,
or the state of the market for the Issuer's securities in
particular, or the possibility of investors exercising their
statutory rights to withdraw from a purchase of the Issuer's
securities, the Agent determines, in its discretion, that it
is not in the interest of investors to complete the Offering;
(d) the Securities cannot, in the opinion of the Agent, be
profitably marketed due to the state of the financial markets,
or the market for the Units in particular;
(e) an enquiry or investigation (whether formal or informal) in
relation to the Issuer, or the Issuer's directors or officers
or promoters, is commenced or threatened by an officer or
official of any competent authority; or
(f) the Agent is not satisfied, in its sole discretion, with the
results of its due diligence review.
12.2 The Agent may terminate its obligations under this Agreement at any
time if:
(a) any order to cease trading in the securities of the Issuer is
made by a competent regulatory authority and that order is
still in effect;
(b) the Issuer is in breach of any term of this Agreement; or
-12-
(c) the Agent determines that any of the representations or
warranties made by the Issuer in this Agreement is false or
has become false.
12.3 If the Agent exercises its right to terminate this Agreement, then the
Issuer will immediately issue a press release setting out particulars of the
termination.
12.4 The Agent may terminate its obligations under this Agreement if the
Exchange does not accept the Short Form for filing within 120 days of the
reference date of this Agreement.
13. WARRANTIES AND REPRESENTATIONS
13.1 The Issuer warrants and represents to the Agent that:
(a) the Issuer and its material subsidiaries, if any, are valid
and subsisting corporations duly incorporated and in good
standing under the laws of the jurisdictions in which they are
incorporated, continued or amalgamated;
(b) the Issuer and its subsidiaries, if any, are duly registered
and licensed to carry on business or own property in the
jurisdictions in which they carry on business or own property
where so required by the laws of that jurisdiction;
(c) the authorized and issued capital of the Issuer is as
disclosed in the Short Form and the issued and outstanding
common shares of the Issuer are fully paid and non-assessable;
(d) the Issuer will reserve or set aside sufficient common shares
in its treasury to issue the Shares, Warrant Shares, Agent's
Shares, Agent's Warrant Shares, Corporate Finance Shares,
Corporate Finance Warrant Shares, Agent's Option Shares and
Agent's Option Warrant Shares;
(e) except as disclosed in the Short Form, the Issuer is the
beneficial owner of the properties, business and assets or the
interests in the properties, business or assets referred to in
the Short Form and the documents incorporated therein by
reference, all agreements by which the Issuer holds an
interest in a property, business or asset are in good standing
according to their terms, and the properties are in good
standing under the applicable laws of the jurisdictions in
which they are situated;
(f) the Short Form and the documents incorporated therein by
reference, will contain full, true and plain disclosure of all
Material Facts in relation to the Issuer, its subsidiaries, if
any, its business and its securities, will contain no
Misrepresentations, will be accurate in all material respects
and will omit no fact, the omission of which will make such
representations misleading or incorrect;
(g) the financial statements of the Issuer incorporated by
reference in the Short Form have been prepared in accordance
with Canadian generally accepted accounting principles,
accurately reflect the financial position and all material
liabilities (accrued, absolute, contingent or otherwise) of
the Issuer and its subsidiaries, if any, as at the date of the
financial statements and there have been no adverse material
changes in the financial position of the Issuer since that
date, except as fully and plainly disclosed in the Short Form;
-13-
(h) the Issuer has complied and will comply fully with the
requirements of all applicable laws and administrative
policies and directions, including, without limitation, the
Applicable Legislation and applicable corporate legislation in
relation to the issue and trading of its securities and in all
matters relating to the Offering;
(i) the issue and sale of the Securities by the Issuer does not
and will not conflict with, and does not and will not result
in a breach of, any of the terms of its incorporating
documents or any agreement or instrument to which the Issuer
is a party;
(j) except as disclosed in the Short Form, neither the Issuer or
its subsidiaries, if any, is a party to any actions, suits or
proceedings which could materially affect its business or
financial condition, and no such actions, suits or proceedings
are contemplated or have been threatened;
(k) there are no judgments against the Issuer or any of its
subsidiaries, if any, which are unsatisfied, nor are there any
consent decrees or injunctions to which the Issuer or any of
its subsidiaries, if any, is subject;
(l) this Agreement has been duly authorized by all necessary
corporate action on the part of the Issuer and the Issuer has
full corporate power and authority to undertake the Offering;
(m) there is not presently, and will not be until the conclusion
of the Distribution, any Material Change or change in any
Material Fact relating to the Issuer which has not been or
will not be fully disclosed in the Short Form or a
Subsequently Triggered Report filed and delivered in
accordance with this Agreement;
(n) the Issuer has filed on a timely basis and will have on the
Closing filed all documents required to be filed under the
continuous disclosure parts of the Applicable Legislation, and
each of the documents comprising the Continuous Disclosure
Record contained a complete and accurate description of its
subject matter at the time of its filing;
(o) the Issuer is not in default of any of the requirements of
Applicable Legislation, the rules and policies of the
Exchange, or its Listing Agreement with the Exchange;
(p) the Issuer is an electronic filer under National Instrument
13-101 System for Electronic Analysis and Retrieval (SEDAR);
(q) the Issuer has filed all documents required to be filed under
the Applicable Legislation in each jurisdiction in which it is
a reporting issuer, and it has filed an AIF in a jurisdiction
in Canada;
-14-
(r) the common shares of the Issuer are listed for trading on the
Exchange and no order ceasing, halting or suspending trading
in securities of the Issuer or prohibiting the sale of such
securities has been issued to and is outstanding against the
Issuer or its directors, officers or promoters or against any
other companies that have common directors, officers or
promoters and no investigations or proceedings for such
purposes are pending or threatened;
(s) the Gross Proceeds of the Offering, when aggregated with the
Gross Proceeds from Prior Offerings, will not exceed
$2,000,000;
(t) the number of common shares to be issued under the Short Form,
when added to the number of Listed Securities of the same
class distributed under Prior Offerings, will exceed neither:
(i) the number of securities of the same class
outstanding immediately before the Issuer distributes
securities under the Short Form; nor
(ii) the number of securities of the same class
outstanding immediately before a Prior Offering;
(u) except as disclosed in the Short Form or any Subsequently
Triggered Report and the documents incorporated therein by
reference, no person has any right, agreement or option,
present or future, contingent or absolute, or any right
capable of becoming such a right, agreement or option, for the
issue or allotment of any unissued shares in the capital of
the Issuer or its subsidiaries, if any, or any other security
convertible into or exchangeable for any such shares, or to
require the Issuer or its subsidiaries, if any, to purchase,
redeem or otherwise acquire any of the issued and outstanding
shares in its capital;
(v) the Issuer and its subsidiaries, if any, have filed all
federal, provincial, local and foreign tax returns which are
required to be filed, or have requested extensions thereof,
and have paid all taxes required to be paid by them and any
other assessment, fine or penalty levied against them, to the
extent that any of the foregoing is due and payable, except
for such assessments, fines and penalties which are currently
being contested in good faith;
(w) the Issuer and its subsidiaries, if any, have established on
their books and records reserves which are adequate for the
payment of all taxes not yet due and payable and there are no
liens for taxes on the assets of the Issuer or its
subsidiaries, if any, except for taxes not yet due, and there
are no audits of any of the tax returns of the Issuer or its
subsidiaries, if any, which are known by the Issuer's
management to be pending, and there are no claims which have
been or may be asserted relating to any such tax returns
which, if determined adversely, would result in the assertion
by any governmental agency of any deficiency which would have
a material adverse effect on the properties, business or
assets of the Issuer or its subsidiaries, if any;
(x) the Issuer owns or possesses adequate rights to use all
material patents, trademarks, service marks, trade names,
copyrights, trade secrets, information, proprietary rights and
other intellectual property necessary for the business of the
Issuer now conducted and
-15-
proposed to be conducted, without any conflict with or
infringement of the rights of others. The Issuer has received
no communication alleging that the Issuer has violated or, by
conducting its business as proposed, would violate any of the
patents, trademarks, service marks, trade names, copyrights or
trade secrets or other proprietary rights of any other person
or entity. Neither the execution or delivery of this Agreement
nor the carrying on of the business of the Issuer by the
employees of the Issuer, nor the conduct of the business of
the Issuer will conflict with or result in a breach of the
terms, conditions, or provisions of or constitute a default
under, any contract, covenant or instrument under which any of
such employees is now obligated;
(y) other than the Agent, no person, firm or corporation acting or
purporting to act at the request of the Issuer is entitled to
any brokerage, agency or finder's fee in connection with the
transactions described herein; and
(z) the warranties and representations in this Subsection are true
and will remain so as of the Closing.
13.2 The Agent warrants and represents to the Issuer that:
(a) it is a valid and subsisting corporation under the law of the
jurisdiction in which it was incorporated, continued or
amalgamated;
(b) it has appropriate registration to sell the securities on the
basis provided in this Agreement;
(c) it is a member in good standing of the Exchange; and
(d) the warranties and representations in this Subsection are true
and will remain so as of the Closing.
14. EXPENSES OF AGENT
14.1 The Issuer will pay all of the expenses of the Offering and all the
expenses reasonably incurred by the Agent in connection with the Offering
including, without limitation, the fees and expenses of the solicitors for the
Agent.
14.2 The Issuer will pay the expenses referred to in the previous Subsection
even if the Short Form and this Agreement are not accepted by the Exchange or
the transactions contemplated by this Agreement are not completed or this
Agreement is terminated, unless the failure of acceptance or completion or the
termination is the result of a breach of this Agreement by the Agent.
14.3 The Agent may, from time to time, render accounts to the Issuer for its
expenses for payment on or before the dates set out in the accounts.
14.4 The Issuer authorizes the Agent to deduct its reasonable expenses in
connection with the Offering from the proceeds of the Offering.
-16-
15. INDEMNITY
15.1 The Issuer will indemnify the Agent and each of the Agent's agents,
directors, officers and employees (individually, an "Indemnified Party" and
collectively, the "Indemnified Parties") and save them harmless against all
losses, claims, damages or liabilities:
(a) existing (or alleged to exist) by reason of untrue statements
contained in the Short Form or other written or oral
representation made by the Issuer to an investor in connection
with the Offering or by reason of the omission to state in the
Short Form any fact necessary to make such statements or
representation not misleading (except for information and
statements supplied by and referring solely to the Agent);
(b) arising directly or indirectly out of any order made by any
regulatory authority based upon an allegation that any such
untrue statement or representation or omission exists (except
for information and statements supplied by and referring
solely to the Agent) including, without limitation, an order
that trading in or distribution of the Securities is to cease;
(c) resulting from the failure by the Issuer to file with the
Regulatory Authorities or deliver to the Agent a Subsequently
Triggered Report as required by this Agreement;
(d) resulting from the breach by the Issuer of any of the terms of
this Agreement;
(e) resulting from any representation or warranty made by the
Issuer herein not being true or ceasing to be true;
(f) if the Issuer fails to issue and deliver the certificates
representing the Securities in the form and denominations
satisfactory to the Agent at the time and place required by
the Agent with the result that any completion of a sale of the
Securities does not take place; or
(g) if, following the completion of a sale of any of the
Securities, a determination is made by any competent authority
setting aside the sale unless that determination arises out of
an act or omission by the Agent.
15.2 If any action or claim is brought against an Indemnified Party in
respect of which indemnity may be sought from the Issuer pursuant to this
Agreement, the Indemnified Parties will promptly notify the Issuer in writing.
15.3 The Issuer will assume the defence of the action or claim, including
the employment of counsel and the payment of all expenses.
15.4 The Indemnified Parties will have the right to employ separate counsel,
and the Issuer will pay the reasonable fees and expenses of such counsel.
15.5 The indemnity provided for in this Section will not be limited or
otherwise affected by any other indemnity obtained by the Indemnified Parties
from any other person in respect of any matters specified in this Agreement and
will continue in full force and effect until all possible liability of the
Indemnified Parties arising out of the transactions contemplated by this
Agreement has been extinguished by the operation of law.
-17-
15.6 If indemnification under this Agreement is found in a final judgment
(not subject to further appeal) by a court of competent jurisdiction not to be
available for reason of public policy, the Issuer and the Indemnified Parties
will contribute to the losses, claims, damages, liabilities or expenses (or
actions in respect thereof) for which such indemnification is held unavailable
in such proportion as is appropriate to reflect the relative benefits to and
fault of the Issuer, on the one hand, and the Indemnified Parties on the other
hand, in connection with the matter giving rise to such losses, claims, damages,
liabilities or expenses (or actions in respect thereof). No person found liable
for a fraudulent Misrepresentation will be entitled to contribution from any
person who is not found liable for such fraudulent Misrepresentation.
15.7 To the extent that any Indemnified Party is not a party to this
Agreement, the Agent will obtain and hold the right and benefit of this Section
in trust for and on behalf of such Indemnified Party.
16. RIGHT OF FIRST REFUSAL
16.1 The Issuer will notify the Agent of the terms of any further brokered
equity (or securities convertible into equity) financing that it requires or
proposes to obtain during the 12 months following the Closing and the Agent will
have the right of first refusal to provide any such financing.
16.2 The right of first refusal must be exercised by the Agent within 15
days following the receipt of the notice by notifying the Issuer that it will
provide such financing on the terms set out in the notice.
16.3 If the Agent fails to give notice within the 15 days that it will
provide such financing upon the terms set out in the notice, the Issuer will
then be free to make other arrangements to obtain financing from another source
on the same terms or on terms no less favourable to the Issuer, subject to
obtaining the acceptance of the Regulatory Authorities.
16.4 The right of first refusal will not terminate if, on receipt of any
notice from the Issuer under this Section, the Agent fails to exercise the
right.
16.5 The right of first refusal granted under this Section will terminate if
the Offering is not made by the Agent within the period provided in this
Agreement.
17. ASSIGNMENT AND SELLING GROUP PARTICIPATION
17.1 The Agent will not assign this Agreement or any of its rights under
this Agreement or, with respect to the Securities, enter into any agreement in
the nature of an option or a sub-option unless and until, for each intended
transaction, the Agent has obtained the consent of the Issuer and notice has
been given to and accepted by the Regulatory Authorities.
17.2 The Agent may offer selling group participation in the normal course of
the brokerage business to selling groups of other licensed dealers, brokers and
investments dealers, who may or who may not be offered part of the commissions
or warrants to be received by the Agent pursuant to this Agreement.
-18-
18. NOTICE
18.1 Any notice under this Agreement will be given in writing and must be
delivered, sent by facsimile transmission or mailed by prepaid post and
addressed to the party to which notice is to be given at the address indicated
above, or at another address designated by such party in writing.
18.2 If notice is sent by facsimile transmission or is delivered, it will be
deemed to have been given at the time of transmission or delivery.
18.3 If notice is mailed, it will be deemed to have been received 48 hours
following the date of mailing of the notice.
18.4 If there is an interruption in normal mail service due to strike,
labour unrest or other cause at or prior to the time a notice is mailed the
notice will be sent by facsimile transmission or will be delivered.
19. TIME
Time is of the essence of this Agreement and will be calculated in accordance
with the provisions of the INTERPRETATION ACT (British Columbia).
20. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The representations, warranties, covenants and indemnities of the parties
contained in this Agreement will survive the closing of the purchase and sale of
the Securities.
21. LANGUAGE
Wherever a singular or masculine expression is used in this Agreement, that
expression is deemed to include the plural, feminine or the body corporate where
required by the context.
22. ENUREMENT
This Agreement enures to the benefit of and is binding on the parties to this
Agreement and their successors and permitted assigns.
23. HEADINGS
The headings in this Agreement are for convenience of reference only and do not
affect the interpretation of this Agreement.
24. LAW
This Agreement and its application and interpretation will be governed
exclusively by the laws prevailing in British Columbia. The parties to this
Agreement consent to the jurisdiction of the courts of British Columbia, which
courts shall have exclusive jurisdiction over any dispute of any kind arising
out of or in connection with this Agreement.
-19-
25. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement and supersedes any other
previous agreement between the parties with respect to the Offering and there
are no other terms, conditions, representations or warranties whether express,
implied, oral or written by the Issuer or the Agent.
26. COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of which will
be deemed to be an original and all of which will constitute one agreement,
effective as of the reference date given above.
This document was executed and delivered as of the date given above.
CENTRASIA MINING CORP.
Per: /s/ Xxxx XxXxxx
--------------------------------------
Authorized Signatory
Per: /s/ Xxxxx Xxxxxx
--------------------------------------
Authorized Signatory
c/s CANACCORD CAPITAL CORPORATION
Per: /s/ Xxxxx Xxxxx
--------------------------------------
Authorized Signatory
Per: /s/ Xxxxx Xxxxxx
--------------------------------------
Authorized Signatory
I/We have the authority to bind the
corporation
