MIRAMAR MINING CORPORATION
22,080,000 COMMON SHARES
AMENDED AND RESTATED UNDERWRITING AGREEMENT
JUNE 27, 2006
June 27, 2006
Miramar Mining Corporation
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Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President & Chief Executive Officer
Dear Sirs/Mesdames:
BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc., Paradigm Capital Inc., Dundee Securities
Corporation, Canaccord Capital Corporation, RBC Dominion Securities Inc.,
National Bank Financial Inc. and Salman Partners Inc. (collectively, the
"Underwriters") understand that Miramar Mining Corporation ("Miramar" or the
"Company") has entered into an underwriting agreement dated June 26, 2006 (the
"Original Underwriting Agreement") with BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc. relating to the
issue and sale of 19,200,000 common shares of the Company (the "Initial Shares")
at an issue price of CDN$4.17 per share.
BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc. and the Company wish to amend the Original
Underwriting Agreement to include, as underwriters, each of Paradigm Capital
Inc., Dundee Securities Corporation, Canaccord Capital Corporation, RBC Dominion
Securities Inc., National Bank Financial Inc. and Salman Partners Inc. on the
terms set forth herein. The Company and the Underwriters hereby agree, that the
Original Underwriting Agreement be replaced in its entirety with this amended
and restated agreement.
The Company grants to the Underwriters hereunder an over-allotment option
(the "Over-Allotment Option"), which Over-Allotment Option may be exercised in
whole or in part at the Underwriters' sole discretion and without obligation, to
purchase up to an additional 2,880,000 common shares of the Company (the
"Additional Shares") at an issue price of CDN$4.17 per share to cover
over-allotments and for market stabilization purposes. The Over-Allotment Option
shall be exercisable in whole or in part at any time and from time to time, for
a period of 30 days following the Closing Date by BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc., on
behalf of the Underwriters, delivering written notice to that effect to the
Company not later than 48 hours prior to the proposed Over-Allotment Closing
Date (as hereinafter defined), after which time the Over-Allotment Option shall
be void and of no further force and effect. In the event that the Over-Allotment
Option is exercised, the Additional Shares issued thereunder, shall be deemed to
form part of the offering for the purposes hereof and all of the terms and
conditions relating to the purchase and sale of the Initial Shares shall apply
to the purchase and sale of the Additional Shares.
The Company and the Underwriters have also entered into a separate amended
and restated underwriting agreement dated the date hereof (the "Flow-Through
Underwriting Agreement") relating to the proposed issue and sale, on a private
placement basis, of 2,900,000 common shares of the Company to be issued as
"flow-through" shares pursuant to the Income Tax Act (Canada) (the "Flow-Through
Shares").
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Unless the context otherwise requires, all references to "Offered Shares"
shall assume the exercise of the Over-Allotment Option and shall include the
Additional Shares.
The Underwriters are prepared to purchase the Offered Shares from the
Company, subject to the terms and conditions described herein. The Underwriters
acknowledge the filing on June 26, 2006 of a preliminary short form prospectus
(including the documents incorporated by reference therein, in the English
Language, the "Initial Preliminary Prospectus") qualifying the distribution of
the Offered Shares with the Canadian Securities Commissions (as hereinafter
defined) and the issuance on June 26, 2006 of a Mutual Reliance Review System
(the "MRRS") decision document issued by the British Columbia Securities
Commission (the "Reviewing Authority") in its capacity as principal regulator,
pursuant to the MRRS evidencing that a receipt has been issued for the Initial
Preliminary Prospectus by the Canadian Securities Commissions. The Underwriters
also acknowledge the filing on June 27, 2006 with the United States Securities
and Exchange Commission (the "SEC"), in accordance with the provisions of the
United States Securities Act of 1933, as amended, and the rules and regulations
thereunder (collectively, the "1933 Act"), of a registration statement
(including documents incorporated by reference therein, as it has been and may
be further amended from time to time, the "Registration Statement") on Form F-10
covering the sale of the Offered Shares under the 1933 Act which includes the
Initial Preliminary Prospectus (with such conditions as are permitted or
required by Form F-10 and the applicable rules and regulations of the SEC),
along with the filing with the SEC of an appointment for agent for service of
process upon the Company on Form F-X in conjunction with the filing of the
Registration Statement (the "Form F-X"). Finally, the Underwriters acknowledge
Miramar's issuance of a press release in compliance with SEC Rule 134 announcing
the offering of the Offered Shares immediately upon the filing of the
Registration Statement. The obligation of the Underwriters to purchase any
Offered Shares shall, in addition to being subject to the other terms and
conditions described herein, be conditional on the following steps having been
taken within the time frames described below:
(a) Miramar shall file an amended and restated preliminary short form
prospectus (including the documents incorporated by reference therein,
in the English language, as it may be amended from time to time, the
"Canadian Preliminary Prospectus") qualifying the distribution of the
Offered Shares with the Reviewing Authority and the securities
regulatory authorities in each of the other provinces of Canada, other
than Quebec (together with British Columbia, the "Qualifying
Provinces"), and shall obtain a MRRS decision document issued by the
Reviewing Authority in its capacity as principal regulator, pursuant
to the MRRS evidencing that a receipt has been issued for the Canadian
Preliminary Prospectus by the securities regulatory authorities in
each of Qualifying Provinces (collectively, the "Canadian Securities
Commissions") on June 27, 2006;
(b) Miramar shall file with the SEC, in accordance with the provisions of
the 1933 Act, an amendment to the Registration Statement (including
documents incorporated by reference therein) on Form F-10 covering the
sale of the Offered Shares under the 1933 Act which includes the
Canadian Preliminary Prospectus (with such additions and deletions as
are permitted or required by Form F-10 and the applicable rules and
regulations of the SEC) (the "U.S. Preliminary
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Prospectus") as soon as possible after the filing of the Canadian
Preliminary Prospectus.
(c) Miramar shall use its reasonable efforts to resolve all comments on
the Canadian Preliminary Prospectus that are received from the
Canadian Securities Commissions (as well as any comments on the
Registration Statement that are received from the SEC) as soon as
possible after receipt of such comments and on a basis satisfactory to
the Underwriters, acting reasonably;
(d) Miramar shall (i) file with the Reviewing Authority and the other
Canadian Securities Commissions, within prescribed time periods, any
amendment or supplement to the Canadian Preliminary Prospectus and
shall obtain an MRRS decision document issued by the Reviewing
Authority in its capacity as principal regulator, pursuant to the MRRS
evidencing that a receipt has been issued for the Canadian Preliminary
Prospectus, as amended or supplemented, by each of the Canadian
Securities Commissions and (ii) forthwith after any such filing in
Canada file with the SEC, in accordance with the provisions of the
1933 Act, an amendment to the Registration Statement which includes
any such amendment or supplement to the Canadian Preliminary
Prospectus;
(e) Miramar shall file a final short form prospectus (including the
documents incorporated by reference therein, in the English language,
the "Canadian Final Prospectus") qualifying the distribution of the
Offered Shares with the Reviewing Authority and the other Canadian
Securities Commissions, and shall obtain an MRRS decision document
issued by the Reviewing Authority in its capacity as principal
regulator, pursuant to the MRRS evidencing that a receipt has been
issued for the Canadian Final Prospectus by each of the Canadian
Securities Commissions, as soon as practicable after comments on the
Canadian Preliminary Prospectus are settled and, in any event, by no
later than 1:30 p.m. (Vancouver time) on July 5, 2006; and
(f) Miramar shall file with the SEC, in accordance with the provisions of
the 1933 Act, an amendment to the Registration Statement which
includes the Canadian Final Prospectus (with such additions and
deletions as are permitted or required by Form F-10 and the applicable
rules and regulations of the SEC) (the "U.S. Final Prospectus") by no
later than 2:30 p.m. (Vancouver time) on July 5, 2006.
For greater certainty, the parties agree that if Miramar fails to meet the
deadlines specified above for any reason whatsoever (including, without
limitation, being unable to resolve any comments on the Canadian Preliminary
Prospectus from the Canadian Securities Commissions on a basis satisfactory to
the Underwriters, acting reasonably, within the time frames described above),
the Underwriters shall be entitled to exercise the termination rights provided
for in Section 9(a) hereof.
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents and
warrants to and agrees with each of the Underwriters that:
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(a) The Company meets the general eligibility requirements for use of Form
F-10 under the 1933 Act and is eligible to file a short form
prospectus under National Instrument 44-101 of the Canadian Securities
Administrators.
(b) The Canadian Preliminary Prospectus and the Canadian Final Prospectus
(together, the "Canadian Prospectus") will be prepared and filed in
compliance in all material respects with the securities laws in each
of the Qualifying Provinces and the respective rules and regulations
under such laws, together with the published policy statements,
blanket orders and notices of the Canadian Securities Commissions (the
"Canadian Securities Laws") and, at the time of delivery of the
Offered Shares to the Underwriters, the Canadian Final Prospectus will
comply in all material respects with the Canadian Securities Laws and
the Company shall fulfill and comply with the necessary requirements
of the Canadian Securities Laws in order to enable the Offered Shares
to be lawfully distributed in the Qualifying Provinces through the
Underwriters or any other investment dealers or brokers registered as
such in the Qualifying Provinces and acting in accordance with the
terms of their registrations and the Canadian Securities Laws. Such
requirements shall be fulfilled in the Province of British Columbia
and in the other Qualifying Provinces on the date of this Agreement
June 27, 2006, or such later date or dates as may be agreed to in
writing by the Underwriters.
(c) None of the Canadian Securities Commissions, the SEC, any stock
exchange in Canada or the United States or any other regulatory
authority or court has issued an order preventing or suspending the
use or effectiveness, as the case may be, of the Canadian Prospectus,
the Disclosure Package (as defined below), the U.S. Final Prospectus
or the Registration Statement relating to the proposed offering of the
Offered Shares or preventing the distribution of the Offered Shares or
instituted proceedings for that purpose and no proceedings for that
purpose are pending or, to the knowledge of the Company, are
contemplated by any of the aforementioned parties, and any request on
the part of such parties for additional information from the Company
has been complied with.
(d) The Canadian Preliminary Prospectus and the Canadian Final Prospectus
shall, as of their respective dates of filing and, except as amended
prior to the Closing Date (as defined in Section 4 below) in
accordance with Canadian Securities Laws, as of the Closing Date (i)
constitute full, true and plain disclosure of all material facts
relating to the Company, its subsidiaries and the Offered Shares, (ii)
contain no misrepresentation, as defined under Canadian Securities
Laws and (iii) not omit any information which is necessary to make the
statements contained therein not misleading. The documents
incorporated by reference in the Canadian Prospectus and the U.S.
Prospectus (as hereinafter defined), when filed with the Reviewing
Authority and the SEC, were prepared in accordance with the Canadian
Securities Laws, and any further documents so filed and incorporated
by reference in the Canadian Prospectus and the U.S. Prospectus prior
to the termination of the distribution of the Offered Shares, or any
further amendment or supplement thereto, when such documents are filed
with the Reviewing Authority and the SEC, will be prepared in
accordance with the Canadian Securities Laws.
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(e) The U.S. Preliminary Prospectus and the U.S. Final Prospectus
(together, the "U.S. Prospectus") will conform to the Canadian
Preliminary Prospectus and Canadian Final Prospectus, respectively,
except for such deletions therefrom and additions thereto as are
permitted or required by Form F-10 and the applicable rules and
regulations of the SEC. In addition, as of their respective dates, the
Registration Statement, the Form F-X, the U.S. Preliminary Prospectus
and the U.S. Final Prospectus, as amended or supplemented, if
applicable, will comply in all material respects with the 1933 Act.
(f) As of the date and time the Registration Statement is declared
effective (the "Effective Time"), neither the Registration Statement
nor any amendment or supplement thereto will 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 not misleading.
(g) As of the date and time immediately prior to the Effective Time (the
"Applicable Time"), the U.S. Preliminary Prospectus, any "free writing
prospectus" as defined in Rule 405 of the 1933 Act (a "Free Writing
Prospectus") and any "issuer free writing prospectus" as defined in
Rule 433 of the 1933 Act (an "Issuer Free Writing Prospectus" and,
together with any Free Writing Prospectus and the U.S. Preliminary
Prospectus, the "Disclosure Package"), when taken together as a whole,
will not, as of the Applicable Time, and on the Closing Date and on
any settlement date, contain any untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(h) Each Issuer Free Writing Prospectus will not include any information
that conflicts with the information contained in the Registration
Statement or the Canadian Prospectus, including any document
incorporated by reference therein and any prospectus supplement deemed
to be a part thereof that has not been superseded or modified.
The representations and warranties contained in clauses (c), (d), (e), (f), (g)
and (h) above shall not apply to statements or omissions in the Canadian
Preliminary or Final Prospectus or the U.S. Preliminary or Final Prospectus that
are made in reliance upon and in conformity with information furnished to the
Company by any Underwriter expressly for use in the Canadian Preliminary or
Final Prospectus or the U.S. Preliminary and Final Prospectus.
(i) There are:
(i) no reports or information that in accordance with the
requirements of the Canadian Securities Laws must be made
publicly available in connection with the offering of the Offered
Shares that have not been or will not be made publicly available
as required, and there are no documents required to be filed with
the Canadian Securities Commissions in connection with the
Canadian Prospectus that have not been filed (or that will not be
filed prior to the Closing Date in accordance with Canadian
Securities Laws) as
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required pursuant to Canadian Securities Laws and delivered to
the Underwriters; and
(ii) no contracts, documents or other materials required to be
described or referred to in the Canadian Prospectus or the U.S.
Prospectus or to be filed as exhibits to the Registration
Statement that will not be described, referred to or filed as
required and, in the case of those documents filed, delivered to
the Underwriters.
(j) (A) At the time of filing the Registration Statement, and (B) as of
the date and time this Agreement is executed and delivered by the
parties hereto (the "Execution Time") (with such date being used as
the determination date for purposes of this clause (B)), the Company
was not and is not an "ineligible issuer" as defined in Rule 405 of
the 1933 Act (an "Ineligible Issuer"), without taking account of any
determination by the SEC pursuant to Rule 405 of the 1933 Act that it
is not necessary that the Company be considered an Ineligible Issuer.
(k) The Company is, and upon completion of the transactions described
herein, and assuming the anticipated use of the proceeds thereof to be
described in the Canadian Prospectus, the Disclosure Package and the
U.S. Final Prospectus, will be, a "foreign private issuer" within the
meaning of Rule 3b-4 under the U.S. Securities Exchange Act of 1934,
as amended (the "1934 Act").
(l) The consolidated audited and unaudited financial statements of the
Company that are to be included or incorporated by reference in the
Registration Statement, the Canadian Prospectus, the Disclosure
Package and the U.S. Final Prospectus will present fairly in all
material respects the consolidated financial position of the Company
and its subsidiaries as of the dates indicated and the consolidated
results of operations and the consolidated changes in financial
position of the Company and its subsidiaries for the periods specified
(subject, in the case of interim financial information, to year-end
adjustments); and such financial statements have been (or will be)
prepared in conformity with generally accepted accounting principles
in Canada, consistently applied throughout the periods involved, and
have been reconciled to generally accepted accounting principles in
the United States in accordance with Item 18 of Form 20-F. The summary
and selected financial data to be included or incorporated by
reference in the Registration Statement, the Canadian Prospectus, the
Disclosure Package and the U.S. Final Prospectus present fairly the
information shown therein and have been compiled on a basis consistent
with that of the audited and unaudited consolidated financial
information included or incorporated by reference in the Registration
Statement, the Canadian Prospectus, the Disclosure Package and the
U.S. Final Prospectus.
(m) The Company does not owe any money to, does not have any present loans
to, has not borrowed any monies from, and is not otherwise indebted to
any officer, director, employee, shareholder or any person not dealing
"arm's length" (as such term is defined in the Tax Act) with the
Company except as set forth in the audited financial statements of the
Company to be included or incorporated by
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reference in the Registration Statement, the Canadian Prospectus, the
Disclosure Package and the U.S. Final Prospectus.
(n) The Company does not have any agreements of any nature whatsoever to
acquire or merge with any entity, or to acquire or lease any other
business operations.
(o) KPMG LLP, who have reported upon the audited financial statements of
the Company included or incorporated by reference in the Registration
Statement, the Canadian Prospectus, Disclosure Package and the U.S.
Final Prospectus, are, and during the periods covered by its reports
were, independent with respect to the Company within the meaning of
the Business Corporations Act (British Columbia) and applicable
Canadian Securities Laws, and are independent as required by the 1933
Act and there has never been any reportable event (within the meaning
of Canadian Securities Laws) with the present or any former auditor of
the Company;.
(p) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the Business Corporations Act
(British Columbia), has the corporate power and authority to own its
property and to conduct its business as described in the Registration
Statement, the Canadian Prospectus, the Disclosure Package and the
U.S. Final Prospectus and is duly qualified to transact business and
is in good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(q) Schedule "A" hereto lists each subsidiary of the Company (a
"subsidiary"), including each "significant subsidiary" as defined in
Rule 1-02 of Regulation S-X under the 1933 Act (a "Significant
Subsidiary") of the Company, and each subsidiary has been duly
incorporated or amalgamated, is validly existing as a corporation or
company under the laws of the jurisdiction of its incorporation and
has the corporate power and authority to own its property and to
conduct its business as described in the Canadian Prospectus, the
Registration Statement, the Disclosure Package and the U.S. Final
Prospectus, except to the extent that such failure would not have a
material adverse effect on the Company and its subsidiaries, taken as
a whole; each of the Company's subsidiaries is duly qualified to
transact business in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole; each of the Company's subsidiaries
is in good standing (where such concept exists) under the laws of the
jurisdiction of its incorporation or formation or amalgamation and is
in good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that such failure to be so
qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole; and the
Company holds directly or indirectly 100% of the issued and
outstanding
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shares of each such subsidiary, free and clear of all mortgages,
liens, charges, pledges, security interests, encumbrances, claims or
demands of any kind whatsoever, all of such shares have been duly
authorized and validly issued and are outstanding as fully paid and
non-assessable shares and no person has any right, agreement or
option, present or future, contingent or absolute, or any right
capable of becoming a right, agreement or option, for the purchase
from the Company of any interest in any of such shares or for the
issue or allotment of any unissued shares in the capital of the
Company's subsidiaries, or any other security convertible into or
exchangeable for any such shares.
(r) The Company has the corporate power and authority to execute, deliver
and perform its obligations under this Agreement and this Agreement
has been duly authorized, executed and delivered by the Company.
(s) The authorized capital of the Company conforms in all material
respects to the description thereof to be contained in the Canadian
Prospectus, the Registration Statement, the Disclosure Package and the
U.S. Final Prospectus.
(t) All common shares of the Company outstanding immediately prior to the
issuance of the Flow-Through Shares and Public Offering Shares have
been or will be duly authorized and are validly issued, fully paid and
non-assessable; there are no outstanding securities convertible into
or exchangeable for, or warrants, rights or options to purchase from
the Company, or obligations of the Company to issue, common shares of
the Company or any other class of shares of the Company, except, as of
the date hereof: (1) stock options issued to certain executive
officers, directors and employees of the Company and options granted
by Hope Bay Gold Corporation Inc. ("Hope Bay") to its executive
officers, directors and employees, which options were assumed by the
Company on completion of the business combination with Hope Bay,
exercisable for 6,645,478 common shares of the Company, (2) brokers
warrants exercisable into 62,220 common shares of the Company or (3)
warrants issued to Newmont Mining Corporation of Canada Limited
("Newmont") exercisable into 18,500,000 common shares of the Company.
(u) The Offered Shares have been duly authorized for issuance and sale to
the Underwriters pursuant to this Agreement and, when issued and
delivered in accordance with the terms of this Agreement, will be
validly allotted and issued as fully paid and non-assessable shares,
and the issuance of the Offered Shares will not, at the time of
issuance, be subject to any pre-emptive or similar rights.
(v) The execution and delivery by the Company of, and the performance by
the Company of its obligations under, this Agreement and the issue and
sale of the Offered Shares and the grant of the Over-Allotment Option
by the Company will not contravene:
(i) any provision of law binding on the Company or any of its
subsidiaries;
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(ii) the notice of articles or articles of the Company;
(iii) any agreement or other instrument binding upon the Company or
any of its Significant Subsidiaries; or
(iv) any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any subsidiary,
other than, in the case of clauses (i), (iii) and (iv), any
contravention that would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole, and that would not
have a material adverse effect on the ability of the Company to
perform its obligations under this Agreement.
(w) No approval, consent, authorization, order or license of, or
qualification with any government, governmental body or agency or
court of (i) any province of Canada; (ii) the federal government of
Canada; (iii) the federal government of the United States; or (iv) the
various states of the United States in which the Offered Shares are to
be offered for sale or sold, or of any political subdivision of any
thereof, is required to be obtained by the Company or its subsidiaries
for the performance by the Company of its obligations under this
Agreement, except such as have already been received and may be
required by the Toronto Stock Exchange, the American Stock Exchange,
the 1933 Act, the securities or "Blue Sky" laws of the various states
of the United States and the Canadian Securities Laws in connection
with the offer and sale of the Offered Shares.
(x) There has not occurred any material adverse change, or any development
involving a prospective material adverse change, in the condition,
financial or otherwise, or in the ownership of the Company or in the
earnings, business or operations of the Company and its subsidiaries,
taken as a whole, from that to be set forth in the Canadian
Prospectus, the Registration Statement, the Disclosure Package and the
U.S. Final Prospectus.
(y) Except as to be disclosed in the Canadian Prospectus, the Registration
Statement, the Disclosure Package and the U.S. Final Prospectus, there
are no actions, proceedings or investigations (whether or not
purportedly by or on behalf of the Company or any Significant
Subsidiary) pending or threatened against or affecting the Company or
a Significant Subsidiary or any of its properties at law or in equity
(whether in any court, arbitration or similar tribunal) or before or
by any federal, provincial, state, municipal, or other governmental
department, commission, board or agency, domestic or foreign, required
to be disclosed therein.
(z) The Company is not and, after giving effect to the offering and sale
of the Offered Shares and the application of the proceeds thereof to
be described in the Canadian Prospectus, the Disclosure Package, the
Registration Statement and the U.S. Final Prospectus, will not be
required to register as an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended.
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(aa) There are no "significant acquisitions", "significant dispositions"
and "significant probable acquisitions" for which the Company is
required, pursuant to applicable Canadian Securities Laws to include
additional financial disclosure.
(bb) Each of the Company and each of its subsidiaries:
(i) is in compliance with any and all applicable foreign, federal,
provincial, state and local laws and regulations relating to the
protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws");
(ii) except as to be disclosed in the Canadian Prospectus Disclosure
Package, Registration Statement and U.S. Final Prospectus, has
received all permits, licenses or other approvals required of it
under applicable Environmental Laws to conduct its business; and
(iii) is in compliance with all terms and conditions of any such
permit, license or approval,
except where such non-compliance with Environmental Laws, failure to
receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or
approvals would not, individually or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
In the ordinary course of its business, the Company periodically
reviews the effect of Environmental Laws on the business, operations
and properties of the Company and its subsidiaries, in the course of
which it identifies and evaluates associated costs and liabilities
(including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with
Environmental Laws, or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to
third parties). On the basis of such review, the Company has
reasonably concluded that such associated costs and liabilities would
not, singly or in the aggregate, have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(cc) Except as to be disclosed in the Canadian Prospectus, the Registration
Statement, the Disclosure Package and the U.S. Final Prospectus, there
are no costs or liabilities associated with Environmental Laws
(including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to
third parties) which would, individually or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken as
a whole.
(dd) Except as to be disclosed in the Canadian Prospectus, the Registration
Statement, the Disclosure Package and the U.S. Final Prospectus, each
of the Company and each Significant Subsidiary currently holds in good
standing all material permits,
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licenses, franchises and approvals of governmental authorities and
agencies necessary for the present use, ownership and operation of its
business (except where the failure to do so would not, individually or
in the aggregate, have a material adverse effect on the Company and
its subsidiaries, taken as a whole), and no revocation or limitation
of any such permit, license, franchise or approval is pending or, to
the knowledge of the Company, threatened and neither the Company nor
any of the Significant Subsidiaries is in default or violation of any
such permit, license, franchise or approval (except where such
revocation, limitation, default or violation would not, individually
or in the aggregate, have a material adverse effect on the Company and
its subsidiaries, taken as a whole), and the authorization, issuance
and delivery of the Offered Shares and the compliance by the Company
and the Significant Subsidiaries, as applicable, with the terms of
this Agreement do not and will not conflict with, or result in a
breach of any of the terms or provisions of, or constitute a default
under, any of such permits, licenses, franchises and approvals. Except
as to be disclosed in the Canadian Prospectus, the Registration
Statement, the Disclosure Package and the U.S. Final Prospectus, to
the knowledge of the Company, there is no threatened or pending change
in any law, rule or regulation referred to above that would,
individually or in the aggregate, have a material adverse effect on
the Company and its subsidiaries, taken as a whole.
(ee) The Company and its subsidiaries own or possess adequate patents,
patent licenses, trademarks, service marks and trade names necessary
to carry on their businesses as presently conducted except where such
failure to own or possess such patents, patent licenses, trademarks,
service marks and trade names would not have a material adverse effect
on the Company and its subsidiaries, taken as a whole; and neither the
Company nor any of its subsidiaries has received any notice of
infringement of or conflict with asserted rights of others with
respect to any patents, patent licenses, trademarks, service marks or
trade names that in the aggregate, if the subject of an unfavourable
decision, ruling or finding, would have a material adverse effect on
the Company and its subsidiaries, taken as a whole.
(ff) To the best of the Company's knowledge, the Company and each of its
subsidiaries is in compliance with all applicable laws respecting
employment and employment practices, terms and conditions of
employment, pay equity and wages, except where such non-compliance
would not have a material adverse effect on the Company and each of
its subsidiaries, taken as a whole, and has not and is not engaged in
any unfair labour practice.
(gg) Except as to be disclosed in the Canadian Prospectus, the Disclosure
Package, the Registration Statement and the U.S. Final Prospectus, or
as disclosed in writing to the Underwriters, and not material, the
Company and each of its subsidiaries is not a party to any contract
with any labour union or employee association or made commitments to
or conducted negotiations with any labour union or employee
association with respect to any future agreement and, to the best of
the knowledge of the Company, there are no current attempts to
organize or establish any labour
-13-
union or employee association, and there is no certification of any
such union with regard to a bargaining unit.
(hh) Except as disclosed in the notes to the Company's consolidated audited
financial statements, or as disclosed in writing to the Underwriters,
and not material, the Company and its subsidiaries have good title to
the items of real and personal property which are to be referred to in
the Registration Statement, the Canadian Prospectus, the Disclosure
Package and the U.S. Final Prospectus as being owned by them, and have
valid and enforceable leasehold interests in the items of real and
personal property to be referred to in the Registration Statement, the
Canadian Prospectus, the Disclosure Package and the U.S. Final
Prospectus as being leased by them, in each case free and clear of all
liens, encumbrances, claims, security interests and defects, other
than those which do not interfere with the use made or intended to be
made of such property by the Company or do not and will not have a
material adverse effect on the Company and its subsidiaries, taken as
a whole.
(ii) None of the Company or any of its subsidiaries is (i) in violation of
its charter documents or by-laws or (ii) in default in the observance
or performance of any term or obligation to be performed by it under
any agreement, lease, contract, mortgage, loan agreement, note,
indenture or other instrument or obligation to which the Company or
any of its subsidiaries is a party or by which the Company or any of
its subsidiaries or any of their respective properties is bound and
which breach or default, individually or in the aggregate, if not
cured or otherwise corrected within the respective period specified
for such cure or correction, would have a material adverse effect on
the Company and its subsidiaries, taken as a whole.
(jj) Pacific Corporate Trust Company, at its principal offices in the
cities of Vancouver and Toronto, has been duly appointed as the
registrar and transfer agent in respect of the common shares of the
Company.
(kk) Prior to the filing of the Canadian Final Prospectus and the U.S.
Final Prospectus, the Offered Shares will have been conditionally
approved for listing on the Toronto Stock Exchange and the American
Stock Exchange.
(ll) Except as disclosed in the Canadian Prospectus and the U.S.
Prospectus, all interests in natural resource properties of the
Company or its subsidiaries as set out in the Company's Annual
Information Form dated March 25, 2006 (as supplemented by the Canadian
Prospectus, the Registration Statement, the Disclosure Package and the
U.S. Final Prospectus) are owned or held by the Company or the
subsidiaries as owner thereof with good and marketable title, are in
good standing, are valid and enforceable, are free and clear of any
liens, charges or encumbrances and no royalty is payable in respect of
any of them, other than a royalty that may be payable in respect of
the Company's properties that are the subject of the option agreement
entered between the Company and Maximus Ventures Ltd. dated June 25,
2004. No other property rights are
-14-
currently necessary for the conduct of the Company's or the
subsidiaries' business. There are no restrictions on the ability of
the Company or its subsidiaries to use, transfer or otherwise exploit
any such property rights, and the Company or its subsidiaries do not
know of any claim or basis for a claim that may adversely affect such
rights, other than transfer restrictions affecting the Inuit owned
lands comprising part of the Company's Hope Bay Project pursuant to
seven exploration agreements entered into between the Company and
Nunavut Tunngavik Inc.
(mm) Except as otherwise to be disclosed therein, the information set forth
or incorporated by reference in the Canadian Prospectus, U.S.
Prospectus, Disclosure Package, the U.S. Final Prospectus and
Registration Statement: (a) relating to the estimates of mineral
reserves and resources has been reviewed and verified by the Company
and independent consultants to the Company to the extent set forth
therein; (b) the mineral reserve and resource information has been
prepared in accordance with Canadian industry standards set forth in
National Instrument 43-101 of the Canadian Securities Administrators;
(c) the information upon which the estimates of reserves and resources
were based was, at the time of the delivery thereof, complete and
accurate in all material respects; and (d) there have been no material
changes to such information since the date of delivery or preparation
thereof except as publicly disclosed and reflected in the Canadian
Prospectus, Disclosure Package, Registration Statement and U.S. Final
Prospectus.
(nn) With respect to any premises leased by the Company and its
subsidiaries, the Company and its subsidiaries occupy the leased
premises and have the exclusive right to occupy and use the leased
premises and each of the leases pursuant to which the Company and its
subsidiaries occupy the leased premises is in good standing and in
full force and effect.
(oo) Any real property (and the buildings constructed thereon) in which the
Company or any of its subsidiaries have a direct or indirect interest
whether leasehold or fee simple or otherwise (the "Real Property") and
the operations thereon are to the best of the Company's knowledge in
material compliance with all applicable federal, provincial and
municipal environmental, health and safety statutes, regulations and
permits. Except as to be disclosed in the Canadian Prospectus and the
U.S. Prospectus none of such Real Property or operations is subject to
any judicial or administrative proceeding alleging the violation of
any federal, provincial or municipal environmental, health or safety
statute or regulation or to the best of the Company's knowledge is
subject to any investigation concerning whether any remedial action is
needed to respond to a release of any Hazardous Material (as defined
below) into the environment. Except as to be disclosed in the Canadian
Prospectus and the U.S. Prospectus none of the Company, any of its
Subsidiaries or, to the best of the Company's knowledge, any occupier
of the Real Property, has filed any notice under any federal,
provincial or municipal law indicating past or present treatment,
storage or disposal of a Hazardous Material. Except in material
compliance with applicable environmental laws, none of the
-15-
Real Property has at any time been used by the Company, its
subsidiaries, or, to the best of the Company's knowledge, by any other
occupier, as a waste storage or waste disposal site or to operate a
waste management business. Except as to be disclosed in the Canadian
Prospectus and U.S. Prospectus, the Company and its subsidiaries have
no contingent liability of which the Company has knowledge or
reasonably should have knowledge in connection with any release of any
Hazardous Material on or into the environment from any of the Real
Property and operations thereon. None of the Company, its subsidiaries
or, to the best of the Company's knowledge, any occupier of the Real
Property, generates, transports, treats, stores or disposes of any
waste, subject waste, hazardous waste, deleterious substance,
industrial waste (as defined in applicable federal, provincial or
municipal legislation) on any of the Real Property in contravention of
applicable federal, provincial or municipal laws or regulations
enacted for the protection of the natural environment or human health.
To the best of the Company's knowledge, no underground storage tanks
or surface impoundments containing a petroleum product or Hazardous
Material are located on any of the Real Property in contravention of
applicable federal, provincial, state or municipal laws or regulations
enacted for the protection of the natural environment or human health.
For the purposes of this subparagraph, "Hazardous Material" means any
contaminant, pollutant subject waste, hazardous waste, deleterious
substance, industrial waste, toxic matter or any other substance that
when released into the natural environment is likely to cause, at some
immediate or future time, material harm or degradation to the natural
environment or material risk to human health and, without restricting
the generality of the foregoing, includes any contaminant pollutant
subject waste, deleterious substance, industrial waste, toxic matter
or hazardous waste as defined by applicable federal, provincial or
municipal laws or regulations enacted for the protection of the
natural environment or human health.
(pp) The Company and its subsidiaries are the owners or authorized
licensees of all the Intellectual Property (as defined below)
necessary to properly conduct the business of the Company and its
subsidiaries, respectively. The Company is not aware of a claim of any
infringement or breach of any industrial or intellectual property
rights of any other entity by the Company or a subsidiary, nor has the
Company or any subsidiary received any notice that the conduct of the
business of the Company or a subsidiary, including the use of the
Intellectual Property, infringes upon or breaches any industrial or
intellectual property rights of any other entity and the Company has
no knowledge of any infringement or violation of any of its material
rights in the Intellectual Property. To the Company's knowledge, the
conduct of its business does not infringe in any material respect upon
the patents, trade marks, licences, trade names, business names,
copyright or other industrial or intellectual property rights,
domestic or foreign, of any other entity, except where such
infringement would not have a material adverse effect on the business,
operations, capital or condition (financial or otherwise) of the
Company and its subsidiaries on a consolidated basis. The Company is
not aware of any state of facts that casts doubt on the validity or
enforceability of any of the material Intellectual Property. For the
purposes of this subparagraph, "Intellectual Property" means (i) any
trade marks, trade names, business names, brand names,
-16-
service marks, computer software, computer programs, copyrights,
including any performing, author or moral rights, designs, inventions,
patents, franchises, formulae, processes, know-how, technology and
related goodwill, (ii) any applications, registrations, issued
patents, continuations in part divisional applications or analogous
rights or licence rights therefor, and (iii) other intellectual or
industrial property, in each case owned or used by the Company or a
subsidiary.
(qq) Except as to be set out in the Canadian Prospectus, Registration
Statement, Disclosure Package and the U.S. Final Prospectus, none of
the Company or its subsidiaries have any material responsibility or
obligation to pay or have paid on its behalf any commission, royalty
or similar payment to any person with respect to its property rights
as of the Closing Date.
(rr) All of the representations and warranties made by the Company in this
Agreement will continue to be true and correct as of the Closing Time
(as hereinafter defined).
(ss) The net proceeds of the sale of Offered Shares will be used by the
Company as described in the Canadian Prospectus, Registration
Statement, Disclosure Package and the U.S. Final Prospectus.
(tt) Except as to be disclosed in the Canadian Prospectus, the Disclosure
Package, Registration Statement and the U.S. Final Prospectus, no
labor problem or dispute with the employees or former employees of the
Company or any of its subsidiaries exists or is threatened or
imminent, and the Company is not aware of any existing or imminent
labor disturbance by the employees of any of its or its subsidiaries'
principal suppliers, contractors or customers, that could reasonably
be expected to have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(uu) Except as to be disclosed in the Canadian Prospectus, the Disclosure
Package, Registration Statement and the U.S. Final Prospectus, there
are no grievances or disputes from employees or former employees of
the Company or its subsidiaries existing, imminent or threatened, that
could reasonably be expected to have a material adverse effect on the
Company and its subsidiaries taken as a whole.
(vv) The Company and each of its subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and
in such amounts as are prudent and customary in the businesses in
which they are engaged; all policies of insurance and fidelity or
surety bonds insuring the Company or any of its subsidiaries or their
respective businesses, assets, employees, officers and directors are
in full force and effect; the Company and its subsidiaries are in
compliance with the terms of such policies and instruments in all
material respects; and, other than as disclosed in writing to the
Underwriters, and is not material, there are no claims by the Company
or any of its subsidiaries under any such policy or instrument as to
which any insurance company is denying liability
-17-
or defending under a reservation of rights clause; neither the Company
nor any such subsidiary has been refused any insurance coverage sought
or applied for; and none of the Company or any such subsidiary has any
reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue
its business at a cost that would not have a material adverse effect,
on the Company and its subsidiaries, taken as a whole.
(ww) The Company and each of its subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management's general
or specific authorizations; (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity
with generally accepted accounting principles in Canada and to
maintain asset accountability; (iii) access to assets is permitted
only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. The
Company and its subsidiaries are not aware of any material weakness in
their internal controls over financial reporting.
(xx) The Company and its subsidiaries maintain "disclosure controls and
procedures" (as such term is defined in Rule 13a-15(e) under the ▇▇▇▇
▇▇▇); and the Company believes that such disclosure controls and
procedures are effective.
(yy) There is and has been no failure on the part of the Company or any of
the Company's directors or officers, in their capacities as such, to
comply with any applicable provision of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002
and the rules and regulations promulgated in connection therewith,
including Section 402 related to loans and Sections 302 and 906
related to certifications.
2. AGREEMENTS TO SELL AND PURCHASE. The Company hereby agrees to sell the
Offered Shares to the Underwriters, and the Underwriters hereby agrees to
purchase the Offered Shares from the Company, all on the terms and conditions
described herein.
The Company hereby agrees that it will not, without the prior written
consent of BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc., on behalf of the Underwriters (such consent
not to be unreasonably withheld), during the period ending 90 days after the
Closing Date:
(a) offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend, or otherwise transfer or dispose
of, directly or indirectly, any common shares of the Company or any
securities convertible into or exercisable or exchangeable for common
shares of the Company or file any registration statement under the
1933 Act with respect to any of the foregoing (other than a
registration statement filed in connection with any issuance permitted
in clause (d) below); or
-18-
(b) enter into any swap or other arrangement that transfers to another, in
whole or in part, directly or indirectly, any of the economic
consequences of ownership of the common shares of the Company or such
other securities,
whether any such transaction described in clause (a) or (b) above is to be
settled by delivery of common shares of the Company or such other securities, in
cash or otherwise. The foregoing provisions shall not apply to:
(a) the Offered Shares to be sold hereunder;
(b) the Flow-Through Shares to be sold pursuant to the Flow-Through
Underwriting Agreement;
(c) common shares of the Company issued pursuant to the Company's existing
share purchase, option, incentive or bonus plans; and
(d) the issuance by the Company of common shares of the Company upon the
exercise of outstanding warrants or the conversion or exchange of
convertible or exchangeable securities outstanding on the date hereof
and disclosed in the Canadian Prospectus and the U.S. Prospectus.
3. TERMS OF PUBLIC OFFERING. The Company has been advised that the Offered
Shares are to be offered to the public in the Qualifying Provinces, the United
States and other jurisdictions (provided any offers in jurisdictions other than
Canada and the United States will be made on a basis which is exempt from
registration and prospectus requirements under applicable laws), either directly
through the Underwriters or through members of a selling syndicate to be
established by the Underwriters. The Underwriters will comply with all
applicable laws in connection with the offer and sale of the Offered Shares. The
Underwriters agree that any sales of Offered Shares in the United States will be
conducted through an affiliate of one or more of the Underwriters duly
registered to do so in the relevant jurisdiction in which such sales are being
made.
4. PAYMENT AND DELIVERY. Payment for the Initial Shares which the Underwriters
have elected to purchase in accordance with Section 2 shall be made by wire
transfer of same-day funds to an account designated by the Company, or in such
other form as may be agreed between the Company and BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc. The
foregoing payment shall be made in an amount net of the underwriting fee (the
"Fee") of 5%, or CDN$0.2085 per Offered Share. The foregoing payment shall be
made against delivery of the Initial Shares being purchased by the Underwriters,
no later than 6:00 a.m. (Vancouver time), on July 12, 2006, or at such other
time on the same or such other date (not later than 42 days after the date of
the MRRS decision document issued by the Reviewing Authority in respect of the
Canadian Final Prospectus) as shall be agreed to in writing between the Company
and the Underwriters. The time and date of such payment are referred to herein
as the "Closing Date". The Closing Date for the purchase of the Initial Shares
shall occur on the same date and at the same time as the "Closing Date" of the
purchase and sale of the Flow-Through Shares pursuant to the Flow-Through
Underwriting Agreement.
-19-
Certificates for the Offered Shares shall be in definitive form and
registered in such names and in such denominations as the Underwriters shall
request in writing not later than the business day prior to the Closing Date.
The certificates evidencing the Offered Shares shall be delivered to, or at the
direction of, BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc. on the Closing Date for the respective
accounts of the Underwriters, with any transfer taxes payable in connection with
the transfer of the Offered Shares, if any, duly paid by the Company, against
payment of the purchase price therefor.
In the event that the Over-Allotment Option is exercised, the Additional
Shares issued upon exercise thereof shall be deemed to form part of the offering
for the purposes hereof and all of the terms and conditions relating to the
purchase and sale of the Initial Shares, and any reference to "Closing Date"
herein, shall apply to the purchase and sale of the Additional Shares.
BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc. shall give prompt written notice, on behalf of the
Underwriters, to the Company when, in the opinion of the Underwriters, they have
ceased distribution to the public of the Offered Shares. Such notice will also
specify the total proceeds realized in each of the provinces of Canada from such
distribution.
5. CONDITIONS TO THE UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters to purchase and pay for the Offered Shares on the Closing Date are,
in addition to the conditions described elsewhere in this Agreement, subject to
the following further conditions:
(a) The Registration Statement has become effective and no stop order
suspending the effectiveness of the Registration Statement or
preventing or suspending the use of the U.S. Prospectus or any Free
Writing Prospectus or Issuer Free Writing Prospectus shall have been
issued under the 1933 Act and no proceedings for that purpose shall
have been instituted or shall be pending or, to the knowledge of the
Underwriters or the knowledge of the Company, shall be contemplated by
the SEC. In addition, no order having the effect of ceasing or
suspending the distribution of the Offered Shares or the trading in
the common shares of the Company or any other securities of the
Company shall have been issued by any securities commission,
securities regulatory authority or stock exchange in Canada or the
United States and no proceedings for that purpose shall have been
instituted or pending or, to the knowledge of the Company, shall be
contemplated by any securities commission, securities regulatory
authority or stock exchange in Canada or the United States; and any
request on the part of any Canadian Securities Commission or the SEC
for additional information from the Company shall have been complied
with; the Company shall have complied with all filing requirements
applicable to any Issuer Free Writing Prospectus used or referred to
after the date hereof.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by two executive
officers of the Company, in their capacity as such, in a form
satisfactory to the Underwriters and their counsel, acting reasonably,
certifying, among other things, that the representations and
warranties of the Company contained in this Agreement are true and
correct as of the Closing Date and that the Company has complied with
all of the agreements
-20-
and satisfied all of the conditions on its part to be performed or
satisfied hereunder on or before the Closing Date. The officers
signing and delivering such certificate may rely upon the best of
their knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion
of, Gowling ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, Canadian counsel to the Company,
dated the Closing Date, with respect to such matters as the
Underwriters and their counsel may reasonable request, including those
matters identified in Schedule "B" hereto. In giving such opinion,
such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the laws of the Provinces of British
Columbia, Alberta and Ontario and the federal laws of Canada
applicable therein, upon opinions of local counsel, who shall be
counsel satisfactory to counsel for the Underwriters, acting
reasonably, in which case the opinion shall state that they believe
that they and the Underwriters are justified in relying upon such
opinion. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the Company and certificates
of public officials, provided that such certificates have been
delivered to the Underwriters. The opinion letter referred to in this
subparagraph (c) shall be rendered to the Underwriters at the request
of the Company and shall so state therein.
(d) The Underwriters shall have received on the Closing Date an opinion of
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special United States counsel for the Company,
dated the Closing Date, with respect to such matters as the
Underwriters and their counsel may reasonable request, including those
matters identified in Schedule "C" hereto. The opinion letter referred
to in this subparagraph (d) shall be rendered to the Underwriters at
the request of the Company and shall so state therein.
(e) The Underwriters shall have received on each of the dates of the
Canadian Final Prospectus and the Closing Date an opinion of,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & Malakoe, special counsel for the Company, dated the
Closing Date, with respect to title to the mining claims and mineral
rights held, directly or indirectly by the Company in Nunavut, in form
and substance satisfactory to the Underwriters and their counsel,
acting reasonably. The opinion letter referred to in this subparagraph
(e) shall be rendered to the Underwriters at the request of the
Company and shall so state therein.
(f) The Underwriters shall have received on the Closing Date an opinion,
dated the Closing Date, of Fasken ▇▇▇▇▇▇▇▇▇ DuMoulin LLP, Canadian
counsel for the Underwriters, dated the Closing Date, in form and
substance satisfactory to the Underwriters.
(g) The Underwriters shall have received on the Closing Date an opinion,
dated the Closing Date, of White & Case LLP, United States counsel for
the Underwriters, dated the Closing Date, in form and substance
satisfactory to the Underwriters.
-21-
(h) The Underwriters shall have received, on each of the date of the
Canadian Final Prospectus and the Closing Date, a letter dated the
date of the Canadian Final Prospectus and the Closing Date, as the
case may be, in form and substance satisfactory to the Underwriters,
acting reasonably, from KPMG LLP, independent chartered accountants,
containing statements and information of the type ordinarily included
in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial and statistical information
included or incorporated by reference in the Canadian Final Prospectus
and the U.S. Final Prospectus.
(i) The Offered Shares shall have been approved for listing by the
American Stock Exchange subject only to official notice of issuance
thereof, and shall have been conditionally approved for listing by the
Toronto Stock Exchange, subject only to official notice of issuance
thereof and customary post-closing filing requirements.
(j) If Newmont has elected not to exercise its right to purchase up to
19.9% of the Offered Shares pursuant to a subscription agreement
between the Company and Newmont dated November 17, 2005, the
Underwriters shall have received written confirmation thereof from
Newmont on or before the Closing Date.
(k) On or before the Closing Date, the Underwriters and counsel for the
Underwriters shall have received from the Company such further
certificates, documents and other information as they may reasonably
request.
6. FURTHER COVENANTS. In further consideration of the agreements of the
Underwriters herein contained, the Company covenants with each Underwriter as
follows:
(a) To notify the Underwriters promptly, and confirm the notice in
writing:
(i) when any Issuer Free Writing Prospectus shall have first been
used, when any post-effective amendment to the Registration
Statement shall have been filed with the SEC or shall have become
effective, and when any supplement to the U.S. Prospectus or
Canadian Prospectus or any amended U.S. Prospectus or Canadian
Prospectus shall have been filed;
(ii) of the receipt of any comments from the Canadian Securities
Commissions or the SEC;
(iii) of any request by any of the Canadian Securities Commissions to
amend the Canadian Prospectus or for additional information or of
any request by the SEC to amend the Registration Statement or to
amend or supplement the U.S. Prospectus or for additional
information;
(iv) of the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or of any order
preventing or suspending the use of any prospectus, or of the
suspension of the qualification of the Offered Shares for
offering and sale in any jurisdiction, or of the
-22-
institution or, to the knowledge of the Company, threatening of
any proceedings for any of such purposes; and
(v) of the issuance by any of the Canadian Securities Commissions or
any stock exchange of any order having the effect of ceasing or
suspending the distribution of the Offered Shares or the trading
in the common shares of the Company, or of the institution or, to
the knowledge of the Company, threatening of any proceedings for
any such purpose.
The Company will use every reasonable commercial effort to prevent the
issuance of any stop order, any order preventing or suspending the use
of any prospectus or any order ceasing or suspending the distribution
of the Offered Shares or the trading in the common shares of the
Company and, if any such order is issued, to obtain the revocation
thereof at the earliest possible time.
(b) Not to file or to make at any time any amendment to the Registration
Statement, any amendment or supplement to the Canadian Prospectus or
the U.S. Prospectus, of which the Underwriters shall not have
previously been advised and furnished a copy or to which the
Underwriters shall have reasonably objected promptly after reasonable
notice thereof; provided, however, that this provision shall not
prohibit the Company from complying with its timely disclosure and
other obligations under applicable securities legislation and the
requirements of any relevant stock exchange arising out of any
material change or change in material information.
(c) To furnish to the Underwriters, without charge:
(i) three signed copies of the Registration Statement (including all
exhibits thereto, documents filed therewith (including
photocopies of the Company Form F-X) and amendments thereof) and
an additional conformed copy of the Registration Statement
(without exhibits thereto) for delivery to each Underwriter; and
(ii) at any time beginning on the date hereof and ending at the end of
the period described in sub-section (e) below, at the place or
places which the Underwriters may reasonably request, the
Underwriters' reasonable requirements of the commercial copies of
the Canadian Prospectus, the U.S. Prospectus and any Free Writing
Prospectus or Issuer Free Writing Prospectus. Such deliveries
shall be made as soon as possible after the filing of such
documents and, in any event, within one business day of such
filing.
(d) The Company agrees that it has not and, unless it obtains the prior
written consent of the Underwriters, the Company will not make any
offer relating to the Offered Shares that would constitute an Issuer
Free Writing Prospectus or that would otherwise constitute a Free
Writing Prospectus required to be filed by the Company with the SEC or
retained by the Company under Rule 433 of the 1933 Act. Any free
writing prospectus consented to by the Underwriters is hereinafter
-23-
referred to as a "Permitted Free Writing Prospectus." The Company
agrees that (x) it will treat each Permitted Free Writing Prospectus
as an Issuer Free Writing Prospectus and (y) it will comply with the
requirements of Rules 164 and 433 under the 1933 Act applicable to any
Permitted Free Writing Prospectus, including in respect of timely
filing with the SEC, legending and record keeping.
(e) If, at any time in the period after the time of the initial
distribution of the Offered Shares until the completion of the
distribution of the Canadian Preliminary Prospectus and the U.S.
Preliminary Prospectus to offerees of the Offered Shares, any event
shall occur or condition exist as a result of which it is necessary to
amend the Disclosure Package, Registration Statement or supplement or
amend the U.S. Prospectus or the Canadian Prospectus in order that the
Disclosure Package, Registration Statement, U.S. Prospectus or the
Canadian Prospectus will not include any untrue statements of a
material fact or omit to state a material fact necessary in order to
make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser (or
in lieu thereof, the notice referred to in Rule 173 of the ▇▇▇▇ ▇▇▇)
or if, in the opinion of the Company, it is necessary to amend the
Disclosure Package, Registration Statement or amend or supplement the
Canadian Prospectus or the U.S. Prospectus to comply with the Canadian
Securities Laws, the 1933 Act or the applicable rules and regulations
thereunder, forthwith to prepare, file with the SEC or any Canadian
Securities Commission and furnish to the Underwriters and to the
dealers (whose names and addresses the Underwriters will furnish to
the Company) to which Offered Shares may have been sold by the
Underwriters and to any other dealers upon request, either amendments
or supplements to the U.S. Prospectus or the Canadian Prospectus (in
the English language) (to be effected, if necessary, by the filing
with the SEC of a post-effective amendment to the Registration
Statement) so that the statements in the U.S. Prospectus or the
Canadian Prospectus as so amended or supplemented will not include any
untrue statements of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances when the U.S. Prospectus or Canadian Prospectus is
delivered to a purchaser, not misleading or so that the Disclosure
Package, Registration Statement, the U.S. Prospectus or the Canadian
Prospectus, as amended or supplemented, will comply with applicable
law. The expense of complying with this Section 6(e) shall be borne by
the Company in respect of any amendment or supplement required during
the nine month period after the effectiveness of the Registration
Statement or the Canadian Prospectus, as the case may be, and by the
Underwriters thereafter. Concurrently with the delivery of an
amendment or supplement to the Canadian Preliminary Prospectus and the
Canadian Final Prospectus to the Underwriters, the Company shall
deliver to the Underwriters documents similar to those referred to in
Section 5(h), in each case in respect of and dated the date of the
amendment or supplement to the Canadian Preliminary Prospectus or the
Canadian Final Prospectus, as applicable.
-24-
(f) To use its reasonable efforts to qualify the Offered Shares for offer
and sale under the securities or Blue Sky laws of such United States
jurisdictions as the Underwriters shall reasonably request.
(g) During the period when the U.S. Prospectus is required to be delivered
under the 1933 Act:
(i) to file promptly all documents required to be filed by the
Company with the SEC pursuant to Section 13 or 15(d) of 1934 Act
subsequent to the time the Registration Statement becomes
effective; and
(ii) in the event that any document is filed with any Canadian
Securities SEC subsequent to the time the Registration Statement
becomes effective that is deemed to be incorporated by reference
in the Canadian Prospectus, if required by the 1933 Act, to file
such document as an exhibit to the Registration Statement by
post-effective amendment or otherwise in accordance with the 1933
Act or the ▇▇▇▇ ▇▇▇.
(h) To comply to the best of its ability with the 1933 Act and the 1934
Act and the Canadian Securities Laws so as to permit the completion of
the distribution of the Offered Shares as contemplated in this
Agreement and in the Canadian Prospectus and in the U.S. Prospectus.
(i) Not to issue any press release or other public announcement between
the date hereof and the Closing Date without first consulting with BMO
▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc., on behalf of the Underwriters.
In further consideration of the agreements of the Company herein contained,
each of the Underwriters covenants with the Company as follows:
(a) It has not and will not use, authorize use of, refer to, or
participate in the planning for use of, any "free writing prospectus"
as defined in Rule 405 under the 1933 Act (which term includes use of
any written information furnished to the SEC by the Company and not
incorporated by reference into the Registration Statement and any
press release issued by the Company) other than (i) a free writing
prospectus that contains no "issuer information" (as defined in Rule
433(h)(2) under the ▇▇▇▇ ▇▇▇) that was not included (including through
incorporation by Reference) in the U.S. Preliminary Prospectus as
supplemented or amended at the Executive Time or a previously filed
Free Writing Prospectus, or (ii) any Free Writing Prospectus approved
by the Company in advance in writing.
(b) It will not distribute any free writing prospectus referred to in
clause (j)(i) in a manner reasonably designed to lead to its broad
unrestricted dissemination.
(c) It will not, without the prior written consent of the Company, use any
free writing prospectus (including any free writing prospectus that
contains the final terms of the Offered Shares); provided that the
Company shall file any free writing
-25-
prospectus that contains the final terms of the Offered Shares with
the SEC pursuant to Rule 433 of the 1933 Act.
(d) It will, pursuant to reasonable procedures developed in good faith,
retain copies of each free writing prospectus used or referred to by
it, to the extent required by Rule 433 under the 1933 Act.
7. EXPENSES. Whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, the Company agrees to pay or
cause to be paid all expenses incident to the performance of its obligations
under this Agreement, including:
(a) the fees, disbursements and expenses of the Company's Canadian, United
States and other counsel and the Company's accountants in connection
with the registration and delivery of the Offered Shares under the
1933 Act and under the Canadian Securities Laws and all other fees or
expenses in connection with the preparation and filing of the
Registration Statement, the related Form F-X, the Canadian Prospectus,
the U.S. Prospectus, any Issuer Free Writing Prospectus and any
amendments thereto (the "Supplementary Material"), including all
printing costs associated therewith, and the mailing and delivering of
copies thereof to the Underwriters and dealers;
(b) the fees of the Underwriters' Canadian, United States and other
counsel in connection with the registration and delivery of the
Flow-Through Shares under the Flow-Through Underwriting Agreement and
the Offered Shares under the 1933 Act and under the Canadian
Securities Laws, to a maximum of $150,000, exclusive of disbursements
and applicable taxes,
(c) all costs and expenses related to the transfer and delivery of the
Offered Shares to the Underwriters, including any transfer or other
taxes payable thereon;
(d) the cost of printing or producing any Blue Sky or legal investment
memorandum in connection with the offer and sale of the Offered Shares
under state securities laws and all expenses in connection with the
qualification of the Offered Shares for offer and sale under state
securities laws as provided in Section 6(f) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection
with the Blue Sky or legal investment memorandum;
(e) all filing fees and disbursements of counsel to the Underwriters
incurred in connection with the review and qualification of the terms
of the sale of the Offered Shares by the NASD;
(f) all fees and expenses in connection with the preparation and filing of
the Registration Statement and all costs and expenses incident to
listing the Offered Shares on the Toronto Stock Exchange and American
Stock Exchange;
(g) the cost of printing certificates representing the Offered Shares;
-26-
(h) the costs and charges of any transfer agent, registrar or depositary;
(i) the costs and expenses of the Company in connection with the marketing
of the offering of the Offered Shares; and
(j) all other costs and expenses incident to the performance of the
obligations of the Company hereunder for which provision is not
otherwise made in this Section.
8. INDEMNITY AND CONTRIBUTION. The Company covenants and agrees to indemnify
each of the Underwriters, each person, if any, who controls any Underwriter
within the meaning of either Section 15 of the 1933 Act or Section 20 of the
1934 Act and their respective directors, officers, employees and agents
(individually, an "Indemnified Party" and collectively, the "Indemnified
Parties"), against all losses (other than a loss of profits or consequential
damages), claims, damages, liabilities, costs or expenses caused or incurred by
reason of:
(a) any statement, other than a statement relating solely to, or provided
solely by, the Underwriters, contained in the Canadian Prospectus,
U.S. Prospectus, Registration Statement, Free Writing Prospectus or
Issuer Free Writing Prospectus (including any documents incorporated
therein by reference) or in any Supplemental Material or additional or
ancillary material, information, evidence, return, report,
application, statement or document (collectively, the "Additional
Material") that has been filed by or on behalf of the Company under
the Canadian Securities Laws or 1933 Act which at the time and in the
light of the circumstances under which it was made contains or is
alleged to contain a misrepresentation; or
(b) any order made or inquiry, investigation or proceeding commenced or
threatened by any securities commission or other competent authority
based upon any misrepresentation or alleged misrepresentation in any
of the Canadian Prospectus, U.S. Prospectus, Registration Statement,
Free Writing Prospectus or Issuer Free Writing Prospectus (or any
document incorporated therein by reference) or any Additional
Material, other than a statement relating solely to, or provided
solely by, the Underwriters, which prevents or restricts the trading
in the distribution to the public, as the case may be, of the Offered
Shares,
except where such losses, claims, damages, liabilities, costs or expenses arose
primarily from the negligence, wilful misconduct or fraudulent misrepresentation
of an Indemnified Party.
To the extent that any Indemnified Party is not a party to this agreement, the
Underwriters shall obtain and hold the right and benefit of the above-noted
indemnity in trust for and on behalf of such Indemnified Party and the Company
hereby consents to the enforcement by such non-signatory of its rights
hereunder.
If any matter or thing contemplated by this Section shall be asserted against
any Indemnified Party in respect of which indemnification is or might reasonably
be considered to be provided, such Indemnified Party will notify the Company as
soon as possible of the nature of such claim and the Company shall be entitled
(but not required) to assume the defence of any suit brought to enforce such
claim; provided, however, that the defence shall be through legal counsel
-27-
acceptable to such Indemnified Party and that no admission of liability or
settlement may be made by the Company or such Indemnified Party without the
prior written consent of the other, acting reasonably.
In any such claim, such Indemnified Party shall have the right to retain other
counsel to act on such Indemnified Party's behalf provided that the fees and
disbursements of such other counsel shall be paid by such Indemnified Party,
unless: (i) the Company and such Indemnified Party mutually agree to retain
other counsel; or (ii) such Indemnified Party reasonably believes that the
representation of the Company and such Indemnified Party by the same counsel
would be inappropriate due to actual or potential differing interests, in which
event such fees and disbursements shall be paid by the Company to the extent
that they have been reasonably incurred.
In the event that the indemnity provided for in this Section is declared by a
court of competent jurisdiction to be illegal or unenforceable as being contrary
to public policy or for any other reason, the Underwriters and the Company shall
contribute to the aggregate of all losses, claims, costs, damages, expenses or
liabilities (except loss of profits or consequential damages) of the nature
provided for above such that the Underwriters shall be responsible for that
portion represented by the percentage that the portion of the Fee payable by the
Company to the Underwriters bears to the gross proceeds realized from the sale
of the Offered Shares whether or not the Underwriters have been sued together or
separately and the Company shall be responsible for the balance, provided that,
in no event, shall any Underwriter be responsible for any amount in excess of
the portion of the Fee actually received by it. In the event that the Company is
held to be entitled to contribution from the Underwriters under the provisions
of any statute or law, the Company shall be limited to contribution from an
Underwriter in an amount not exceeding the lesser of: (a) the portion of the
full amount of losses, claims, costs, damages, expenses, liabilities, giving
rise to such contribution for which each Underwriter is responsible, as
determined above; and (b) the amount of the Fee actually received by such
Underwriter. Notwithstanding the foregoing, a person guilty of fraudulent
misrepresentation or negligence or wilful misconduct shall not be entitled to
contribution from any other party. Any party entitled to contribution will,
promptly after receiving notice of commencement of any claim, action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties under this Section, notify such party
or parties from whom contribution may be sought. In no case shall such party
from whom contribution may be sought be liable under this agreement unless such
notice shall have been provided, but the omission to so notify such party shall
not relieve the party from whom contribution may be sought from any other
obligation it may have otherwise than under this Section. The right to
contribution provided in this Section shall be in addition and not in derogation
of any other right to contribution which the Underwriters may have by statute or
otherwise by law.
9. TERMINATION.
(a) If the Company does not comply in all material respects with the
conditions hereof, and such non-compliance does or would reasonably be
expected to prevent, restrict or otherwise adversely affect the
distribution of the Offered Shares in accordance with the terms hereof
or would reasonably be expected to impact adversely on the investment
quality or marketability of the Offered Shares
-28-
in any of the jurisdictions in which the Offered Shares may be sold
under the terms hereof, any Underwriter may terminate its obligations
hereunder by written notice to that effect given to the Company on or
prior to the time of closing on the Closing Date (the "Closing Time")
and in such event such Underwriter's obligations shall be at an end.
It is understood that the Underwriters may waive in whole or in part
noncompliance with any of the conditions contained herein or extend
the time for compliance therewith without prejudice to such rights in
respect of any other condition or conditions or any other or
subsequent breach or non-compliance, provided that any such waiver or
extension shall be binding upon the Underwriters only if the same is
in writing.
(b) If, after the Execution Time and prior to the Closing Time, there
shall occur any material adverse change in the business, affairs,
operations, assets, liabilities (contingent or otherwise), capital or
control of the Company and its subsidiaries, taken as a whole (the
"Condition of the Company"), or the Underwriters become aware of any
undisclosed material adverse information relating to the Company and
its subsidiaries, taken as a whole, or other adverse material
development which, in the opinion of any of the Underwriters, acting
reasonably, would have a material adverse effect on the market price
of the Offered Shares, then each of the Underwriters shall be
entitled, at its option, to terminate its obligations under this
Agreement by written notice to that effect given to the Company at or
prior to the Closing Time.
(c) If at any time during the period commencing on the date hereof and
ending at the Closing Time there should develop, occur or come into
effect or existence any event, action, state, condition or occurrence
of national or international consequence, including any act of
terrorism, war or like event, or any law or regulation, which in the
opinion of any of the Underwriters, acting reasonably, seriously
adversely affects, or would seriously adversely affect the Canadian,
United States or international financial markets or the Condition of
the Company, each of the Underwriters shall be entitled, at its
option, to terminate its obligations under this Agreement by written
notice to that effect given to the Company at or prior to the Closing
Time.
(d) If after the date hereof and prior to the Closing Time, there shall
occur any change in any applicable securities laws, rules, regulations
or policies, or if any enquiry, action, suit, investigation or other
proceeding, whether formal or informal, in relation to the Company or
the distribution of the Offered Shares should be instituted or any
order under or pursuant to any laws or regulations of Canada or of any
of the Qualifying Provinces or of the United States or of any of the
states thereof or by any relevant stock exchanges or any other
regulatory or governmental authority should be made or issued (except
for any such order based upon the activities or the alleged activities
of the Underwriters and not of the Company) which, in the reasonable
opinion of any of the Underwriters, operates to prevent or restrict
the trading or the distribution of the Offered Shares or seriously
adversely affects or will seriously adversely affect the market price
of the Offered Shares, each of the Underwriters shall be entitled, at
its option, to
-29=
terminate its obligations under this Agreement by written notice to
that effect given to the Company at or prior to the Closing Time.
(e) Any termination by any of the Underwriters pursuant to the provisions
hereof shall be effected by notice in writing delivered or telecopied
to the Company at its address as herein set forth. The rights of
termination contained in Sections (a), (b), (c) or (d) above are in
addition to any other rights or remedies the Underwriters may have in
respect of any default, misrepresentation, act or failure to act of
the Company in respect of any matters contemplated by this Agreement.
In the event of any such termination, there shall be no further
liability on the part of the Company or the Underwriters except for
any liability provided for in Sections 7 and 8 hereof.
10. UNDERWRITERS' OBLIGATIONS. The Underwriters' obligations to purchase the
Offered Shares in accordance with this Agreement shall be several and not joint
in that each of the Underwriters shall severally be obligated to purchase only
the percentage of the aggregate number of Offered Shares set opposite its name
as follows:
BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc. 40.0%
Paradigm Capital Inc. 30.0%
Dundee Securities Corporation 15.0%
Canaccord Capital Corporation 5.0%
RBC Dominion Securities Inc. 5.0%
National Bank Financial Inc. 2.5%
Salman Partners Inc. 2.5%
If an Underwriter (a "Refusing Underwriter") does not complete the purchase and
sale of the Offered Shares which that Underwriter has agreed to purchase under
this Agreement (other than in accordance with Section 9) (the "Defaulted
Shares"), BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc. may delay the Closing Date for not more than
five days and the remaining Underwriters (the "Continuing Underwriters") will be
entitled, at their option, to purchase all but not less than all of the
Defaulted Shares pro rata according to the number of Offered Shares to have been
acquired by the Continuing Underwriters under this Agreement or in any
proportion agreed upon, in writing, by the Continuing Underwriters. If no such
arrangement has been made and the number of Defaulted Shares to be purchased by
the Refusing Underwriter(s) does not exceed 10% of the Offered Shares, the
Continuing Underwriters will be obligated to purchase the Defaulted Shares on
the terms set out in this Agreement in proportion to their obligations under
this Agreement. If the number of Defaulted Shares to be purchased by Refusing
Underwriters exceeds 10% of the Offered Shares, the Continuing Underwriters will
not be obliged to purchase the Defaulted Shares and, if the Continuing
Underwriters do not elect to purchase the Defaulted Shares:
(a) the Continuing Underwriters will not be obliged to purchase any of the
Offered Shares;
(b) the Company will not be obliged to sell less than all of the Offered
Shares; and
-30-
(c) the Company will be entitled to terminate its obligations under this
Agreement arising from its acceptance of this offer to purchase the
Offered Shares, in which event there will be no further liability on
the part of the Company or the Continuing Underwriters, except
pursuant to the provisions of Sections 7 and 8.
Nothing in this Agreement obliges the Company to sell under this Agreement
less than all the Offered Shares or will relieve from responsibility to the
Company under this Agreement any Underwriter that has defaulted in its
obligation to purchase its applicable percentage of the aggregate number of such
Offered Shares to be sold hereunder.
11. COUNTERPARTS. This Agreement may be signed in two or more counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
12. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Province of British Columbia and federal laws of
Canada applicable therein. All parties hereby attorn to the exclusive
jurisdiction of the courts of the Province of British Columbia to settle all
disputes which may arise hereunder or in connection herewith.
13. HEADINGS. The headings of the sections of this Agreement have been inserted
for convenience of reference only and shall not be deemed to be a part of this
Agreement.
14. NOTICES. All notices or other communications by the terms hereof required
or permitted to be given by one party to another shall be given in writing by
personal delivery or by telecopier, as follows:
if to the Company at:
Miramar Mining Corporation
▇▇▇ - ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Gowling ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP
4600 - ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇ ▇▇▇▇
-31-
if to the Underwriters at:
BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc.
1800 - ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇ ▇▇▇▇
Paradigm Capital Inc.
▇▇▇▇ - ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Dundee Securities Corporation
▇▇ ▇▇▇ ▇▇▇▇▇
3424 - ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Canaccord Capital Corporation
BCE Place
3000 - ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
RBC Dominion Securities Inc.
▇▇▇▇ - ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
-32-
National Bank Financial Inc.
3200 - ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Salman Partners Inc.
2230 - ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Fasken ▇▇▇▇▇▇▇▇▇ DuMoulin LLP
2100 - ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇.▇., ▇▇▇ ▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
and if so given, shall be deemed to have been given and received upon receipt by
the addressee or a responsible officer of the addressee if delivered, or upon
receipt of a telecopier transmission confirmation during normal business hours,
as the case may be. Any party may, at any time, give notice in writing to the
others in the manner provided above of any change of address or telecopier
number.
15. REPRESENTATIVE OF UNDERWRITERS. The Underwriters agree that any agreement,
waiver, order, notice (other than a notice pursuant to Section 10), direction,
receipt or other action to be made, given or taken by the Underwriters hereunder
may be made or given by BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc. (the "Representative") on behalf
of each of the Underwriters.
16. TIME OF ESSENCE. Time shall be of the essence in this Agreement.
17. REPRESENTATIONS, WARRANTIES AND AGREEMENTS SURVIVE CLOSING. The
representations, warranties and agreements herein contained shall survive the
purchase by the Underwriters of the Offered Shares and shall continue in full
force and effect unaffected by any subsequent disposition of the Offered Shares.
-33-
If the foregoing is in accordance with your understanding, will you please
confirm your acceptance by signing below in the place indicated.
Yours truly,
BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ INC.
Per: "▇▇▇▇▇ ▇. ▇▇▇▇▇▇"
---------------------------------------
Authorized Signatory
PARADIGM CAPITAL INC.
Per: "▇▇▇▇ ▇▇▇▇▇▇▇"
---------------------------------------
Authorized Signatory
DUNDEE SECURITIES CORPORATION
Per: "▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇"
---------------------------------------
Authorized Signatory
CANACCORD CAPITAL CORPORATION
Per: "▇▇▇▇ ▇▇▇▇▇"
---------------------------------------
Authorized Signatory
RBC DOMINION SECURITIES INC.
Per: "▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇"
---------------------------------------
Authorized Signatory
NATIONAL BANK FINANCIAL INC.
Per: "▇▇▇▇▇ ▇▇▇▇▇▇"
---------------------------------------
Authorized Signatory
SALMAN PARTNERS INC.
Per: "▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇"
---------------------------------------
Authorized Signatory
MIRAMAR MINING CORPORATION
Per: "▇▇▇▇▇▇ ▇▇▇▇▇▇▇"
-----------------------
Authorized Signatory
SCHEDULE "A"
LIST OF SIGNIFICANT SUBSIDIARIES
NAME OF SUBSIDIARY JURISDICTION OF INCORPORATION
------------------ -----------------------------
Miramar Hope Bay Ltd. Northwest Territories
Miramar Con Mine Ltd. Ontario
LIST OF OTHER SUBSIDIARIES
NAME OF SUBSIDIARY JURISDICTION OF INCORPORATION
------------------ -----------------------------
Talapoosa Mining Corporation British Columbia
Miramar Giant Mine Ltd. British Columbia
Miramar Mining Canada Limited Ontario
Miramar Gold Corporation Nevada
688282 British Columbia Ltd. British Columbia
Miramar Bathurst Resources Ltd. Nunavut
Miramar Resources Ltd. British Columbia
Orcana Resource Corp. Nevada
Talapoosa Mining Inc. Nevada
Miramar HBG Inc. Quebec
Cambiex US Inc. Nevada
Con Exploration Ltd. Northwest Territories
Vol Mines Ltd. Ontario
SCHEDULE "B"
OPINION OF GOWLING ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP AND SIDE LETTER
1. Each of the Company and its Significant Subsidiaries is existing under the
laws of its jurisdiction of incorporation and has not been dissolved and has all
requisite corporate power and authority to carry on its business as presently
carried on and to own and lease its assets where such assets are owned or
leased.
2. All of the issued and outstanding shares in the capital of each Significant
Subsidiary are registered in the name of the Company.
3. The Company has all necessary corporate capacity and authority to enter
into and perform its obligations under this Agreement to create and issue the
Over-Allotment Option and to issue and sell the Offered Shares.
4. All necessary corporate action has been taken by the Company to authorize
the execution and delivery by the Company of this Agreement. This Agreement has
been duly executed and delivered by the Company and constitutes a legal, valid
and binding obligation of the Company enforceable in accordance with its terms,
subject to usual qualifications and exceptions.
5. All necessary corporate action has been taken by the Company to validly
authorize the creation and issuance of the Over-Allotment Option and the
issuance of the Offered Shares to the Underwriters and, the Company having
received the consideration for the issue thereof, the Offered Shares have been
validly issued and are outstanding as fully paid and non-assessable shares and
no holder of Offered Shares is or will be subject to personal liability for any
debts, obligations or acts of the Company solely by reason of being such a
holder. The share certificates evidencing the Offered Shares purchased by the
Underwriters have been duly signed by Pacific Corporate Trust Company and
delivered to the Underwriters.
6. The execution, delivery by the Company of this Agreement and the
performance of its obligations under this Agreement do not and will not
contravene, breach or result in any default:
(i) under the constating documents of the Company;
(ii) the resolutions of the directors or shareholders of the Company; or
(iii) any material agreement or instrument binding upon the Company or its
subsidiaries filed with Canadian Securities Administrators on the
System for Electronic Document Analysis and Retrieval.
7. The authorized capital of the Company is as set forth in the Canadian
Prospectus under the caption "Description of Share Capital" and the issued and
outstanding share capital of the Company will be stated as at the Closing Date.
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8. The Company is a reporting issuer in each of the Qualifying Provinces in
which the concept of a reporting issuer exists and is not on the list of
defaulting issuers maintained by the securities regulatory authorities in such
Qualifying Provinces.
9. All necessary documents have been filed and all necessary proceedings have
been taken and all other legal requirements have been fulfilled under the
securities laws of each of the Provinces of Canada, other than Quebec, to
qualify the issuance of the Over-Allotment Option to the Underwriters and the
Offered Shares to be offered and sold to the public in each Province of Canada,
other than Quebec, by or through registrants, investment dealers or brokers
registered under applicable legislation of such Provinces who have complied with
the relevant provisions of such legislation.
10. The statements set forth in Part II of the Registration Statement under the
caption "Indemnification", insofar as they purport to summarize certain
provisions of the articles of the Company and of the Business Corporations Act
(British Columbia), are accurate in all material respects.
11. The TSX has conditionally approved the listing and posting for trading of
the Offered Shares; subject to the Company fulfilling all of the requirements of
the TSX.
12. The statements in the Prospectus under the heading "Certain Income Tax
Considerations for Canadian Holders" is an accurate summary of the principal
Canadian federal income tax considerations under the Tax Act generally
applicable to holders of Offered Shares.
13. The Offered Shares are, at the date hereof, investments which are qualified
investments under the Tax Act for trusts governed by registered retirement
savings plans, registered retirement income funds, registered education savings
plans and deferred profit sharing plans.
14. Pacific Corporate Trust Company at its principal offices in the Cities of
Vancouver and Toronto has been duly appointed the transfer agent and registrar
for the common shares of the Company.
15. Such other matters as counsel to the Underwriters may reasonably require.
In addition to rendering the opinion set forth above, such counsel shall also
include a statement to the effect that such counsel has participated in the
preparation of the Disclosure Package and the Canadian Final Prospectus and in
conferences with officers and other representatives of the Company, U.S. counsel
for the Company, representatives of the independent accountants for the Company,
counsel for the Underwriters and representatives of the Underwriters at which
the contents of the Disclosure Package and the Canadian Final Prospectus and
related matters were discussed and although such counsel has not independently
verified, and (except as to those matters and to the extent set forth in the
opinion as to the matters listed in paragraphs 10 and 12 above) is not passing
upon and does not assume any responsibility for, the factual accuracy,
completeness or fairness of the statements contained in the Disclosure Package
and Canadian Final Prospectus, on the basis of such participation, no facts have
come to such counsel's attention which have caused such counsel to believe that
(i) the documents specified in a schedule to such counsel's letter, consisting
of those included in the Disclosure Package, when
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taken as a whole, as of the Applicable Time, contained any untrue statement of a
material fact or omitted to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, or (ii) as of the date of the Canadian Final Prospectus
and as of the Closing Date, the Canadian Final Prospectus included an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading (in each case, other than the financial
statements and other financial and statistical information, and the information
derived from the reports of or attributed to persons named in the Canadian Final
Prospectus under the heading "Interest of Experts", included or incorporated by
reference therein, as to which such counsel need express no belief).
SCHEDULE "C"
OPINION OF ▇▇▇▇▇▇ & WHITNEY LLP
1. The Offered Shares are duly listed, and admitted and authorized for
trading, subject to official notice of issuance, on the American Stock Exchange.
2. To the knowledge of such counsel, there is no franchise, contract or other
document of a character required to be filed as an exhibit to the Registration
Statement that is not filed as required.
3. The statements made in the U.S. Prospectus under the heading "Certain
Income Tax Considerations for U.S. Holders - U.S. Federal Income Tax
Consequences", to the extent that the foregoing statements constitute matters of
law or legal conclusions fairly present the information disclosed therein in all
material respects.
4. The Registration Statement has become effective under the 1933 Act and the
Form F-X was filed with the SEC prior to the effectiveness of the Registration
Statement; the filing of the U.S. Final Prospectus, and any supplements thereto,
has been made in the manner and within the time periods required by Form F-10
and the applicable rules and regulations of the SEC; to the knowledge of such
counsel, no stop order suspending the effectiveness of the Registration
Statement or any notice that would prevent its use has been issued, no
proceedings for that purpose have been instituted or threatened, and the
Registration Statement, and the U.S. Final Prospectus (other than the financial
statements and other financial and statistical information contained therein and
the information derived from the reports of or attributed to persons named in
the US. Final Prospectus under the heading "Interest of Experts", as to which
such counsel need express no opinion) and the Form F-X comply as to form in all
material respects with the applicable requirements of the 1933 Act and the rules
thereunder.
5. The Company is not and, after giving effect to the offering and sale of the
Offered Shares and the application of the proceeds thereof as described in the
Disclosure Package, will not be an "investment company" as defined in the
Investment Company Act of 1940, as amended.
6. No consent, approval, authorization, filing with or order of any U.S. court
or governmental agency or body is required to be obtained by the Company or its
subsidiaries for the performance of the Company's obligations under this
Agreement, except such as have been obtained under the 1933 Act and such as may
be required under the "blue sky" laws of any jurisdiction in connection with the
purchase and distribution of the Offered Shares by the Underwriters in the
manner contemplated in this Agreement and in the U.S. Prospectus and such other
approvals as have been obtained.
7. Neither the issue and sale of the Offered Shares, nor the consummation of
any other of the transactions herein contemplated nor the fulfillment of the
terms hereof will conflict with, result in a breach or violation of, or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or the Significant Subsidiaries pursuant to any U.S. statute, law, rule,
regulation, judgment, order or decree known to such counsel and applicable to
the Company or the Significant Subsidiaries of any U.S. court, regulatory body,
administrative
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agency, governmental body, arbitrator or other authority having jurisdiction
over the Company or the Significant Subsidiaries or any of its or their
properties.
8. To the knowledge of counsel, no holders of securities of the Company have
rights to the registration of such securities under the Registration Statement.
In addition to rendering the opinions set forth above, such counsel shall also
include a statement to the effect that such counsel has participated in the
preparation of the Registration Statement, the Disclosure Package and the U.S.
Prospectus and in conferences with officers and other representatives of the
Company, Canadian counsel for the Company, representatives of the independent
accountants for the Company, counsel for the Underwriters and representatives of
the Underwriters at which the contents of the Registration Statement, the
Disclosure Package and U.S. Final Prospectus and related matters were discussed
and although such counsel has not independently verified, and (except as to
those matters and to the extent set forth in the opinions referred to in
paragraph 3 of this Schedule "C") is not passing upon and does not assume any
responsibility for, the factual accuracy, completeness or fairness of the
statements contained in the Registration Statement, the Disclosure Package and
U.S. Final Prospectus, on the basis of such participation, nothing has come to
such counsel's attention which has caused such counsel to believe that (i) at
the Effective Time, the Registration Statement contained any untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (ii) the
documents specified in a schedule to such counsel's letter, consisting of those
included in the Disclosure Package, when taken as a whole, as of the Applicable
Time, contained any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or (iii) as of the
date of the U.S. Final Prospectus and as of the Closing Date, the U.S. Final
Prospectus included an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading (in each case, other
than the financial statements and other financial and statistical information,
and the information derived from the reports of or attributed to persons named
in the U.S. Preliminary Prospectus and the U.S. Final Prospectus under the
heading "Interest of Experts", included or incorporated by reference therein, as
to which such counsel need express no belief).
References to the U.S. Final Prospectus in this Schedule shall also include
any supplements thereto at the Closing Date.
